K.M. Joseph, J.

There has been some delay in filing the Special Appeal Nos. 291 of 2016, 283 of 2016, 284 of 2016, 290 of 2016, 287 of 2016, 288 of 2016, 289 of 2016 and 286 of 2016. Heard learned counsel for the parties. The delay is not opposed. Accordingly, we condone the delay. The Delay Condonation Applications will stand allowed.

2. Appellants are the writ petitioners, who before the learned Single Judge called in question the Awards passed by the Ombudsman, who acted under Section 42(7) of the Electricity Act, 2003 (hereinafter referred to as the ‘Act’). The learned Single Judge declined the relief and hence the appeals.

3. When the matter was taken up, a contention was taken by the respondents that the appeals are not maintainable. Rule 5 contained in Chapter VIII of the High Court Rules controls the issue. Since much turns on the said Rule, we extract the same as under:

“5. Special appeal. – An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award (a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge.”

4. From a perusal of the said Rule, it is clear that when a writ petition is maintained under Article 226 or 227 of the Constitution of India against an order passed by a Tribunal constituted by a Central Act or a State Act relating to Concurrent List or the State List, further appeal will not lie from the judgment passed by the learned Single Judge. Therefore, the short question which arises is whether the order passed by the Ombudsman or the decision of the Ombudsman under Section 42(7) of the Act is one passed by a Tribunal. There is no dispute that the Act is enacted in relation to the field of legislation coming under the Concurrent List.

5. We have heard Mr. Navneet Kaushik, Mr. Shobhit Saharia and Mr. Piyush Garg, learned counsel appearing on behalf of the appellants; Mr. A. S. Rawat, learned Senior Advocate, assisted by Mr. D.S.Patni and Mr. Naresh Pant, Advocates for the Uttaranchal Power Corporation; and Mr. Rajiv Singh Bisht, learned Brief Holder, appearing for the State.

6. Before we proceed to consider the issue, it is necessary to set out the statuary framework. Section 42 of the Act reads as follows:

“42. Duties of distribution licensees and open access. –

(1) It shall be the duty of a distribution licensee to develop and maintain an efficient co-ordinated and economical distribution system in his area of supply and to supply electricity in accordance with the provisions contained in this Act.

(2) The State Commission shall introduce open access in such phases and subject to such conditions, (including the cross subsidies, and other operational constraints) as may be specified within one year of the appointed date by it and in specifying the extent of open access in successive phases and in determini9ng in charges for wheeling, it shall have due regard to all relevant factors including such cross subsidies, and other operational constraints:

Provided that [Subs. By Act 26 of 2007, sec. 7 (i), for the words “such open access may be allowed before the cross subsidies are eliminated, on payment of a surcharge”