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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 ..... airperson retires before the review petition is filed or during the course of the proceedings of the review petition. 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 decree or order is made. 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 - If the members constituting the quorum which heard and passed the order in the main petition are available, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eview petition has arisen from an order or a decree of a division bench, such review shall be heard by a bench comprising of same judges or more who had decided the earlier proceedings. The aforementioned statutory mandate has been abided by the Hon'ble Supreme Court in Reliance Industries Vs. Pravinbhai Jasbhai Patel {(1997) 7 SCC 300}. (b) As per the doctrine of stare decisis, a bench of a lesser quorum cannot disagree or dissent from the view taken by a bench of a larger quorum {Central Board of Dawoodi Bohra Community Vs. State of Maharashtra. (2005) 2 SCC 673}. The said approach was adopted by the Ranchi Bench of Patna High Court in the matter of Bihari Lal Monka and etc. Vs. Government of India others (2000) SCC Online Pat 50. In that case, the writ applications were heard and disposed of by the Division Bench whereas the review applications preferred by the Petitioners were listed before the Single judge of the same Division Bench. Relying on the judgment of the Hon'ble Supreme Court in Reliance Industries (supra), the Learned Single Judge refused to adjudicate upon the review applications on the ground that since the earlier applications were heard and disposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions assigned to it under this Act. (2) The Central Electricity Regulatory Commission, established under Section 3 of the Electricity Regulatory Commissions Act, 1998 and functioning as such immediately before the appointed date, shall be deemed to be the Central Commission for the purposes of this Act and the Chairperson, Members, Secretary, and other officers and employees thereof shall be deemed to have been appointed under this Act and they shall continue to hold office on the same terms and conditions on which they were appointed under the Electricity Regulatory Commissions Act, 1998: Provided xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (3) The Central Commission shall be a body corporate by the name aforesaid, having perpetual succession and a common seal with power to acquire, hold and dispose of property, both movable and immovable, and to contract and shall, by the said name, sue or be sued. (5) The Central Commission shall consist of the following Members, namely:- (a) a Chairperson and three other Members; (b) the Chairperson of the Authority who shall be the Member, ex-officio. Thus the Central Commission shall consist of a Chairperson a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tracted as under: 2. Definition 2.(1) in these Regulations, unless the context otherwise requires: (a) to (d)............................................................... (e) 'Proceedings' means and include proceedings of all nature that the Commission may hold in the discharge of its functions under the Act; (f) to (g).......................................................................................... Proceedings before the Commission 20. The Commission may from time to time hold hearings, discussions, deliberations, inquiries, investigations and consultations as it may consider appropriate in the discharge of its functions under the Act. Quorum 21. The Quorum for the proceedings before the Commission shall be two. Attendance by Members and Voting 22. No Member including Ex-Officio Member shall exercise his vote on a decision unless he is present during all substantial hearings of the Commission on such matter. Hearing of the matter 53. The Commission may determine the stages, manner, the place, the date and the time of the hearing of the matter as it considers appropriate. Orders of the Commission 62. The Commission s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions shall be heard by lesser number of members than those who heard the main petition or what should be the quorum if any of the Members including Chairperson retires before the review petition is filed or during the course of the proceedings of the review petition. 7. Section 94 of the Act says that the Commission shall have the same power as are vested in a civil court under the Code of Civil Procedure, 1908 (CPC) for the purposes of any inquiry or proceedings under the Act. Section 94 of the Act reads as under: 94. Powers of Appropriate Commission:- (1) The Appropriate Commission shall, for the purposes of any inquiry or proceedings under this Act, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) in respect of the following matters, namely:- (a) summoning and enforcing the attendance of any person and examining him on oath; (b) discovery and production of any document or other material object producible as evidence; (c) receiving evidence on affidavits; (d) requisitioning of any public record; (e) issuing commission for the examination of witnesses; (f) reviewing its decisions, directions and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch appeal is common to the applicant and the appellant, or when being respondent, he can present to the Appellate Court the case on which he applies for the review. 2. To whom applications for review may be made.- [Rep. by the Code of Civil Procedure(Amendment) Act, 1956 (66 of 1956), se. 14 (w.e.f. 1-1-1957).] 3. Form of applications for review.- The provisions as to the form of preferring appeals shall apply mutatis mutandis, to applications for review. 4. Application where rejected.- (1) Where it appears to the Court that there is not sufficient ground for a review, it shall reject the application. (2) Application where granted.