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Saturday, October 5, 2013

Electricity Act old and new sec.22,27, 86 and 111 of new Act= Himachal Pradesh State Electricity Regulatory Commission and another ...Appellants Versus Himachal Pradesh State Electricity Board ...Respondent published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40845


Electricity Act old and new sec.22,27, 86 and 111 of new Act
JURISDICTION OF HIGH COURT TO HEAR APPEAL FILED PRIOR TO  ARRIVAL OF NEW ACT 2003:-
On the basis of the aforesaid analysis it  can  safely  be  concluded  that the conclusion of the High Court that  it  had  jurisdiction  to  hear the appeal is absolutely flawless.

JURISDICTION AND POWERS OF STATE COMMISSION :-
We find that the State Commission under Section  22(1)(d)  was
conferred power to address to various facets and we see no reason  that  the
terms, namely, “efficiency, economy  in  the  activity  of  the  electricity
industry” should be narrowly construed.  
That apart, it would not be  seemly
to say that under Section 22(1) of the 1998 Act the Commission had only  the
power to fix the  tariff  and  no  other  power.   
Had  that  been  so,  the
legislature would not have employed such wide language in Section  22(1)(d).
 At this stage, we may also note  that  the  powers  enumerated  under  sub-
section  (2)  of  Section  22  are  more  enumerative  in  nature  and   the
jurisdiction conferred comparatively covers more  fields.  
In  the  present
case, if  we  read  the  directions  issued  by  the  Commission  in  proper
perspective, the same really do not travel beyond the power conferred  under
Section 22(1)(d) of the 1998 Act.  

IMPOSING PENALTY IS CORRECT :-
In  this  factual
      backdrop, it was not correct on the part of the Commission to  impose
      penalty on the Board.  
However, we may hasten to add that  under  the
      2003 Act constitution of the State Commission is governed by  Section
      82. 
Section 86 deals with the function of the State Commission.   On
      a reading of Section 86 we find that at present  no  notification  is
      required to be issued to confer any power on  the  State  Commission.
      It is conferred and controlled by the statute.  
If anything  else  is
      required to be done in praesenti, the Commission  is  at  liberty  to
      proceed under the provisions of the 2003 Act.  
Be it  clarified,  our
      grant of liberty  may  not  be  understood  to  have  said  that  the
      Commission can take any action arising out of its earlier order dated
      29.10.2001 or any subsequent orders passed thereon. 
We have said so,
      for the Commission and a statutory Board can really work  to  achieve
      the objects and purposes of the 2003 Act.

  35. The appeals stand disposed of in the above terms leaving the  parties
      to bear their respective costs.



IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL  APPEAL  NO. 6128 OF 2009


Himachal Pradesh State Electricity Regulatory
Commission and another                       ...Appellants

                                   Versus

Himachal Pradesh State Electricity
Board                                          ...Respondent


                                    WITH
                        CIVIL APPEAL NO. 6129 of 2009

                                    WITH
                        CIVIL APPEAL NO. 6130 of 2009

                                    WITH
                       CIVIL APPEAL NOS. 6131 of 2009

                                    WITH
                        CIVIL APPEAL NO. 6132 of 2009

                                    WITH
                        CIVIL APPEAL NO. 6133 of 2009



                               J U D G M E N T


Dipak Misra, J.


      These appeals, by special  leave,  are  directed  against  the  common
Judgment and order dated 21.11.2007 passed by the  High  Court  of  Himachal
Pradesh in FAOs (Ord.) Nos. 489, 490, 491, 492, 493 & 494  of  2002  whereby
the learned Single Judge overturned the decision dated  17.08.2002  rendered
by the Himachal Pradesh State Electricity Regulatory Commission (for  short,
“the  Commission”)  constituted  under  the  provisions  of  Chapter  IV  of
Electricity Regulatory Commission Act,  1998  (hereinafter  referred  to  as
“the 1998 Act”).

     2. The controversy that has emerged for consideration being common  to
        all the appeals, we shall adumbrate the facts from Civil Appeal No.
        6128 of 2009 for the sake of convenience.

     3. The facts requisite to  be  stated  are  that
 the  Commission  was
        established for rationalization of electricity tariff,  transparent
        policies  regarding  subsidies,   promotions   of   efficient   and
        environmentally benign policies and for matters connected therewith
        or incidental thereto. 
 In exercise of the power  conferred  on  it
        under Sections 22 and 29 of the 1998 Act the Commission vide  order
        dated 29.10.2001 determined the tariff applicable  for  electricity
        in the State of Himachal Pradesh.  
While determining the tariff  it
        also issued certain directions which are as follows:-
     a) “Furnishing of information and also periodical reports with respect
        to the value of the assets and capital projects of the Board.

     b) Replacement of all dead and defective meters by  electronic  meters
        from 31st March, 2002 onwards and reporting the status, as on  31st
        December, 2001 by 31st March, 2002.

     c)  To  develop  and  implement  a  comprehensive  public  interaction
        programme through Consultative Committees, preparation, publication
        and advertisement of material helpful to various consumer  interest
        groups and general public on various  activities  of  the  utility,
        dispute settlement mechanism, accidents, rights and obligations  of
        the  consumers  etc.   Accordingly,  the  Board  was  directed   on
        September 22,  2001,  to  submit  its  plan  for  approval  of  the
        commission and implement the same by 31st March, 2002.

