TMI Blog2013 (10) TMI 1462X X X X Extracts X X X X X X X X Extracts X X X X ..... mission was established for rationalization of electricity tariff, transparent policies regarding subsidies, promotions of efficient and environmentally benign policies and for matters connected therewith or incidental thereto. In exercise of the power conferred on it under Sections 22 and 29 of the 1998 Act the Commission vide order dated 29.10.2001 determined the tariff applicable for electricity in the State of Himachal Pradesh. While determining the tariff it also issued certain directions which are as follows:- (a) Furnishing of information and also periodical reports with respect to the value of the assets and capital projects of the Board. (b) Replacement of all dead and defective meters by electronic meters from 31 st March, 2002 onwards and reporting the status, as on 31 st December, 2001 by 31 st March, 2002. (c) To develop and implement a comprehensive public interaction programme through Consultative Committees, preparation, publication and advertisement of material helpful to various consumer interest groups and general public on various activities of the utility, dispute settlement mechanism, accidents, rights and obligations of the consumers e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its regulatory functions proceeded to review the directions issued by it and found that part of the tariff had not been complied with. In view of the complaints, the Commission issued notice on 23.7.2002 under Section 45 of the 1998 Act. Pursuant to the aforesaid notice the Board filed its reply raising the question of jurisdiction and competence of the Commission to issue the aforesaid directions. The Commission while dealing with the same framed number of issues and thereafter came to hold that the Board had not fully complied with the directions of the Commission, and accordingly imposed penalty of ₹ 5000/- on the Board with a further stipulation that the same shall be deposited within a period of 30 days. The Board was directed to submit further steps taken by it before the Commission. 6. Being aggrieved by the aforesaid order, the Board preferred an appeal under Section 27 of the 1998 Act forming the subject matter of FAO No. 489 of 2002. 7. During the pendency of the appeal, the 1998 Act was repealed and the Electricity Act, 2003 (for short, the 2003 Act ) came into force. The 2003 Act was brought in to consolidate the laws relating to generation, transmission, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also out of the context. As already noticed, the Commission was approached by the Board to fix the tariff of electricity. Once the tariff had been fixed the job of the Commission was over. It became functus officio once the function of determination of tariff had been performed. The interests of the Board and the consumers were required to be borne in mind and protected while fixing the tariff. The Commission could not have arrogated to itself and superintendence and control of the Board on the pretension of watching and protecting the larger interests of the Board and the consumers. As stated earlier, the aforesaid judgment and order are the subject matter of assail before us in these appeals. 10. Mr. Jaideep Gupta, learned senior counsel, questioning the sustainability of the judgment of the High Court has raised the following submissions:- (a) The High Court has absolutely flawed by coming to hold that appeal was maintainable before it despite a separate forum having been created and provision for appeal being engrafted under Section 111 of the 2003 Act. It is urged by him that the High Court has totally misguided itself in interpreting the Repeal and Saving pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpeccable. (iii) The Commission under the 1998 Act could not have issued directions inasmuch as the notification issued by the State had only conferred powers under Section 22 (1) of the 1998 Act and not under any other provisions, and hence, the directions issued travel beyond the power conferred which have been appositely nullified. It is further argued that though the finding of the High Court that the Commission had become functus officio may not be a correct expression in law but directions issued being without jurisdiction, the Commission could not have been proceeded and imposed penalty. Alternatively, it is submitted that even if the issue of jurisdiction is determined in favour of the Commission. The directions issued by it having been substantially complied with by the respondent and there being no willful and deliberate non-compliance, on the facts and circumstances imposition of penalty was not justified. 12. First, we shall proceed to deal with the jurisdiction of the High Court to hear the appeal after coming into force the 2003 Act. The Board, as is manifest, was grieved by order imposing penalty. The relevant part of the order of the Commission reads as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification, establish an Appellate Tribunal to be known as the Appellate Tribunal for Electricity to hear appeals against the orders of the adjudicating officer or the Appropriate Commission [under this Act or any other law for the time being in force]. 15. Section 111 provides for an appeal to the appellate tribunal. Sub-Sections (1) and (2) being relevant for the present purpose are reproduced below:- 111. Appeal to Appellate Tribunal - (1) Any person aggrieved by an order made by an adjudicating officer under this Act (except under section 127) or an order made by the Appropriate Commission under this Act may prefer an appeal to the Appellate Tribunal for Electricity: Provided that any person appealing against the order of the adjudicating officer levying and penalty shall, while filling the appeal , deposit the amount of such penalty: Provided further that where in any particular case, the Appellate Tribunal is of the opinion that the deposit of such penalty would cause undue hardship to such person, it may dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the realisation of penalty. (2) Every appeal under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Schedule shall continue to apply for the period for which such directions were issued by the State Government. (3) The provisions of the enactments specified in the Schedule, not inconsistent with the provisions of this Act, shall apply to the States in which such enactments are applicable. (4) The Central Government may, as and when considered necessary, by notification, amend the Schedule. (5) Save as otherwise provided in sub-section (2), the mention of particular matters in that section, shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897), with regard to the effect of repeals. 