2009 Supreme(SC) 414

2009(3) Supreme 59
SUPREME COURT OF INDIA
S.B. Sinha, Lokeshwar Singh Panta and B. Sudershan Reddy, JJ.
U.P. Power Corporation Ltd. — Appellant
versus
National Thermal Power Corporation Ltd. and others — Respondents
Civil Appeal No. 1110 of 2007
with
Civil Appeal Nos. 1138, 1152, 1327, 1112 of 2007
Decided on : 03-03-2009

IMPORTANT POINT
The Electricity Appellate Tribunal can interfere with the finding of the Central Commission both on fact as also on law.

Headnote:(a) Electricity Regulatory Commission – A regulatory Commission not only makes Regulations but in view of its extensive powers is also in-charge of implementation thereof – In the event of any dispute or difference arising between several players involved in the framing of tariff for the consumers of electrical energy it has also an adjudicatory role to play. (Para 5)

        (b) Electricity Regulatory Commission – The Central Commission has the exclusive jurisdiction to frame not only tariff but also any amendment, alterations and additions in regard thereto. (Para 28)

        (c) Central Electricity Regulatory Commission (Conduct of Business) Regulations, 1999 – Regulation 103 – The Central Commission is conferred a power of review – Acordingly, it may not only exercise its jurisdiction suo motu but it may review a decision even if an application is filed within a period of sixty days of making of any decision, direction or order. (Para 29)

        (d) Central Electricity Regulatory Commission (Conduct of Business) Regulations, 1999 – Regulation 103 – While exercising its power of review so far as alterations or amendment of a tariff is concerned, the Central Commission stricto sensu does not exercise a power akin to Section 114 or Order XLVII, Rule 1, CPC – Its jurisdiction, in that sense for the aforementioned purposes would not be barred in terms of Order II, Rule 2, CPC or the principles analogous thereto – Even principles of res judicata will have no application. (Paras 32 and 34)

        (e) Central Electricity Regulatory Commission (Conduct of Business) Regulations, 1999 – Regulation 92 r/w regulations 10 to 117 – Revision of a tariff must be distinguished from a review of a tariff order. (Para 33)

        (f) Code of Civil Procedure, 1908 – Section 11 – While a tribunal or a court exercises adjudicatory power, although provisions of Section 11 are not applicable – However the general principles of res judicata may be applicable. (Para 35)

        (1970) 1 SCC 673; (1987) 2 SCC 591; (1999) 1 SCC 693; (1986) 1 SCC 100; (1989) 4 SCC 595 – Relied upon.

        (g) Central Electricity Regulatory Commission (Conduct of Business) Regulations, 1999 – Regulations 92 and 94 – These provisions do not restrict the power of the Central Commission to make additions or alterations in the tariff – Such power can be exercised by the Commission not only on an application filed by the generating companies but also on its own motion. (Para 36)

        (h) Electricity Act, 2003 – Section 28 – Empowers the Central Commission to determine the terms and conditions for fixation of tariff – Actual expenses for 2001-2002 were not available and the normative expenses for the last five years only were available – Moreover there was an unexpected abnormal increase – This was justification enough for filing the application for review of the tariff. (Paras 38 and 41)

        (i) Interpretation of Statutes – Well-settled that a subordinate legislation validly made becomes a part of the Act and should be read as such. (Para 43)

        (j) Electricity Act, 2003 – Section 28 – Regulation – The word regulation is sometimes considered to be unruly horse – Regulatory provisions are required to be applied having regard to the nature, textual context and situational context of each statute and case concerned – Power of Central Commission stricto sensu is not a judicial power. (Paras 44 and 45)

        (1948) 76 CLR 1; 1992 Supp (1) SCC 684 at 687; (1989) 2 SCC 505; (1964) 7 SCR 456; (2007) 7 SCC 636; (2006) 13 SCC 753; (1985) 2 SCC 116; (2007) 8 SCC 197; (1985) 2 SCC 16 – Relied upon.

        (k) Central Electricity Regulatory Commission (Terms & Conditions of Tariff) Regulations, 2001 – Regulation 2.7(d)(iv) – Applications must be entertained only in the event any situation arose within the purview thereof and not at any point of time. (Para 49)

        (l) Judicial Review – Jurisdiction of the appellate tribunal is wide – It can interfere with the finding of the Central Commission both on fact as also on law. (Para 53)

        (2004) 8 SCC 524 – Relied upon.

        (1987) 2 SCC 720; (1990) 3 SCC 2 – Distinguished.

       Facts of the case :

        1. The question which arises for consideration herein is as to whether the amount required to be paid by the first respondent National Thermal Power Corporation towards revision of scales of pay of its employees in terms of the recommendations made by the High Level Committee with retrospective effect from 1st January, 1997 can be a subject matter of revision in tariff for the tariff years 1997-1998 ; 1998 - 1999 and 1999 -2000.

       Finding of the Court :

        It was not a fit case where the appellate tribunal should have interfered with the order of the Central Commission.

       Result : Appeal allowed with cost.