     d) Submission of plans, short term and long term, by 31st March, 2002,
        for  rationalization  of  existing  manpower  for  improvements  in
        efficiency through  scientific  engineering  resources  management,
        improving and updating the organization strategies and systems  and
        skills of human resources for increased productivity.  The Board in
        its affidavit of 3rd October, 2001 has agreed to comply and  submit
        the above study by the above-mentioned date.

     e) Submission of a plan by 31st March, 2002, for reducing  loss,  both
        technical and  non-technical,  together  with  relevant  load  flow
        studies and  details  of  investment  requirement  to  achieve  the
        planned reductions.  The Commission also observed  in  its  interim
        order of 20th September,  2001  passed  in  the  course  of  public
        hearing that investments must aim at reducing the T & D losses  and
        better quality of  supply  and  service  to  the  consumers  as  it
        happened in the case of Palampur area which has mixed domestic  and
        commercial loading.  The strategy can be  considered  for  adoption
        elsewhere also to produce similar results.  The Board has confirmed
        and undertaken to complete this study by 31st March, 2002

     f) To do a comparison of the capital costs of Malana  Plant  with  the
        capital costs of HPSEB Plants and submit a report on this  by  31st
        March, 2002.”

     4. Be it noted, the commission issued the directions as a part of  the
        tariff order and the said directions were contained  in  paragraphs
        7.1,  7.4,  7.5,  7.6,  7.8,  7.9  and  7.13.   The  Commission  in
        paragraphs 7.31 and 7.32 had further stated as follows:-

      “7.31       The Commission would monitor  the  progress  in  complying
      with these directions.  The Commission accordingly directs  the  Board
      to furnish the information on milestones required in column 3  of  the
      Annex (7.1) by December 31, 2001.  Subsequent reports should  be  sent
      every quarter, providing the information required in columns 4,  5,  6
      and 7.  The first report should be submitted by January 15, 2002.

      7.32        In the directions where the Board is to comply by the next
      tariff petition and the same is not filed within next six months,  the
      directions should be complied within the next six months.”



     5.  Thereafter,  the  Commission  while  discharging  its   regulatory
        functions proceeded to review the directions issued by it and found
        that part of the tariff had not been complied with.  
In view of the
        complaints, the Commission issued notice on 23.7.2002 under Section
        45 of the 1998 Act.
Pursuant to the  aforesaid  notice  the  Board
        filed its reply raising the question of jurisdiction and competence
        of  the  Commission  to  issue  the  aforesaid   directions.    
The
        Commission while dealing with the same framed number of issues  and
        thereafter came to hold that the Board had not fully complied  with
        the directions of the Commission, and accordingly  imposed  penalty
        of Rs.5000/- on the Board with a further stipulation that the  same
        shall be deposited within a  period  of  30  days.
The  Board  was
        directed to submit further steps taken by it before the Commission.



     6. Being aggrieved by the aforesaid  order,  the  Board  preferred  an
        appeal under Section 27 of the 1998 Act forming the subject  matter
        of FAO No. 489 of 2002.

     7. During the pendency of the appeal, the 1998 Act  was  repealed  and
        the Electricity Act, 2003 (for short, “the  2003  Act”)  came  into
        force.
The 2003  Act  was  brought  in  to  consolidate  the  laws
        relating to generation, transmission, distribution, trading and use
        of electricity and  generally  for  taking  measures  conducive  to
        development of electricity industry, promoting competition therein,
        protecting interest of consumers and supply of electricity  to  all
        areas, rationalisation of electricity tariff, ensuring  transparent
        policies  regarding   subsidies,   promotion   of   efficient   and
        environmentally   benign   policies,   constitution   of    Central
        Electricity Authority, Regulatory Commissions and establishment  of
        Appellate  Tribunal  and  for  matters   connected   therewith   or
        incidental thereto.

     8. At this juncture, it is apt to state that the batch of appeals  was
        taken up for hearing by the learned Single Judge,  learned  counsel
        for the respondent-Commission raised a preliminary objection  about
        the maintainability of the appeals.
It was contended that as under
        Section 110 of the 2003 Act the appellate tribunal has already been
        established and an appeal would lie to the  appellate  tribunal  as
        contemplated under Section 111 of the said Act, the High Court  had
        lost its jurisdiction to hear  the  appeals.
The  learned  Single
        Judge took note of the fact that the appeals were  preferred  under
        Section 27 of the  1998  Act  and  at  that  stage  an  appeal  was
        maintainable before the High Court.
The High Court referred to the
        repealed Act and the language employed under Section 185 of the Act
        of 2003 and  Section  6  of  the  General  Clauses  Act,  1897  and
        analyzing the gamut of the provisions came to hold that the  appeal
        preferred under the 1998 Act could be heard by the High Court  even
        after coming into force of the 2003 Act.

