TMI Blog2018 (4) TMI 1945X X X X Extracts X X X X X X X X Extracts X X X X ..... . iii. That in any adjudicatory function of the State Commission, it is mandatory for a member having the aforesaid legal expertise to be a member of the Bench. iv. The challenge to the appointment of the Chairman and Member of the Tamil Nadu State Commission is rejected as also the suo moto proceedings carried out by the Commission. v. Our judgment will apply prospectively and would not affect the orders already passed by the Commission from time to time. vi. In case there is no member from law as a member of the Commission as required aforesaid in para 2 of our conclusion, the next vacancy arising in every State Commission shall be filled in by a Member of law in terms of Clause (ii) above. Transfer petition allowed. - Civil Appeal Nos. 14697, 13451 of 2015, T.C. (C) Nos. 139, 138, 137, 140/2015, C.A. No. 3759-3760/2016 and T.P. (C) No. 974/2016 - - - Dated:- 12-4-2018 - Jasti Chelameswar And Sanjay Kishan Kaul, JJ. For the Appearing Parties : K.K. Venugopal, AG, Atmaram N.S. Nadkarni, ASG, Subramonium Prasad, Sr. Adv. AAG, Arvind P. Datar, Shekhar Naphade, Jayant Bhushan, Sr. Advs., M.G. Ramachandran, R. Balasubramanian, Aarti Sharma, Liz Mathew, P.K. Mul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... performs, to establish that a Judge alone should preside over these Commissions. 6. We do not see the necessity of going into individual facts nor were the pleas advanced on that basis before us. The submissions have been based on the provisions of the said Act and the legal pronouncements dealing with the issue of the mandatory requirement of certain Commissions to be headed by a judicial mind. The Act: 7. The said Act came into force on 10.6.2003 on publication in the Gazette. The Act seeks to consolidate the laws relating to generation, transmission, distribution, trading and use of electricity. The Preamble to the said Act states as under: An Act to consolidate the laws relating to generation, transmission, distribution, trading and use of electricity and generally for taking measures conducive to development of electricity industry, promoting competition therein, protecting interest of consumers and supply of electricity to all areas, rationalisation of electricity tariff, ensuring transparent policies regarding subsidies, promotion of efficient and environmentally benign policies, constitution of Central Electricity Authority, Regulatory Commissions and establish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of constitution of State Commission while Section 84 prescribes the qualifications for appointment of Chairperson and Members of State Commissions. Section 85 of the said Act provides for constitution of Selection Committee to select Members of State Commission and Section 86 prescribes the functions of State Commission. Similar to the Central Advisory Committee, the State Advisory Committee can be constituted Under Section 87 of the said Act with similarity of functions Under Section 88 of the said Act. The relevant provisions, which will have to be referred to are being reproduced hereunder: Section 84. Qualifications for appointment of Chairperson and Members of State Commission. - (1) The Chairperson and the Members of the State Commission shall be persons of ability, integrity and standing who have adequate knowledge of, and have shown capacity in, dealing with problems relating to engineering, finance, commerce, economics, law or management. (2) Notwithstanding anything contained in Sub-section (1), the State Government may appoint any person as the Chairperson from amongst persons who is, or has been, a Judge of a High Court: Provided that no appointment under thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urcharge thereon, if any, for the said category of consumers; (b) regulate electricity purchase and procurement process of distribution licensees including the price at which electricity shall be procured from the generating companies or licensees or from other sources through agreements for purchase of power for distribution and supply within the State; (c) facilitate intra-State transmission and wheeling of electricity; (d) issue licences to persons seeking to act as transmission licensees, distribution licensees and electricity traders with respect to their operations within the State; (e) promote cogeneration and generation of electricity from renewable sources of energy by providing suitable measures for connectivity with the grid and sale of electricity to any person, and also specify, for purchase of electricity from such sources, a percentage of the total consumption of electricity in the area of a distribution licensee; (f) adjudicate upon the disputes between the licensees and generating companies and to refer any dispute for arbitration; (g) levy fee for the purposes of this Act; (h) specify State Grid Code consistent with the Grid Code specified und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and shown capacity in, dealing with problems relating to engineering, law, economics, commerce, finance or management. Sub-section (2) of both Sections 77 and Section 84 are similar except for the person to be appointed. Thus, irrespective of the provisions in Sub-section (1) of Section 84 stipulating the fields from which the Members will have to be appointed, Sub-section (2) begins with a 'notwithstanding' Clause stating that the State Government may appoint any person as the Chairperson from amongst those, who have been, or is a Judge of the High Court. The proviso to Sub-section (2) stipulates that no appointment Under Sub-section (2) shall be made except after consultation with the Chief Justice of that High Court. This, in fact, recognizes the pre-eminence and requirement of consultation with the Chief Justice of the High Court in case of appointment of a Judge as the Chairperson of a State Commission. For the Central Commission, the consultation is with the Chief Justice of India, because the appointment envisaged is of a Judge of the Supreme Court or the Chief Justice of a High Court. 