- Where the Court is of opinion that the application for review should be granted it shall grant the same: Provided that- (a) no such application shall be granted without previous notice to the opposite party, to enable him to appear and be heard in support of the decree or order, a review of which is applied for; and (b) no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment are extracted below: 45. Though both courts and tribunals exercise judicial power and discharge similar functions, there are certain well-recognized differences between courts and tribunals. They are: (i) Courts are established by the State and are entrusted with the State's inherent judicial power for administration of justice in general. Tribunals are established under a statute to adjudicate upon disputes arising under the said statute, or disputes of a specified nature. Therefore, all courts are tribunals. But all tribunals are not courts. (ii) Courts are exclusively manned by Judges. Tribunals can have a Judge as the sole member, or can have a combination of a judicial member and a technical member who is an expert in the field to which the tribunal relates. Some highly specialized fact-finding tribunals may have only technical members, but they are rare and are exceptions. (iii) While courts are governed by detailed statutory procedural rules, in particular the Code of Civil Procedure and the Evidence Act, requiring an elaborate procedure in decision making, tribunals generally regulate their own procedure applying the provisions of the Code of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce or other cause for a period of six months next after the decree or order is made. In the case of Malthesh Gudda Pooja vs. State of Karnataka [(2011) 15 SCC 330], the Hon'ble Supreme Court has interpreted the terms absence or other causes for a period of six months in Order 47 Rule 5 in the following terms: 16. Order 47 Rule 5 of the Code provides that the review petition shall be heard only by the Judges who passed the order if the said Judges continues or continue attached to the Court (at the time when the application for review is made) and are not precluded by absence or other cause from considering the application for a period of six months. The words continue attached to the Court mean available to perform normal duties and has not been transferred or away on deputation. The words absence or other cause for a period of six months in Order 47 Rule 5 of the Code and the words by reason of death, retirement or absence in Chapter 3 Rule 5 of the High Court Rules, in essence refer to the same causes, due to which the review application cannot be heard by the same Bench which passed the original order. As Chapter 3 Rule 5 of the High Court Rules does not specify ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be placed before some other bench but if the judges or at least one of them continues to be members or member of the court, all efforts should be made to place the review petition before them. 14. In some of the cases, the orders were passed with ex-Chairperson as part of the quorum. After the superannuation of ex-Chairperson, the review petitions against these orders were listed for hearing before a quorum consisting of the remaining members. Shri Sanjay Sen, learned senior counsel has pleaded that as per the principle of stare decisis, a bench of lesser quorum cannot disagree or dissent from the view taken by a larger quorum and in the light of the settled legal position, the review petition should be heard by a quorum of equal number of Members who had passed the orders whose review have been sought. 15. We need to discuss the legal position of quorum for hearing the review petitions as interpreted by different courts and Tribunals. The Privy Council considered and decided the issue in Maharajah Moheshur Sing Vs. Bengal Government (1857-60) 7 MIA 283 as under: 16. Let us now address our attention to the Regulations which have passed relative to the question of granti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitute; 3. The Hon'ble Chief Justice has the unfettered jurisdiction in the matter of constitution of Benches in all matters including a review jurisdiction; 4. As a matter of propriety, a judge who is still attached to the court should be made a party to hear the review application unless exceptional situation arises which in the opinion of the Hon'ble Chief Justice would be subversive to imparting justice to the litigation keeping in view the principle that justice not only be done but manifestly seem to be done. 18. The Appellate Tribunal for Electricity in in its judgment dated 30.3.2017 in Torrent Power Ltd. Vs. GERC Others and related appeals rejected the plea that if the original tariff petition was heard by two members, the review petition can be heard by three members including the Chairperson. Relevant para of the judgment is extracted as under: 55. It is submitted that there is no provision under the said Act which provides for Benches of the State Commission. The State Commission operates as one body. We have in light of the Delhi High Court's judgment in Kwality Restaurant already rejected this submission. It is urged that conjoint reading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the issue in its judgment dated 30.3.2017 in Torrent Power Ltd. Vs. GERC Others and related appeals as under: 52.....The word 'vacancy' used in Section 93 and Regulation 89 also relates to the constitution of the Commission. Neither Section 93 nor Regulation 89 refers to quorum. Undoubtedly, if a Member retires, or dies or on some such ground is unavailable, some other Member or Members will have to decide the review petition as the doctrine of necessity will then spring into action. But, not otherwise. The submission that Section 93 and regulation 89 will save the impugned order must, therefore, fail. 20. From the judgment dated 30.3.2017 in Torrent Power Ltd. Vs. GERC Others and related appeals, it emerges that while the existing members, who passed the original order, if available shall only hear and dispose of the review petition arising out of that order and no new member can be associated, in case of the non-availability of any member who heard and passed the order under review, some other member will decide the review as per the doctrine of necessity. 21. On perusal of the judicial decisions on review as discussed above, the following principles e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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