     9. After dwelling upon the maintainability of the appeal  the  learned
        Single Judge delved into the merits  of  the  appeal  and  for  the
        aforesaid purpose, he studiedly scrutinized the  language  employed
        in Section 22 of the 1999 Act  and  came  to  hold  that
when  the
        Commission was approached by the Board to determine the tariff  for
        electricity, the  Commission  was  called  upon  to  discharge  the
        functions mentioned in sub-Section 1 (a) of Section 22 of the  1998
        Act and under the said provision it had the jurisdiction  to  issue
        further directions.
Thereafter, the learned Single Judge proceeded
        with regard to the monitoring facet by the Commission,  appreciated
        the directions and, eventually, opined thus:-

      “Commission’s observation that  the  directions  were  issued  in  the
      larger interest of the Board and the consumers  is  also  out  of  the
      context.  As already noticed, the Commission  was  approached  by  the
      Board to fix the tariff of electricity. Once the tariff had been fixed
      the job of the Commission was over.  It became  functus  officio  once
      the function of determination  of  tariff  had  been  performed.   The
      interests of the Board and the consumers were required to be borne  in
      mind and protected while fixing the tariff.  The Commission could  not
      have arrogated to itself and superintendence and control of the  Board
      on the pretension of watching and protecting the larger  interests  of
      the Board and the consumers.”

      As stated earlier, the aforesaid judgment and order  are  the  subject
matter of assail before us in these appeals.

    10.  Mr.  Jaideep  Gupta,  learned  senior  counsel,  questioning   the
        sustainability of the judgment of the High  Court  has  raised  the
        following submissions:-

(a)   The High Court has absolutely flawed by coming  to  hold  that  appeal
      was maintainable before  it  despite  a  separate  forum  having  been
      created and provision for appeal being engrafted under Section 111  of
      the 2003 Act.  It is urged by him that  the  High  Court  has  totally
      misguided itself in  interpreting  the  Repeal  and  Saving  provision
      contained in Section 185 of the 2003 Act.

(b)   The High Court has erred in holding that despite  the  repeal  of  the
      1998 Act and coming into force of the 2003 Act the right to prefer  an
      appeal under the old Act would still survive.  It is urged by him that
      from the schematic content of the 2003 Act  it  is  graphically  clear
      that a contrary intention of the legislature is clear  from  the  2003
      Act that the appeal has to lie to the appellate tribunal and the  High
      Court has been divested of its appellate jurisdiction to deal with the
      pending appeals.

(c)   The view expressed by the High Court that  the  Board  had  approached
      the Commission to fix the electricity tariff and once the said  tariff
      had been fixed by the Commission it  became  functus  officio  and  it
      could not have arrogated to itself the power  of  superintendence  and
      control of the Board on the pretext of  monitoring  of  larger  public
      interest, is sensitively susceptible.   Learned counsel  would  submit
      that the Commission had been conferred power under Section 22  (1)  of
      the 1998 Act by virtue of issuance of notification  by  the  State  of
      Himachal  Pradesh  but  the  High  Court  failed  to  appreciate   and
      scrutinize the effect of conferment of power under the said  provision
      as a consequence of which an indefensible order came to be passed.

    11. Mr. Anand K. Ganesan, learned counsel appearing for the respondent-
        Board, resisting the aforesaid submissions contended as follows:-

(i)   The conclusion arrived at by the High Court that  the  appeal  can  be
      heard despite repeal of the 1998 Act and introduction of the 2003  Act
      on the basis of Section 6 of the General  Clauses  Act  1897  and  the
      provision contained in Section 185(5) of the 2003 Act cannot be  found
      fault with, for there is no express provision to take away the  vested
      right of appeal and no contrary intention can be gathered from any  of
      the provisions of the new enactment.

(ii)  The right of appeal before the High Court was a vested right  and  the
      same has not been taken away by  the  2003  Act  and,  therefore,  the
      opinion expressed by the High Court being impregnable deserves  to  be
      concurred with by this Court.  Right of forum as regards an appeal  is
      also a vested right unless abolished or altered by subsequent law  and
      in the case at hand the 2003 Act does not extinguish the  said  vested
      right and hence, the judgment and order passed by the High  Court  are
      impeccable.

(iii) The Commission under the 1998 Act could  not  have  issued  directions
      inasmuch as the notification issued by the State  had  only  conferred
      powers under Section 22 (1) of the 1998 Act and not  under  any  other
      provisions, and hence, the directions issued travel beyond  the  power
      conferred which have been appositely nullified.   It is further argued
      that though the finding of the High  Court  that  the  Commission  had
      become functus officio may not be a  correct  expression  in  law  but
      directions issued being without jurisdiction, the Commission could not
      have  been  proceeded  and  imposed  penalty.   Alternatively,  it  is
      submitted that even if the issue  of  jurisdiction  is  determined  in
      favour of the Commission.  The directions issued  by  it  having  been
      substantially complied with by  the  respondent  and  there  being  no
      willful and deliberate non-compliance, on the facts and  circumstances
      imposition of penalty was not justified.

    12. First, we shall proceed to deal with the jurisdiction of  the  High
        Court to hear the appeal after coming  into  force  the  2003  Act.
       
