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TMI Blog2021 (6) TMI 1146X X X X Extracts X X X X X X X X Extracts X X X X ..... of the considered opinion that as jurisdiction cannot be conferred by consent, notwithstanding that there was no objection by the petitioner when orders dated 20.07.2016 and 08.03.2017 were passed, notwithstanding that the said orders had attained finality, the question of jurisdiction can be entertained in this writ petition. Resultantly, the Court is of the considered opinion that interference, if any, with the impugned orders passed by the respondent no. 2 would not have the effect of nullifying the previous orders dated 20.07.2016 and 08.03.2017, as appointment or the Arbitral Tribunal, and rejection of petition for condonation of delay and resultant dismissal of the review petition were not the subject matter of challenge in the previous writ petition. The question is answered in the negative and against the respondent no. 1 by holding that the instant order is not found to nullify the order dated 20.07.2016 passed in W.P. (C) 4148/2016 and order dated 08.03.2017 passed in I.A. (C) No. 1784/2016 in any manner whatsoever. Whether the writ petition is barred under the principles of waiver, estoppel and acquiescence? - HELD THAT:- When orders dated 21.09.2018 and 06.10.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said orders are found to be vitiated by principle of coram non judice - the said two orders dated 21.09.2018 and 06.10.2018 along with the subsequent order dated 11.02.2020 passed by the respondent no. 2 Commission suffers from any jurisdictional error and warrants interference by setting aside and quashing the said two orders. Application disposed off. - Case No. CRP/71/2020 and I.A. (Civil)/2313/2020 - - - Dated:- 14-6-2021 - Hon'ble Judges Kalyan Rai Surana, J. For the Appellant : N. Kohli and D. Nath, Advocates For the Respondents : G.N. Sahewalla, Senior Advocate, Md. Aslam, D. Senapati, A. Chetia, S. Katakey, Advocates, S.N. Sarma, Senior Advocates, K. Kalita, S. Ghosh, G.K. Deka, C. Basumatary, Advocates and C.K.S. Barua, Govt. Advocate DECISION Kalyan Rai Surana, J . 1. Heard Mr. N. Kohli, learned counsel, assisted by Mr. D. Nath, learned counsel for the petitioner/opposite party no. 1. Also heard Mr. G.N. Sahewalla, learned senior counsel, assisted by Mr. D. Senapati, learned counsel for the respondent no. 1/applicant, Mr. S.N. Sarma, learned senior counsel, assisted by Mr. K. Kalita, learned counsel for respondent no. 2/opposite par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent no. 2 Commission did not commence. Therefore, the aggrieved respondent no. 1 filed a writ petition before this Court, being W.P. (C) 4148/2016, and this Court by order dated 20.07.2016, had disposed of the writ petition with a direction that the dispute petition would be disposed of within a period of 4 months from the date of receipt of certified copy of the order. By order dated 05.08.2016, the respondent no. 2 sought for submission of the views in the matter of appointment of arbitrator. The respondent no. 2 Commissioner had approached this Court by filing an interlocutory application, being I.A. (C) 1784/2016 in connection with W.P. (C) 4148/2016 and this Court by order dated 08.03.2017, passed the order to the following effect:- ... *** *** *** Mr. Patowari submits that under the provision of Section 86(1)(f) of Electricity Act, 2003, Commission has the power to adjudicate and/or to refer any dispute for arbitration and basically clarification is sought as to whether the Commission would be permitted to refer the dispute for arbitration. Mr. Sahewalla submits that he will have no objection if the Commission decides the matter or refers the same to arbit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Tribunal by formulating the points of reference. It is also submitted that issue of jurisdiction goes to the root of the matter and can be raised at any stage and that the jurisdiction cannot be conferred by consent or waiver. In support of his submissions, the learned counsel for the petitioner had placed reliance on the following cases, viz., (i) K.K. Agarwal Vs. Sanjiv Nandan Sahai Anr., order dated 07.12.2020 passed by Supreme Court of India in Cont. Pet. (C) No. 429/2020 in CA No. 14697 of 2015, (ii) Jagmittar Sain Bhagat Vs. Director of Health Services, Haryana Ors., (2013) 10 SCC 136, (iii) Sushil Kumar Mehta Vs. Gobind Ram Bohra, (1990) 1 SCC 193, (iv) United Commercial Bank Ltd. Vs. Workmen, AIR 1951 SC 230, (v) Chairman cum Managing Director, Coal India Vs. Ananta Saha Ors., (2011) 5 SCC 142, (vi) Whirlpool Corporation Vs. Registrar of Trade Marks, (1998) 8 SCC 1, (vii) State of Gujarat Vs. Utility Users' Welfare Assn., (2018) 6 SCC 21. 9. Per contra, opposing the writ petition and submitting in support of the interlocutory application, the learned senior counsel for the respondent no. 1 has submitted that the petitioner having consented to refer the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng case citations, viz., (i) National Institute of Mental Health and Neuro Sciences Vs. Dr. Kalyana Raman Ors., (1992) Suppl (2) SCC 481, (ii) State of Punjab Anr. Vs. Jalour Singh, (2008) 2 SCC 660, (iii) Manohar Vs. State of Maharashtra, (2012) 13 SCC 14, (iv) Namit Sharma Vs. Union of India, (2013) 1 SCC 745, (v) S.B.P. Co. Vs. Patel Engineering Ltd., (2005) 8 SCC 618, (vi) Gujarat Urja Vikas Nigam Ltd. Vs. Essar Power Ltd., (2008) 4 SCC 755. 10. The learned senior counsel for the respondent no. 2 has made his submissions in support of the orders passed by it, which are assailed in the revision. It is submitted that as a matter of abundant caution, the respondent no. 2 had approached this Court seeking permission to refer the matter to arbitration, which was permitted by this Court by the order dated 08.03.2017, passed in I.A. (C) 1784/2016. Accordingly, it is submitted that there was no jurisdictional error in the orders passed by the Commission. It is also submitted that as on the date of hearing, the Judicial Member has been appointed. Accordingly, it is prayed that the revision be dismissed. 