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TMI Blog2018 (5) TMI 1998X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Senior Counsel engaged by SKV Lawyers Offices, Advocates and appearing for the Petitioner submitted the following: "Learned senior counsel for the Review Petitioner submitted that the order dated 26.9.2017 in Petition No. 32/MP/2017 was passed by the four member bench of the Commission whereas the present Review Petition is listed before three member bench. Learned senior counsel for the Review Petitioner submitted that he would place on record a write-up on the legal position in this regard within one week. 2. The Commission permitted the learned senior counsel to place the legal position on record by 23.3.2018 to enable the Commission to take a view in the matter. 3. The Commission further directed that the present Review Petition and the other Review Petitions in which the issue of Coram is involved, shall be listed after the Commission decides the legal issue raised by the learned senior counsel." 2. SKV Lawyers Offices, Advocates for the Petitioner have filed an affidavit containing a "Note on quorum for Review Petition". It has been submitted that the correct legal position on quorum for hearing the review petition is as under: (a) Order 47 Rule 5 of the Code of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y (Appellate Tribunal) in Review Petition No. 4 of 2017 {Madhya Pradesh Power Management Co. Ltd. vs. M.P. Biomass Energy Developers Association & Ors.} and in Appeal No. 178 of 2016 & batch {Torrent Power Limited and Ors. vs. Gujarat Electricity Regulatory Commission and Ors.} has judiciously adhered to legal position settled in Maharaja Moheshur Sing (supra). (e) The present review petition as listed on 14.3.2018 was being adjudicated by the Commission comprising of only three members whereas the impugned order dated 26.9.2017 passed in Petition No. 32/MP/2017 was adjudicated by the Commission comprising of four Members and therefore, in the light of the aforementioned legal position, it is prudent that the Review Petition is heard by a quorum of equal number of Members who had passed the impugned order dated 26.9.2017. Analysis and Decision 3. The Central Commission was constituted under the Electricity Regulatory Commission Act, 1998 and continued as such under Section 76 of the Act which is extracted as under: "Section 76. (Constitution of Central Commission):- (1) There shall be a Commission to be known as the Central Electricity Regulatory Commission to exercise the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Save as otherwise provided in sub-section (3), every Member shall have one vote. (5) All orders and decisions of the Appropriate Commission shall be authenticated by its Secretary or any other officer of the Commission duly authorized by the Chairperson in this behalf." According to Section 91(1) of the Act, the Commission has to observe such rules of procedure in regard to transaction of business at its meetings (including the quorum at its meetings) as it may specify. The word "specified" has been defined in Section 2(62) of the Act as "specified by regulations made by the Appropriate Commission or the Authority, as the case may be, under the Act." The Commission specified the Central Electricity Regulatory Commission (Conduct of Business) Regulations, 1999 (hereinafter referred to as "CBR") in exercise of powers under Section 55 of the Electricity Regulatory Commission Act, 1998 (Act 14 of 1998) which has since been repealed with the enactment of Electricity Act, 2003 (the Act). However, in terms of clause (a) of sub-section (2) of Section 185 of the Act, CBR has been deemed to have been issued under the Act. 5. Relevant provisions of the CBR in so far as the issue of quor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided that where the review applications cannot be disposed of within the period as stipulated, the Commission shall record the reasons for the additional time taken for disposal of the review applications. Amendment of orders 103 A. Clerical or arithmetical mistakes in the orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Commission either of its own motion or on the application of any of the parties." 6. From the above provisions of the CBR, it is evident that proceedings before the Commission include proceedings of all nature that the Commission may hold in discharge of its functions under the Act which includes petitions for review of its own decisions, directions and orders. Further, the quorum for the proceedings before the Commission is two which means that no proceedings can take place without the presence of at least two members including ex-officio member of the Commission. However, as regards the review petition, only timeline for filing of petitions for review and disposal of such petitions has been indicated. The CBR is silent about the quorum for hearing the review petitions i.e. whether the review petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it." Further, Order 47 under the CPC deals with the procedural aspects of the review. The said order is extracted as under: "ORDER XLVII REVIEW 1. Application for review of judgment:- (1) Any person considering himself aggrieved- (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that where the judge or judges or any one of the judges who passed the decree or made the order, a review of which is applied for, continues or continue to be attached to the court at the time when the application for review is presented, and is not or are not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such judge or judges or any of them shall hear the application, and no other judge or judges of the court shall hear the same. It means that the same judges who passed the original order should decide the review petition unless they are precluded by absence or other cause from hearing the same. 10. It is pertinent to mention that there is no provision in the CBR akin to Section 114 or Order 47 Rules 1 & 5 of the CPC. The Constitution Bench of the Hon'ble Supreme Court in Union of India V. Madras Bar Association (2010) 11 SCC 1 while stating the difference between courts and tribunals explained how far statutory procedural rules, in particular the CPC, govern proceedings of the Tribunals. Relevant paragraphs of the judgment are extracted below: "45. Though both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh CPC cannot be held to be stricto sensu applicable to the State Commission, it can act as a guiding light as rightly stated by the State Commission in its affidavit dated 02/08/2016 filed in this Tribunal." According to the above judgment, Order 47 Rule 5 can act as the guiding principle for deciding the issue of quorum with regard to review of its own decisions, directions and orders by the Commission. 