The Board, as is manifest, was grieved by order  imposing  penalty.
        The relevant part of the order of the Commission reads as follows:-

      “The instant matter is one of the first incidents of the contravention
      of the Commission orders/ directions attributable to  the  conduct  of
      Respondents / objectors.  The commission has determined the quantum of
      fine to be imposed after considering the nature  and  extent  of  non-
      compliance and other relevant factor as per  Regulation  51  (iii)  of
      HPERC’s Conduct  of  Business  Regulations,  2001  under  the  overall
      provision of Section 45 of the ERC Act, 1998.  Penalty of Rs.  5,000/-
      only is hereby imposed upon Respondent No. 7-HPSEB.   The  penalty  be
      deposited with the Secretary of the Commission within a period  of  30
      days from today.  Additional penalty for continuing failure @ Rs. 300/-
       only per day is further imposed on HPSEB  and  shall  be  ipso  facto
      recoverable immediately after January  15,  2002  until  the  date  of
      compliance to the Commission’s satisfaction to be so notified  by  the
      Commission.  The Board shall submit the Status / Action taken  reports
      on the fifteenth day of every month until compliance is made.”

    13. By the time the order was passed by the Commission it  was  subject
        to challenge in appeal before the High Court under  Section  27  of
        the 1998 Act, which reads as follows:-

      “27. Appeal to High Court in certain cases. –
(1) Any person aggrieved
      by any decision or order of the State Commission may file an appeal to
      the High Court.

     
(2)   Except as aforesaid, no appeal or  revision  shall  lie  to  any
      court from any decision or order of the State Commission.


     
(3)   Every appeal under this section shall be preferred within  sixty
      days from the date of communication of the decision or  order  of  the
      State Commission to the person  aggrieved  by  the  said  decision  or
      order.

      Provided that the High Court may entertain an appeal after the  expiry
      of the said period of sixty days if it is satisfied that the aggrieved
      person had sufficient cause for not preferring the appeal  within  the
      said period of sixty days.”

    14. It is not in dispute that when the  appeals  were  preferred  under
        Section 27 of the 1998 Act pending before the High  Court  awaiting
        adjudication the 2003 Act was enacted.  Chapter XI of the 2003  Act
        deals with “Appellate Tribunal for Electricity”.  Section 110 deals
        with establishment of appellate tribunal.  The said provision reads
        as under:-

      “110. Establishment of Appellate Tribunal. –
The  Central  Government
      shall, by notification, establish an Appellate Tribunal to be known as
      the Appellate Tribunal for Electricity to  hear  appeals  against  the
      orders of the  adjudicating  officer  or  the  Appropriate  Commission
      [under this Act or any other law for the time being in force].”



    15. Section 111 provides for an appeal to the appellate tribunal.  Sub-
        Sections (1) and (2) being relevant for  the  present  purpose  are
        reproduced below:-

      “111. Appeal to Appellate Tribunal -
(1) Any person  aggrieved  by  an
      order made by an adjudicating officer under  this  Act  (except  under
      section 127) or an order made by the Appropriate Commission under this
      Act may prefer an appeal to the Appellate

      Tribunal for Electricity: Provided that any person  appealing  against
      the order of the adjudicating officer levying and penalty shall, while
      filling the appeal , deposit the  amount  of  such  penalty:  Provided
      further that where in any particular case, the Appellate  Tribunal  is
      of the opinion that the deposit of  such  penalty  would  cause  undue
      hardship to such person, it may dispense with such deposit subject  to
      such conditions as it may deem fit to impose so as  to  safeguard  the
      realisation of penalty.

      (2) Every appeal under sub-section (1) shall be filed within a  period
      of forty-five days from the date on which a copy of the order made  by
      the adjudicating officer or the Appropriate Commission is received  by
      the aggrieved person and it shall be in such form,  verified  in  such
      manner and be accompanied by such fee as may be prescribed:

      Provided that the Appellate Tribunal may entertain an appeal after the
      expiry of the said period of forty-five days if it is  satisfied  that
      there was sufficient cause for not filing it within that period.”

    16. From the  aforesaid  provision  it  is  clear  as  crystal  that  a
        different  forum  of  appeal  has  been  created  under   the   new
        legislation with certain conditions.

    17. At this stage, we may usefully refer to  Section  185  which  deals
        with Repeal and Saving.  It reads as follows:-

      “185. Repeal and saving. -
(1) Save as otherwise provided in this  Act,
      the Indian Electricity Act, 1910 (9 of 1910, the Electricity  (Supply)
      Act, 1948 (54 of 1948) and the Electricity Regulatory Commissions Act,
      1998 (14 of 1998) are hereby repealed.

      (2) Notwithstanding such repeal, -

      (a) anything done or any action taken or purported to have  been  done
      or taken including any rule, notification, inspection, order or notice
      made or issued or any appointment, confirmation or declaration made or
      any licence, permission, authorisation or  exemption  granted  or  any
      document or instrument executed  or  any  direction  given  under  the
      repealed laws shall, in so far as it  is  not  inconsistent  with  the
      provisions of this Act, be deemed to have been done or taken under the
      corresponding provisions of this Act.