18. It is submitted by Mr. Jaideep Gupta, learned senior Counsel that when the 1998 Act has been repealed and a new legislation has come into force the intention of the legislature is clear to the effect that the appeals are to be heard by the newly constituted appellate tribunal. Learned senior counsel would also contend that if the interpretation placed by the High Court is accepted then there would be two appellate authorities after the enactment of the 2003 Act which would lead to an anomalous situation. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the appellant had admitted due to him had been paid. The amended provision laid a postulate that appeal had to be admitted subject to the satisfaction of proof of payment of tax in appeal to which the appeal had been preferred. It was contended that the appellant was covered under the unamended provision and that he had not admitted any tax and hence, he was not liable to deposit any sum along with the appeal. It was urged before this Court that the restriction imposed by the amending Act could not affect his right to appeal as the same was a vested right prior to the amendment at the time of commencement of the proceeding under the Act. Dealing with the said contention, the Court opined that a right of appeal is not merely a matter of procedure but a matter of substantive right. It was also held that the right of appeal from the decision of an inferior tribunal to a superior tribunal becomes vested in a party when proceedings are first initiated and before a decision is given by the inferior Court. It has been further observed that such a vested right cannot be taken away except by express enactment or necessary intendment and an intention to interfere with or to impair or imper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect is manifested. 22. Thereafter, the larger Bench referred to number of authorities and proceeded to cull out the principles as follows:- 23. From the decisions cited above the following principles clearly emerge: ( i ) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. ( ii ) The right of appeal is not a mere matter of procedure but is a substantive right. ( iii ) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. ( iv ) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... press words or by necessary implication clearly so indicated, that vested right will continue in spite of the change of jurisdiction of the different tribunals or forums. 25. At this stage, we may state with profit that it is a well settled proposition of law that enactments dealing with substantive rights are primarily prospective unless it is expressly or by necessary intention or implication given retrospectivity. The aforesaid principle has full play when vested rights are affected. In the absence of any unequivocal expose, the piece of Legislation must exposit adequate intendment of Legislature to make the provision retrospective. As has been stated in various authorities referred to hereinabove, a right of appeal as well as forum is a vested right unless the said right is taken away by the Legislature by an express provision in the Statute by necessary intention. 26. Mr. Gupta has endeavoured hard to highlight on Section 111 of the 2003 Act to sustain the stand that there is an intention for change of forum. It is the admitted position that Legislature by expressed stipulation in the new legislation has not provided for transfer of the pending cases as was done by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 185 of the 2003 Act in entirety, it is difficult to accept the submission that even if Section 6 of the General Clauses Act would apply, then also the same does not save the forum of appeal. We do not perceive any contrary intention that Section 6 of the General Clauses Act would not be applicable. It is also to be kept in mind that the distinction between what is and what is not a right by the provisions of the Section 6 of the General Clauses Act is often one of great fitness. What is unaffected by the repeal of a statute is a right acquired or accrued under it and not a mere hope, or expectation of, or liberty to apply for, acquiring right (See M.S. Shivananda v. Karnataka State Road Transport Corporation and Others, (1980) 1 SCC 149 ). 29. In this context, a passage from Vijay v. State of Maharashtra and Others, (2006) 6 SCC 289 is worth noting:- ....It is now well settled that when a literal reading of the provision giving retrospective effect does not produce absurdity or anomaly, the same would not be construed to be only prospective. The negation is not a rigid rule and varies with the intention and purport of the legislature, but to apply it in such a case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 22(1)(d) has to be understood in its proper connotative expanse. It enables the State Commission to carry out the function for promoting competition, efficiency and economy in the activities of the electricity industry to achieve the objects and purposes of the Act. We find that the State Commission under Section 22(1)(d) was conferred power to address to various facets and we see no reason that the terms, namely, efficiency, economy in the activity of the electricity industry should be narrowly construed. That apart, it would not be seemly to say that under Section 22(1) of the 1998 Act the Commission had only the power to fix the tariff and no other power. Had that been so, the legislature would not have employed such wide language in Section 22(1)(d). At this stage, we may also note that the powers enumerated under sub-section (2) of Section 22 are more enumerative in nature and the jurisdiction conferred comparatively covers more fields. In the present case, if we read the directions issued by the Commission in proper perspective, the same really do not travel beyond the power conferred under Section 22(1)(d) of the 1998 Act. We are inclined to think so as all of them can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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