2015 Supreme(SC) 1020

SUPREME COURT OF INDIA
VIKRAMAJIT SEN, SHIVA KIRTI SINGH, JJ.
A.P. Power Coordination Committee & Ors. – Appellants
Versus
M/s. Lanco Kondapalli Power Ltd. & Ors. – Respondents
CIVIL APPEAL NO.6036 OF 2012 WITH C.A.Nos. 6061 of 2012; 6138 of 2012; 9304 of 2013 and 6835 of 2015
Decided On : 16-10-2015

.IMPORTANT POINTS
Power to appoint arbitrator in electricity disputes vests in the Commission, not in the civil court or the High Court.
Arbitral proceedings would however be conducted as provided in the Act, 1996.
Limitation Act by itself is not applicable to Electricity Regulatory Commission.
Provisions of Limitation Act cannot be adopted even for regulating quasi judicial functions of the Commissions.
Claims not recoverable in a regular suit or any other regular proceeding such as arbitration, on account of law of limitation cannot be entertained by Commission.
Period spent in prosecuting arbitration before High Court should be excluded while calculating limitation.

Headnote:(a) Electricity Act, 2003 – Section 86(1)(f) – State Electricity Regulatory Commission alone competent to adjudicate disputes between utilities and appoint arbitrator – Chief Justice or his designate u/s 11 of Arbitration and Conciliation Act, 1996 not competent to appoint arbitrator in electricity disputes – The arbitral proceedings to be conducted as per 1996 Act. (Para 5, 13)

       (2008) 4 SCC 755 – Relied upon

       (b) Electricity Act, 2003 – Section 86(1)(f) – Limitation Act by itself not applicable to Electricity Regulatory Commission which is not a Court stricto sensu – Commission being a statutory tribunal, cannot act beyond the Act. (Para 28)

       (2015) 7 SCC 58 – Relied upon

       (2014) 11 SCC 53 – Distinguished

       (c) Electricity Act, 2003 – Section 175 r/w section 86(1)(f); and section 14, Limitation Act, 1963 – Provisions of Electricity Act are in addition to and not in derogation of any other law – Does not mean that Limitation Act will be adopted for regulating varied and numerous powers and functions of authorities – State and Central Electricity Regulatory Commissions discharging various administrative and quasi judicial functions u/s 86(1)(f) – Provisions of Limitation Act cannot be adopted even for regulating quasi judicial functions of the Commissions. (Para 28)

       (d) Electricity Act, 2003 – Section 175 and 174 r/w section 86(1)(f) – Commission, status of – A substitute for Civil Court in respect of all disputes between the licencees and generating companies – Including disputes arising purely out of a contract – Commission to adjudicate itself or refer the matter to arbitration – In any case it should see whether the claim is maintainable – The dues must be recoverable in law – Neither any limitation provided in the Act nor Commission’s adjudicatory power u/s 86(1)(f) enlarged to entertain even the time barred claims – No conflict between the provisions of the Electricity Act and Limitation Act – Section 174 of the Act not attracted – Claims not recoverable in a regular suit or any other regular proceeding such as arbitration, on account of law of limitation – Cannot be entertained by Commission – However, in appropriate case, a specified period may be excluded following the principle underlying provisions like Section 5 or 14 of the Limitation Act. (Para 29, 30)

       (2008) 4 SCC 755; (1999) 3 SCC 657; (1976) 3 SCC 407 – Relied upon

       AIR 1933 PC 63; 1992 Supp. (2) SCC 651; (1967) 3 SCR 163; AIR 1956 SC 66; (2000) 5 SCC 355; (1975) 4 SCC 22; AIR 1962 SC 1621; AIR 1963 SC 416; (1995) 5 SCC 5; (2008) 7 SCC 169; (2011) 10 SCC 316; 100 U.S. 483; (1958) 2 All.ER 336; (1964) 3 SCR 709; (1998) 2 SCC 242; (1969) 2 SCC 187; AIR 1958 SC 328; (1969) 1 SCC 110 – Referred

        (e) Electricity Act, 2003 – Section 86(1)(f) r/w section 14, Limitation Act, 1963 – Principles underlying section 14 applicable to proceeding u/s 86(1)(f) – Referring a matter to arbitration is prerogative of Commission, not High Court – Period spent in prosecuting arbitration before High Court was before a wrong forum – Needs to be excluded – APTEL rightly excluding the period from notice for arbitration (in terms of section 21of Act 1996) to disposal of application u/s 11. (Para 32)

       (2015) 7 SCC 58 – Relied upon

       (f) Power Purchase Agreement – Article 11.4 and 3.9 – Article 11.4 stipulating procedure for making claims on account of change in law – Article 1.4 relating to additional or reduced expenditures or costs due to change in Law – Article 3.9 relating to burden on account of income tax – Article 11.4 cannot be invoked for such burden – Special provision u/Art 3.8 should have precedence over general provision u/art 11.4. (Para 37, 38)

       Facts of the case:

       C.A.No.6036 of 2012 as well as C.A.No.6061 of 2012 are statutory appeals arising out of a common order dated 2.7.2012 passed by Appellate Tribunal for Electricity (APTEL) whereby pleas under Section 14 of the Limitation Act, 1963 to explain the alleged delay in preferring claims by the common respondent – M/s. Lanco Kondapalli Power Ltd. (M/s. LANCO) a power generating company before the Andhra Pradesh Electricity Regulatory Commission has been accepted and as a result the main claim relating to Bill for Capacity Charges and in the other appeal for Minimum Alternate Tax (MAT) for 2001-2005 have been remanded for a follow up order by the Commission on the actual claims and interest. In respect of MAT, a concession on merits was recorded in respect of period 2006-2009 and for the earlier period (2001-2005) the contest was confined only to issue of limitation, as evidenced by Original Order of Commission dated 13.6.2011.

       Hence, through a SLP leading to C.A.No.6835 of 2015, the Appellant has chosen to make a direct challenge to aforesaid order to explain and overcome the alleged concession in respect of claim for reimbursement of MAT for the entire period of 2001-2009. C.A. No.6138 of 2012 is a statutory appeal to again challenge MAT for 2006-2009 but directed against appellate order dated 20.7.2012 by APTEL. The last matter, C.A.No.9304 of 2013 arises out of a SLP against the original order of Commission dated 8.8.2013 relating to MAT claim for the period 2009-2012.

       Finding of the Court:

       M/s. LANCO rightly appreciated the hurdle of limitation in its way when such an objection was taken by the appellant and it rightly chose to seek exclusion of the period it was pursuing arbitration proceeding before the High Court, on the basis of principles underlying Section 14 of the Limitation Act.

       Result:

       Appeals dismissed.