      (b) the provisions contained in  sections  12  to  18  of  the  Indian
      Electricity Act, 1910 (9 of 1910) and rules made thereunder shall have
      effect until the rules under section 67 to 69 of this Act are made;

      (c) The Indian Electricity Rules, 1956 made under section  37  of  the
      Indian Electricity Act, 1910 (9 of  1910)  as  it  stood  before  such
      repeal shall continue to  be  in  force  till  the  regulations  under
      section 53 of this Act are made;

      (d) all rules  made  under  sub-section  (1)  of  section  69  of  the
      Electricity (Supply) Act, 1948 (54 of 1948)  shall  continue  to  have
      effect until such rules are rescinded or modified, as the case may be;

      (e) all directives issued, before the commencement of this Act,  by  a
      State Government under the enactments specified in the Schedule  shall
      continue to apply for the period for which such directions were issued
      by the State Government.

      (3) The provisions of the enactments specified in  the  Schedule,  not
      inconsistent with the provisions of  this  Act,  shall  apply  to  the
      States in which such enactments are applicable.

      (4) The Central Government may, as and when considered  necessary,  by
      notification, amend the Schedule.

      (5) Save as otherwise provided in  sub-section  (2),  the  mention  of
      particular matters in that section, shall not be held to prejudice  or
      affect the general application of section 6  of  the  General  Clauses
      Act, 1897  (10 of 1897),  with regard to the effect of repeals.”

    18. It is submitted by Mr. Jaideep Gupta, learned senior  Counsel  that
        when the 1998 Act has been repealed and a new legislation has  come
        into force the intention of the legislature is clear to the  effect
        that the appeals are to be heard by the newly constituted appellate
        tribunal.  Learned senior counsel would also contend  that  if  the
        interpretation placed by the High  Court  is  accepted  then  there
        would be two appellate authorities after the enactment of the  2003
        Act which would lead to an anomalous situation.   In  this  context
        Mr. Gupta has commended us to the authorities in State of Punjab v.
        Mohar Singh[1], Brihan Maharashtra Sugarsyndicate Ltd. v.  Janardan
        Ramchandra Kulkarni and Others[2], Manphul Singh Sharma  v.  Ahmedi
        Begum  (Smt)   (since   deceased)   through   her   alleged   legal
        representative/successors (A) M.A. Khan (B)  Delhi  Wakf  Board[3],
        Commissioner of Income  Tax,  Bangalore  v.  R.  Sharadamma[4]  and
        Commissioner of Income Tax, Orissa v. Dhadi Sahu [5].

    19. In Mohar Singh (supra), the Court has ruled thus:-
      “Whenever there is a repeal of an  enactment,  the  consequences  laid
      down in section 6 of the General Clauses Act will  follow  unless,  as
      the section itself says, a different intention appears. In the case of
      a simple repeal there  is  scarcely  any  room  for  expression  of  a
      contrary opinion. But when the repeal is followed by fresh legislation
      on the  same  subject  we  would  undoubtedly  have  to  look  to  the
      provisions of the new Act, but only for  the  purpose  of  determining
      whether they indicate a different intention. The line of enquiry would
      be, not whether the new Act  expressly  keeps  alive  old  rights  and
      liabilities but whether it manifests an intention to destroy them.  We
      cannot therefore subscribe to the broad proposition that section 6  of
      the General Clauses Act is ruled  out  when  there  is  repeal  of  an
      enactment  followed  by  a  fresh  legislation.  Section  6  would  be
      applicable in such cases also unless the new legislation manifests  an
      intention incompatible with or  contrary  to  the  provisions  of  the
      section. Such incompatibility would have  to  be  ascertained  from  a
      consideration of all the relevant provisions of the new  law  and  the
      mere absence of a saving clause is by itself not material.  It  is  in
      the light of these principles that we now proceed to examine the facts
      of the present case.”
                                                       [Underlining is ours]

    20. In Messrs. Hoosein Kasam Dada (India) Ltd. v. The State  of  Madhya
        Pradesh and others[6], this Court was  considering  the  effect  of
        amendment of provisions of Central Provinces and  Berar  Sales  Tax
        Act.  Section 22(2) prior to the amendment of  the  Act  stipulated
        that no appeal against an  order  of  assessment  with  or  without
        penalty could be entertained by the appellate authority  unless  it
        was satisfied that such amount of tax or penalty, or both,  as  the
        appellant had admitted due to  him  had  been  paid.   The  amended
        provision laid a postulate that appeal had to be  admitted  subject
        to the satisfaction of proof of payment of tax in appeal  to  which
        the appeal had been preferred.  It was contended that the appellant
        was covered under the unamended  provision  and  that  he  had  not
        admitted any tax and hence, he was not liable to  deposit  any  sum
        along with the appeal.  It was urged before  this  Court  that  the
        restriction imposed by the amending Act could not affect his  right
        to appeal as the same was a vested right prior to the amendment  at
        the time of commencement of the proceeding under the Act.   Dealing
        with the said contention, the Court opined that a right  of  appeal
        is not merely a matter of procedure but  a  matter  of  substantive
        right.  It was also held that the right of appeal from the decision
        of an inferior tribunal to a superior tribunal becomes vested in  a
        party when proceedings are first initiated and before a decision is
        given by the inferior Court.  It has  been  further  observed  that
        such a  vested  right  cannot  be  taken  away  except  by  express
        enactment or necessary intendment and  an  intention  to  interfere
        with or to impair or imperil such a vested right cannot be presumed
        unless such intention is clearly manifested  by  express  words  or
        necessary implication.  Eventually, the Court ruled that as the old
        law continues to exist for  the  purpose  of  supporting  the  pre-
        existing right of appeal and that old law must govern the  exercise
        and enforcement of that right of appeal and there is no question of
        applying the amended provision  preventing  the  exercise  of  that
        right.

