Important Point
The transaction between GRIDCO and PTC to sale surplus electricity was inter-state one.

Judgment

Dr. Arijit Pasayat, J. —

1.These appeals involve an important question regarding jurisdiction of the Appellate Tribunal for Electricity (in short ‘Appellate Tribunal’), New Delhi. The first Judgment of the Appellate Tribunal is assailed in the case of appellant-Grid Corporation of Orissa Ltd.

2.Background facts in a nutshell are as follows :

Respondent No.1-Gajendra Haldea a serving officer based in Delhi filed a petition before the Central Electricity Regulatory Commission (in short the ‘CERC’) purportedly under Section 52 read with Section 79(1)(g) of the Electricity Act, 2003 (in short the ‘Act’) on 28.2.2006. The prayers inter-alia were under:

(a)Direct GRIDCO to adhere to the maximum trading margin of 4 paise while entering into a contract for sale of power to any trading licensee in case such power is ultimately routed to a licensee outside the State of Orissa through an inter-state transmission system.

(b)Direct GRIDCO to file appropriate returns in the prescribed Form-III of the Central Electricity Regulatory Commission (Procedure, Terms & Conditions for grant of Trading Licence and other related matters) Regulations, 2004 in respect of each transaction of sale, where the electricity sold by it has been ultimately transferred to a license outside the State of Orissa using inter-state transmission system.

(c)Direct GRIDCO not to sell electricity in the course of inter state trade with a margin exceeding 4 paisa per unit and to modify any contract that allows it to retain a higher margin.

(d)Direct GRIDCO not to invite bids with the intent of selling electricity in the course of inter-state trade with a margin exceeding 4 paisa per unit.

(e)Exempt petitioner from the requirement of payment of the prescribed fee.

(f)Pass such other and further Orders and/or directions as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.”

As is evident from paras 9 and 11 of the petition, the same was purportedly in public interest and was intended to save interests of consumers of electricity in the country. The appellant-Grid Corporation of India filed objections inter-alia taking the stand that petition filed by respondent No.1-Gejendra Haldea was misconceived and not maintainable in law and was liable to be rejected. By Order dated 1.5.2006 CERC dismissed the petition and following findings were recorded:

“In our considered view, GRIDCO though deemed to be an Electricity trader is an inter- state trader and is amenable to the jurisdiction of the Orissa Commission. Therefore, the Trading margin of 4 paise/KW specified by the Commission in its Notification dated 23.1.2006 published in the Official Gazette on 27.1.2006 does not apply to GRIDCO.”

Challenging the Order of CERC, respondent No.1-Gajendra Haldea carried the matter before the Appellate Tribunal in appeal purportedly filed under Section 111 of the Act. By the impugned Order, the Appellate Tribunal allowed the appeal and granted reliefs as prayed for by respondent No.1.

3.The basic challenge in these appeals is that the petition filed by respondent No.1-Gajendra Haldia was thoroughly mis-conceived because the appeal in terms of sub-section (1) of Section 111 has to fulfill the following requirements.

“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 any penalty shall, while filing 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 u