12. The general principle as per the CPC is that a review petition must always be heard by the same Court/Bench. However, there are situations in which this is not possible particularly in the present case where the Chairperson of the Hon'ble Commission who signed the orders in the main petitions is unavailable due to reason of superannuation. For the said situation, Order 47 Rule 5 provides that if a judge or judges or any one of the judges who passed the decree or made the order, a review of which is applied for, such judge or judges or any of them shall hear the review application, and no other judge or judges of the court shall hear the same, unless the judge or judges is not or are not precluded from absence or other cause for a period of six months next after the decre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso observed as under: "9.....Ideally the application for review should be answered by the Court which passes the decree or order and it is for the reasons that he is considered to be the best judge/person to appreciate, consider and answer the said application, he having himself passed the order or' decree sought to be reviewed. However, once such judge/presiding officer is not available owing to various reasons, viz. transfer, superannuation, death and alike reasons the other competent court is authorized and empowered to deal with the review application and the application cannot be dismissed merely on the ground that the said judge is no longer in position....." 13. In the light of the above judgment, it emerges that the review petition should be placed below the same judge or judges who heard the main petition and passed the order of which review is sought. In terms of Order 47 Rule 5, only in case of the non-availability of the judges or judge who passed the order in the main petition on account of death, superannuation or absence from the court for a period of six months, the review petition may be placed before some other bench but if the judges or at least one of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eview" the earlier order passed by him inasmuch as he is best suited to remove any mistake or error apparent on the fact of his own order. Again, he alone will be able to remember what was earlier argued before him or what was not argued. In our opinion, the above principle equally applicable in respect of orders of review passed by quasi-judicial authorities." 17. In Ratanlal Nahata & etc. Vs. Nandita Bose & etc. AIR 99 Calcutta 29, Hon'ble High Court of Calcutta examined the scope of Order 47 Rule 1 read with the Calcutta High Court Rules and came to the following conclusion: "In view of the above discussion we hold that-1. Order 47 Rule 5 of the Code of Civil Procedure although ipso facto no application in relation to the writ proceedings or proceedings on the Original or Appellate side of the Court, the principle laid down therein may be applied; 2. In a case where one of the learned judges attached to the Bench is available, he may issue the rule but the matter on merit must be heard by a Division Bench of two judges or such number of judges as the Hon'ble Chief Justice may constitute; 3. The Hon'ble Chief Justice has the unfettered jurisdiction in the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d out whether there is any error apparent on the face of the record." Accordingly, the Hon'ble Tribunal set aside the order of the GERC and remanded the matter in the following terms: "57. In the circumstances, we set aside the impugned orders dated 16/06/2016 and 01/07/2016 passed by the State Commission. We remand the matter to the State Commission. We direct the Members who passed the original tariff order to hear the review petitions afresh and pass appropriate order thereon as early as possible and at any rate within a period of four months from the date of receipt of this order." 19. Section 93 of the Act provides that existence of a vacancy or defect in constitution of the Commission shall not invalidate the proceedings before the Commission. Section 93 is extracted as under: "93. Vacancies, etc., not to invalidate proceedings.- No act or proceeding of the Appropriate Commission shall be questioned or shall be invalidated merely on the ground of existence of any vacancy or defect in the constitution of the Appropriate Commission." The Appellate Tribunal has dealt with the issue in its judgment dated 30.3.2017 in Torrent Power Ltd. Vs. GERC & Others and related app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under: (a) The Commission shall be guided by the principles given in the provisions of Section 114 of CPC and Order 47 thereunder while dealing with the review petitions. (b) If the members constituting the quorum which heard and passed the order in the main petition are available, those members only shall hear and issue order in the review petition. No other member shall be associated at the review stage. (c) It is only when a member or members who heard the main petition as part of the quorum is or are not available on account of death or superannuation, or absence for a period of 6 months, then only the Chairperson shall constitute a quorum to hear the review petition which shall consist of equal number of members including the members available who passed the order in the main petition. (d) If on account of a vacancy or vacancies in the Commission, it is not possible to constitute a quorum equal to the quorum which heard and passed the order in the main petition, the Chairperson shall constitute a quorum of lesser number of members (subject to minimum of two members) including the members available who passed the order in the main petition and such quorum shall deal wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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