    21. In this context, we may refer with profit to the Constitution Bench
        judgment  in  Garikapati  Veeraya  v.  N.  Subbiah   Choudhry   and
        others[7].  In the said decision, the Constitution  Bench  referred
        to the leading authority of the privy  council  in  Colonial  Sugar
        Refining  Company  Ltd.  v.  Irving[8].   The  Constitution   Bench
        observed that the doctrine laid down in the decision of  the  privy
        council in Colonial Sugar Refining Company Ltd.  (supra)  has  been
        followed and applied by the Courts in India.  The passage that  was
        quoted from the Privy Council’s judgment is as follows:-
      “As regards the general principles applicable to the case there was no
      controversy. On the one hand, it was not disputed that if  the  matter
      in question be a matter  of  procedure  only,  the  petition  is  well
      founded. On the other hand, if it be more than a matter of  procedure,
      if it touches a right in existence at the passing of the Act,  it  was
      conceded that, in accordance with a long line of authorities extending
      from the time of Lord Coke to the present day, the appellants would be
      entitled to succeed. The Judiciary Act is not retrospective by express
      enactment or by necessary intendment. And therefore the only  question
      is, was the appeal to His Majesty in Council a  right  vested  in  the
      appellants at the date of the passing of the Act, or  was  it  a  mere
      matter of procedure? It seems to their  Lordships  that  the  question
      does not admit of doubt. To deprive a suitor in a pending action of an
      appeal to a superior tribunal which belonged to him as of right  is  a
      very different thing from regulating procedure.  In  principle,  Their
      Lordships see no difference between abolishing  an  appeal  altogether
      and transferring the appeal to a new tribunal. In either case there is
      an interference  with  existing  rights  contrary  to  the  well-known
      general  principle  that  statutes  are  not  to  be   held   to   act
      retrospectively  unless  a  clear  intention   to   that   effect   is
      manifested.”

22.   Thereafter, the larger Bench referred to  number  of  authorities  and
proceeded to cull out the principles as follows:-

      “23. From the decisions cited above the following  principles  clearly
      emerge:

        (i) That the legal pursuit of a remedy,  suit,  appeal  and  second
      appeal are really but steps in a series of proceedings  all  connected
      by an intrinsic unity and are to be regarded as one legal proceeding.

        (ii) The right of appeal is not a mere matter of procedure but is a
      substantive right.

        (iii) The institution of the suit carries with it  the  implication
      that all rights of appeal then in force are preserved to  the  parties
      thereto till the rest of the career of the suit.

        (iv) The right of appeal is a vested right  and  such  a  right  to
      enter the superior court accrues to the litigant and exists as on  and
      from the date the lis  commences  and  although  it  may  be  actually
      exercised when the adverse judgment is pronounced such right is to  be
      governed by the law prevailing at the date of the institution  of  the
      suit or proceeding and not by the law that prevails at the date of its
      decision or at the date of the filing of the appeal.

        (v) This vested right of  appeal  can  be  taken  away  only  by  a
      subsequent enactment, if it so  provides  expressly  or  by  necessary
      intendment and not otherwise.”

  23. On a proper understanding of  the  authority  in  Garikapati  Veeraya
      (supra), which relied upon the Privy Council  decision,
three  basic
      principles, namely,
(i) the forum of appeal available to a suitor  in
      a pending action of an appeal to a superior tribunal which belongs to
      him as of right is a very different thing from regulating  procedure;
     
(ii) that it is an integral part of the right  when  the  action  was
      initiated at the time of the institution of action; and
(iii) that if
      the Court to which an appeal lies is altogether abolished without any
      forum constituted in its place for the disposal of pending matters or
      for lodgment of the appeals, vested right perishes, are  established.
   
 It  is  worth  noting  that  in  Garikapati  Veeraya   (supra),   the
      Constitution  Bench  ruled  that  as  the  Federal  Court  had   been
      abolished, the Supreme Court was entitled to hear  the  appeal  under
      Article 135 of the Constitution, and no appeal lay under Article 133.
     
The other principle that has been culled out is that the transfer of
      an appeal to another forum  amounts  to  interference  with  existing
      rights which is  contrary  to  well  known  general  principles  that
      statutes are not to be held retrospective unless a clear intention to
      that effect is manifested.

  24. In Dhadi Sahu (supra), it has been held thus:-

      “18. It may be stated at the outset that the general principle is that
      a law which brings about a change in the forum does not affect pending
      actions unless intention to the contrary is clearly shown. One of  the
      modes by which such an intention is shown is by making a provision for
      change-over of proceedings, from the court or the tribunal where  they
      are pending to the court or the tribunal which under the new law  gets
      jurisdiction to try them.

                  xxx        xxx        xxx


      21. It is also true that no litigant  has  any  vested  right  in  the
      matter of procedural law but where the question is of change of  forum
      it ceases to be a question of procedure only. The forum of  appeal  or
      proceedings is a vested right as  opposed  to  pure  procedure  to  be
      followed before a particular forum. The right becomes vested when  the
      proceedings are initiated in  the  tribunal  or  the  court  of  first
      instance and unless  the  legislature  has  by  express  words  or  by
      necessary implication clearly so indicated,  that  vested  right  will
      continue in spite of the  change  of  jurisdiction  of  the  different
      tribunals or forums.”

