Point of Law: Arbitration Act - Court is inclined to hold that adjudicatory process was indeed involved in passing of the orders by the respondent no.2 Commission. However, as there was no Judicial Member in the respondent no.2 Commission, the said orders are found to be vitiated by principle of coram non judice.

JUDGMENT :

Heard Mr. N. Kohli, learned counsel, assisted by Mr. D. Nath, learned counsel for the petitioner/opposite party no.1. Also heard Mr. G.N. Sahewalla, learned senior counsel, assisted by Mr. D. Senapati, learned counsel for the respondent no.1/applicant, Mr. S.N. Sarma, learned senior counsel, assisted by Mr. K. Kalita, learned counsel for respondent no.2/opposite party no.2 and Mr. C.K.S. Barua, learned Government advocate appearing for the respondent opposite party no.3.

2) This revision has been filed under Article 227 of the Constitution of India to assail the orders dated 21.09.2018 and 06.10.2018, passed by the Assam Electricity Regulatory Commission, i.e. respondent no.2 in connection with petition no. 4/2010 as well as the order dated 11.02.2020, passed in review petition no. 2/2020, review petition no. 3/2020 and review petition no. 4/2020.

3) The matter came up before the Court on 19.11.2020, and this Court, while issuing notice of motion, had stayed the Arbitration Case No. 21(DB)/2018, pending before the Sole Arbitrator.

4) The respondent no.1 in the writ petition by filing the connected interlocutory application, had prayed for vacation/ modification and/or alteration of the interim order of stay passed on 19.11.2020. Having noticed that this case involves question of law and with the effort which would be required to dispose of the interlocutory application, the connected revision can also be disposed of, both the matters were heard at the ‘admission’ stage with the consent of the learned senior counsel/ counsel appearing for the parties.

5) In this common order in connection with the revision as well as the interlocutory application, the parties are referred to as per their position in the writ petition for the sake of convenience.

6) The facts are in a very narrow campus. For the sake of brevity, it would suffice to mention that the petitioner and respondent no1 had entered into a power-purchase agreement on 09.02.1995 (hereinafter referred to as the ‘PPA’ for brevity), by which it was agreed that the respondent no.1 would develop, finance, construct, own and operate power plants and sell power to the petitioner. In course of time, disputes and differences arose between the respondent no.1 and the petitioner with regard to the fixation of tariff vis-à-vis entitlement as per the PPA. Resultantly, by filing a Misc. Petition before the respondent no.2, which was registered as Petition No. 4/2010, commercial dispute pertaining to period from 1997 to 31.03.2008 was raised before the respondent no.2 Commission. The said petition was admitted by order dated 12.10.2010. The respondent no.1 projects that they were diligently pursuing the matter, but the hearing before the respondent no.2 Commission did not commence. Therefore, the aggrieved respondent no.1 filed a writ petition before this Court, being W.P.(C) 4148/2016, and this Court by order dated 20.07.2016, had disposed of the writ petition with a direction that the dispute petition would be disposed of within a period of 4 months from the date of receipt of certified copy of the order. By order dated 05.08.2016, the respondent no.2 sought for submission of the views in the matter of appointment of arbitrator. The respondent no.2 Commissioner had approached this Court by filing an interlocutory application, being I.A.(C) 1784/2016 in connection with W.P.(C) 4148/2016 and this Court by order dated 08.03.2017, passed the order to the following effect:-

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Mr. Patowari submits that under the provision of Section 86(1)(f) of Electricity Act, 2003, Commission has the power to adjudicate and/or to refer any dispute for arbitration and basically clarification is sought as to whether the Commission would be permitted to refer the dispute for arbitration.

Mr. Sahewalla submits that he will have no objection if the Commission decides the matter or refers the same to arbitration.

Mr. Nath endorses the submissions of Mr. Sahewalla

In view of the above, IA stands disp