The appropriate government for prescribing by rules the Appellate Authority under Section 127(1) of the Electricity Act, 2003 with respect to a State transmission utility is the State Government.

( 1 ) THE writ petitioner, a consumer within the meaning of provisions of the Electricity Act, 2003, is aggrieved by the order of S. E. and Circle manager, Tamluk (D) Circle, dated June 17, 2005 disposing of his appeal preferred under section 127 of the Electricity Act, 2003.

( 2 ) CONTENTIONS raised by the petitioner are two fold : (i) the authority who made the order in the appeal was not competent to act as the Appellate Authority, (ii) his case regarding nature of the manufacturing activity of his factory was not considered by the authority for the purpose of determining which tariff rate would be applicable.

( 3 ) REGARDING the first contention, advocate for the petitioner argues that Section 176 (2) (u) of the Act empowered the Central Government to make rules for indicating who would be the Appellate Authority for the purpose of Section 127 (1) of the Act, and in exercise of such power the central Government made the appeal of the Appellate Authority Rules, 2004, rule 3, saying :"for the purposes of appeal under Section 127, the State government may designate by notification published in the Official gazette, a person who is a Gazetted Officer of the said Government or has been a District Judge or Officer of equivalent rank, as appellate Authority. "

( 4 ) ADVOCATE points out that while the rules made by the Central government were published in the Official Gazette on April 16, 2004, the state Government issued a notification dated March 12, 1004 (it was published in the Official Gazette on March 16, 2004), saying :"in exercise of the power conferred by sub-section (1) of Section 127 of the Electricity Act, 2003 [36 of 2 (x)] read with rule 3 of the west Bengal Electricity (manner of service of order of provisional assessment and Appellate Authority) Rules, 2003, the Governor is pleased hereby to notify that each of the following officers of the west Bengal State Electricity Board shall function as Appellate authority : (1) For a low and medium voltage consumer - Circle manager, (2) For a decentralized bulk consumer - Chief Engineer (Distribution ). (3) For a centralized bulk consumer - Chief Engineer (Commercial ). "

( 5 ) ARGUMENT of the Advocate for the petitioner is that once the power to make rules for indicating the Appellate Authority was given to the Central Government, State Government was not authorised to issue any notification empowering any authority or person, other than the ones mentioned in the rules made by the Central Government, to act as the appellate Authority under Section 127 (1) of the Act.

( 6 ) ADVOCATE for the respondents argues that the Appellate authority is that authority as may be prescribed. For this he refers me to section 127 (1) of the Act. He says that Section 2 (52) of the Act defines the word prescribed to mean prescribed by rules made by the appropriate government under the Act. By referring me to Section 2 (5) (b) he says that since the respondent board is a state transmission utility within the meaning of Section 2 (67) read with Section 122 (under which the State government has already issued the requisite notification), for making rules to prescribe the Appellate Authority under Section 127 (1), the State government is the appropriate Government, and not the Central government.

( 7 ) HIS further argument is that while the Appellate Authority mentioned in the April 16, 2004 notification issued by the Central government. would be empowered to act as the Appellate Authority under section 127 (1) with respect to the company and things mentioned in section 2 (5) (a) of the Act, the authorities mentioned in the State government's notification dated March 12, 2004 would be empowered to act as the Appellate Authority with respect to a State transmission utility like the respondent board.

( 8 ) IN my view, arguments made by Advocate for the respondent board should be accepted. I agree with him that in view of provisions contained in Sections 2 (5), 2 (52), 2 (6