  25. At this stage, we may state with profit that it  is  a  well  settled
      proposition of law that enactments dealing  with  substantive  rights
      are primarily prospective unless it  is  expressly  or  by  necessary
      intention  or  implication  given  retrospectivity.   
The   aforesaid
      principle has full play when vested  rights  are  affected.   In  the
      absence of any unequivocal expose,  the  piece  of  Legislation  must
      exposit adequate intendment of  Legislature  to  make  the  provision
      retrospective.   
As has been stated in various  authorities  referred
      to hereinabove, a right of appeal as well as forum is a vested  right
      unless the said right is taken away by the Legislature by an  express
      provision in the Statute by necessary intention.

  26.  Mr. Gupta has endeavoured hard to highlight on Section  111  of  the
      2003 Act to sustain the stand that there is an intention  for  change
      of forum.  It is the admitted position that Legislature by  expressed
      stipulation in
the new legislation has not provided for  transfer  of the pending cases as was done by the Parliament in respect of service matters and suits by financial  institutions/banks  by  enactment  of
 Administrative Tribunal Act, 1985 and Recovery of Debts due to  Banks and Financial Institution Act, 1993. 
 No doubt right to appeal can be
      divested but this requires either a  direct  legislative  mandate  or
      sufficient proof or reason to show and hold that the  said  right  to
      appeal stands withdrawn and the pending proceedings stand transferred
      to different or new appellate forum.  Creation of a  different  or  a
      new appellate forum  by  itself  is  not  sufficient  to  accept  the
      argument/contention  of  an   implied   transfer.    Something   more
      substantial or affirmative is required which is not perceptible  from
      the scheme of the 2003 Act.

  27.  It is urged by Mr. Gupta that Section 6 of the General  Clauses  Act
      would not save the vested right of forum  in  view  of  the  language
      employed in Section 185(2) of the 2003 Act.  In this context, we  may
      usefully refer to Ambalal Sarabhai Enterprises Ltd. v.  Amrit  Lal  &
      Co. and Another[9] wherein the learned Judges referred to the opinion
      expressed in Kolhapur Canesugar Works Ltd. v. Union of India[10]  and
      distinguishing the same observed as follows:-

      “18. In Kolhapur Canesugar Works Ltd. v. Union of  India,  this  Court
      held: (SCC p. 551, para 37)

      “37. The position is well known that at common law, the normal  effect
      of repealing a statute or deleting a provision  is  to  obliterate  it
      from the statute-book as completely as if it had  never  been  passed,
      and the statute must be considered as a law that never existed.”

      19. Relying on this the submission for the tenant is, if the repealing
      statute deletes the provisions, it would mean they never existed hence
      pending  proceedings  under  the  Rent  Act  cannot   continue.   This
      submission has no merit. This is not a case under the Rent  Act,  also
      not a case where Section 6 of the General Clauses Act  is  applicable.
      This is a case where repeal of rules under the  Central  Excise  Rules
      was under consideration. This would have no bearing on the question we
      are considering, whether a tenant has any vested right or not under  a
      Rent Act.”

  28. We have referred  to  the  aforesaid  paragraphs  as  Mr.  Gupta  has
      contended that when there is repeal of an enactment and  substitution
      of new law, ordinarily the vested right of a forum has to perish.  On
      reading of Section 185 of the 2003 Act in entirety, it  is  difficult
      to accept the submission that  even  if  Section  6  of  the  General
      Clauses Act would apply, then also the same does not save  the  forum
      of appeal.  We do not perceive any contrary intention that Section  6
      of the General Clauses Act would not be applicable.  It is also to be
      kept in mind that the distinction between what is and what is  not  a
      right by the provisions of the Section 6 of the General  Clauses  Act
      is often one of great fitness.  What is unaffected by the repeal of a
      statute is a right acquired or accrued under it and not a mere  hope,
      or expectation of, or liberty to apply for, acquiring right (See M.S.
      Shivananda  v.  Karnataka  State  Road  Transport   Corporation   and
      Others[11]).

  29. In this context, a passage from Vijay v.  State  of  Maharashtra  and
      Others[12] is worth noting:-

      “....It is now well  settled  that  when  a  literal  reading  of  the
      provision giving retrospective effect does not  produce  absurdity  or
      anomaly, the same would not be construed to be only prospective.   The
      negation is not a rigid rule and varies with the intention and purport
      of the legislature, but to apply it in such a case is  a  doctrine  of
      fairness.”

  30. We have referred to the aforesaid passage to hold that tested on  the
      touchstone of doctrine of fairness, we are also of the  opinion  that
      the legislature never intended to  take  away  the  vested  right  of
      appeal in the forum under the 1998 Act.

  31. On the basis of the aforesaid analysis it  can  safely  be  concluded  that the conclusion of the High Court that  it  had  jurisdiction  to  hear the appeal is absolutely flawless.