11. The learned Govt. advocate has referred to the legal provisions and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s dated 21.09.2018 and 06.10.2018. Rather, the petitioner had participated in the proceeding before the Arbitral Tribunal constituted and appointed by the respondent no. 2 Commission. 15. The projection in the revision petition is that the decision of the Supreme Court of India in the case of Utility Users' Welfare Association (supra) was brought to the notice of the Commission. In the said case, it was held that it was mandatory to have a judicial member in the Electricity Regulatory Commission for taking up adjudication cases. It may be stated that the case of Utility Users' Welfare Association (supra) was decided on 12.04.2018, i.e. prior to the date when W.P. (C) 4148/2016 and I.A. (C) 1784/2016 were disposed of, but before orders dated 21.09.2018 and 06.10.2018 was passed. 16. The petitioner is projecting that in the case of Utility Users' Welfare Association (supra), the Supreme Court of India had held that exercise of power under Section 86(1)(f) of the Electricity Act, 2003 was adjudicatory in nature, which is the point of determination no. (d). There is nothing on record which shows that this Court had previously been called upon in W.P. (C) 4148/2016 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tra-state transmission, issuing licences to persons, promoting cogeneration and generation of electricity from renewable sources, levy fee, specify or enforce standards, fix trading margins. All these functions are regulatory in character rather than adjudicatory. The real adjudicatory function is only provided in sub-clause (f) whereupon the Commission has the option of adjudicating the disputes between the licencees and generating companies, or to refer such disputes to arbitration. There is also an advisory role to be performed by the State Commission as specified in sub-section (2). The issue, however, is not whether a Judge would be comfortable doing this function but whether these are types of functions which necessarily mandate a Judge to be a Chairperson. The answer to this would also be in the negative, supporting the view we have adopted on the plain reading of the section. 100. We have, in the context of Section 84(2) of the said Act, discussed the various functions of the State Commission which are specified under Section 86 of the said Act. The argument on behalf of the learned Attorney General and the counsel supporting him was that other than sub-clause (f) of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra). Thus, the issue raised in this writ petition is one of jurisdiction. 19. The learned senior counsel for the respondent no. 1 had relied on paragraphs 26 to 31 of the case of Gujarat Urja Vikas Nigam Ltd. (supra). Notwithstanding that the word and appearing between words generating companies and the words refer any dispute has been interpreted as 'or , the said case is not found to be an authority on the point that exercise of power under Section 86(1)(f) of the Electricity Act, 2003 was administrative function. The case of National Institute of Mental Health and Neuro Sciences (supra) was cited to show that the Supreme Court of India had held that selection committee does not discharge judicial or adjudicatory function, but the actions are administrative. The case of Jalour Singh (supra) was cited to demonstrate that Lok Adalats have no judicial or adjudicatory function and that the making of award is merely an administrative function. Similarly, the case of Manohar (supra) was also cited to bring home the point that State Information Commission performs adjudicatory functions and the case of Namit Sharma (supra) was cited to bring home the point that Information ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24. The point of determination no. (c) is taken up now. In this regard, having arrived at a conclusion in connection with point of determination no. (b) that without there being a Judicial Member in the respondent no. 2 Commission, could not have undertaken judicial function as envisaged under Section 86(1)(f) of the Electricity Act, 2003. Therefore, this is a case where principles of coram non judice would apply in respect of orders dated 21.09.2018, 06.10.2018. Moreover, without entering into the issue as to whether the respondent no. 2 Commission could have exercised power of review, which is conferred by the statute, but nonetheless, rejection of prayer for condonation of delay as well as consequential rejection of review petition and stay petition upon rejection of petition no. 2/2020, the Court is of the considered opinion that even while passing the order dated 11.02.2020, the respondent no. 2 was performing adjudicatory function, without there being a Judicial Member in the Bench, which could not have been done as per the ratio laid down in the case of Utility Users' Welfare Association (supra). 25. The learned senior counsel for the respondent no. 1 had submitted fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s inclined to reject the prayer(s) made in I.A. (C) 1784/2020. Accordingly, it is ordered as follows:- a. The orders dated 21.09.2018 and 06.10.2018 passed by the respondent no. 2 Commission in connection with Petition No. 4/2010, thereby referring the matter to arbitration by the honourable Sole Arbitrator are set aside and quashed. b. As the said orders dated 21.09.2018 and 06.10.2018 passed by the respondent no. 2 Commission are set aside and quashed, the prayer calling for interference with the order dated 11.02.2020, thereby rejecting petition no. 2/2020, 3/2020 and 4/2020 are held to have been rendered infructuous. However, without expressing any opinion as to whether the power of review is available to the respondent no. 2 Commission, which is left to be decided in an appropriate case. c. The parties are left to bear their own cost. d. Taking note of the inordinate delay in adjudication of petition no. 4 of 2010, it is made clear that this order shall not stand as a bar for the respondent no. 1 to renew its prayer before the respondent no. 2 Commission for referring the matter to arbitration. 30. Before parting with the records, it is hoped that the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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