  32. The next aspect that emanates for consideration is that
whether  the
      finding recorded by  the  High  Court  that  the  Commission  has  no
      authority to issue directions or to impose penalty as it  had  become
      functus officio is correct or  not.   
We  may  state  here  that  the
      learned counsel appearing for the parties very fairly stated that the
      High  Court  was  not  correct  in  using  the  expression  that  the
      Commission had become  functus  officio.   Learned  counsel  for  the
      parties, however, urged that the High  Court,  by  stating  that  the
      Commission had become functus officio, it meant after the  Commission
      had fixed the tariff it had no power to give  directions  or  proceed
      with monitoring for the purpose of compliance of the directions.   It
      is submitted by Mr. Ganesan, learned counsel for the respondent, that
      Section 22 occurring in Chapter V of the 1998 Act deals  with  powers
      and functions of the State Commission and for exercise  of  power  of
      Board under Section 22(2) a notification in the official  Gazette  by
      the State Government is required to be issued, but the same  was  not
      issued when the Commission passed the order and hence, it  is  bereft
      of jurisdiction.  In oppugnation of the said submission,  Mr.  Gupta,
      learned senior counsel appearing for the  Commission,  has  submitted
      that though no notification under Section 22(2) of the 1998  Act  has
      been issued, yet the directions which had been issued can fall within
      the ambit of Section 22(1)(d) of the 1998 Act.

  33. To appreciate the said submission we may refer to Section 22(1)(d) of
      the 1998 Act.  It reads as follows: -

      “22.  Functions of State Commission. – 
(1) Subject to  the  provisions
      of Chapter III, the State Commission  shall  discharge  the  following
      functions, namely: -

            xxx              xxx              xxx

     d) to promote competition, efficiency and economy in the activities of
        the electricity industry to achieve the  objects  and  purposes  of
        this Act.”

The language employed in Section  22(1)(d)  has  to  be  understood  in  its
proper connotative expanse.  
It enables the State Commission  to  carry  out
the function for  promoting  competition,  efficiency  and  economy  in  the
activities of the electricity industry to achieve the objects  and  purposes
of the Act.  
We find that the State Commission under Section  22(1)(d)  was
conferred power to address to various facets and we see no reason  that  the
terms, namely, “efficiency, economy  in  the  activity  of  the  electricity
industry” should be narrowly construed.  
That apart, it would not be  seemly
to say that under Section 22(1) of the 1998 Act the Commission had only  the
power to fix the  tariff  and  no  other  power.   
Had  that  been  so,  the
legislature would not have employed such wide language in Section  22(1)(d).
 At this stage, we may also note  that  the  powers  enumerated  under  sub-
section  (2)  of  Section  22  are  more  enumerative  in  nature  and   the
jurisdiction conferred comparatively covers more  fields.  
In  the  present
case, if  we  read  the  directions  issued  by  the  Commission  in  proper
perspective, the same really do not travel beyond the power conferred  under
Section 22(1)(d) of the 1998 Act.  
We are inclined to think  so  as  all  of
them can be connected with the  tariff  fixation  and  with  the  associated
concepts, namely,  purpose to promote competition,  efficiency  and  economy
in the activities of the electricity industry regard being  had  to  achieve
the objects and purposes of the Act.

  34. It is not inapposite to take note of the  fact  that  the  Board  had
      agreed to comply and submit the report.  
Though the Commission  later
      on has found some fault with the Board, yet we factually  find  on  a
      close perusal of the explanation by the Board  that  there  has  been
      real substantial compliance with the  directions.
In  this  factual
      backdrop, it was not correct on the part of the Commission to  impose
      penalty on the Board.  
However, we may hasten to add that  under  the
      2003 Act constitution of the State Commission is governed by  Section
      82.
Section 86 deals with the function of the State Commission.   On
      a reading of Section 86 we find that at present  no  notification  is
      required to be issued to confer any power on  the  State  Commission.
      It is conferred and controlled by the statute.  
If anything  else  is
      required to be done in praesenti, the Commission  is  at  liberty  to
      proceed under the provisions of the 2003 Act.  
Be it  clarified,  our
      grant of liberty  may  not  be  understood  to  have  said  that  the
      Commission can take any action arising out of its earlier order dated
      29.10.2001 or any subsequent orders passed thereon.
We have said so,
      for the Commission and a statutory Board can really work  to  achieve
      the objects and purposes of the 2003 Act.

  35. The appeals stand disposed of in the above terms leaving the  parties
      to bear their respective costs.


                                             .............................J.
                                                              [Anil R. Dave]


                                             .............................J.
                                                               [Dipak Misra]

New Delhi;
October 03, 2013.
-----------------------
[1]  (1955) 1 SCR 893
[2] AIR 1960 SC 794
[3] (1994)  5 SCC 465
[4] (1996) 8 SCC 388
[5] 1994 Supp (1) SCC 257
[6] AIR 1953 SC 221
[7] AIR 1957 SC 540
[8] 1905 AC 369
[9] (2001) 8 SCC 397
[10] (2000) 2 SCC 536
[11] (1980) 1 SCC 149
[12] (2006) 6 SCC 289

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