13. The Selection Committee Under Section 85 of the said Act for selecting Me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ously, there was no need to read it as shall . Learned Attorney General sought to emphasise that the functions of both the Commissions are more technical in nature and really do not have much of an adjudicatory element requiring a legal mind. This is apart from the fact that it is not as if a non-lawyer or non-Judge is incapable of appreciating a legal point, as even arbitrators are appointed from these fields when the dispute is more technical in character. The primary function is determination of tariff, regulating electricity purchase and procurement process of distribution licensees, facilitating intra-State transmission, issuance of license, promotion of cogeneration and generation of electricity from renewable sources of energy, levying fee, etc. Out of the 11 functions enlisted of a State Commission Under Section 86 of the said Act and for the Central Commission Under Section 79 of the said Act, adjudication of disputes between licensees and generating companies and to refer any dispute for arbitration is the only one, which can be said to have any adjudicatory flavor. In fact, the argument advanced was that the nature of work would not be something which the Judges would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y functions generally ought not to be conducted by the State Commission in the absence of a judicial member, especially in relation to disputes which are not fairly relative to tariff fixation or the advisory and recommendatory functions of the State Commission. In the said context, a reference was also made to the Constitution Bench judgment of this Court in Kihoto Hollohan v. Zachillhu 1992 Supp (2) SCC 651 which examined the nature of the power of the Speaker or the chairman under Para 6(1) of the Tenth Schedule of the Constitution of India. The finding recorded is that the State Commission in deciding a lis relating to the generating company was discharging judicial functions and exercising the judicial powers of a far reaching effect and must therefore have the essential 'trappings of the Court' for which it was said ....This can only be achieved by the presence of one or more judicial members in the State Commission which is called upon to decide complicated contractual or civil issues which would normally have been decided by a civil court... It was also observed that the decisions of the State Commission had far reaching consequences and were final and binding bet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emphasized that the nature of functions of a Commission under the said Act cannot be equated to the functions being performed by a Tribunal under the Prevention of Money Laundering Act, 2002, an adjudicatory function. The observations were made in the context of tribunals being created, which were seeking to exercise functions earlier performed by regular judicial forums. The functions, now vested with the Appropriate Commission under the said Act, were really being performed under the Electricity Regulatory Commission Act. 21. The aforesaid judicial pronouncements, it was, thus, canvassed, could not have been utilized by the Gujarat High Court to come to a conclusion that the post of the Chairperson of the State Commission mandatorily has to be occupied by a Judge, though it could be occupied by a Judge. 22. We may, however, note that the view adopted by the Gujarat High Court is also based on the nature of powers vested with the Appropriate Commission Under Sections 94, 95 96 of the said Act, which are as under: 94. Powers of Appropriate Commission.- (1) The Appropriate Commission shall, for the purposes of any inquiry or proceedings under this Act, have the same power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior Advocate appearing for the State of Tamil Nadu pleaded that the whole scheme of the said Act ought to be taken into consideration and that disproportionate importance was being given to Sub-section (2) of Section 84 for appointment of a Judge as a Chairperson, not realizing the variety of functions performed by the Commission, of which the adjudicatory functions were only a small percentage. C.A. No. 14697/2015 (plea of the Gujarat State Regulatory Commission): 25. Mr. Jayant Bhushan, learned Senior Advocate appearing for the Gujarat State Electricity Regulatory Commission, sought to pose a question, i.e., where does the judgment in Tamil Nadu Generation and Distribution Corporation Limited [supra] make it mandatory for a Judge to be the Chairperson? The very wordings were said to be recommendatory in character, which had already been read out by the learned Attorney General. In the alternative, it was pleaded that the observations made were really obiter dicta, as the issue of appointment of the Chairperson of the State Commission was not the lis before the Court in that matter. 26. He then posed a question: - when the Act and the judgment does not make the appointmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the powers of judicial review which were vested in a judicial forum was sought to be transferred. The importance of judicial review and its sanctity was maintained by the composition of the Appellate Tribunal, which would hear appeals from the orders of the Commission. The functions of the Commission were canvassed to be one of technical nature largely, and thus, would not require a Judge to head the Commission. In the alternative, it was stated that, at best, the requirement of a mandatory legal Member may be read into the provisions, though the explicit terms of the statute do not say so. 28. Learned Counsel took us through the provisions of Section 85 of the said Act to contend that the reference to the Chairperson under Sub-sections (2), (3), (5) (6) of Section 85 would be made otiose, as in that eventuality, the Selection Committee would never be called upon to appoint a Chairperson. A Judge could be appointed as the Chairperson only through the alternative route of Section 84(2) read with the proviso thereto. 29. Learned Counsel also referred to Tamil Nadu Generation and Distribution Corporation Limited[supra], more specifically to para 25, which recorded the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is no requirement that an arbitrator should be a judicial person. A submission was also made that the data collected in respect of the functioning of the Gujarat State Commission showed that the adjudicatory functions were not more than 10 per cent. A large number of functions were of tariff fixation, which was over 30 per cent, while the regulatory functions were 59 per cent and grant of licenses were a fraction of a percentage. 32. The emphasis on the reading of the judgment in Union of India v. Madras Bar Association[supra] (MJ-I), it was contended, is on the shifting of the adjudicatory functions from the High Courts to the Tribunals but when, as in the present case, the State Commission has not replaced the functioning of the High Court, the same would have no application. For example, the Electricity (Supply) Act, 1948, dealt with the issue of reference to arbitration in Section 76(2) of that Act. There was no question of any judicial mind. The Electricity Regulatory Commission Act, 1998 provided for an appeal to the High Court in certain cases from the order of the State Commission. Therefore, the appellate authority constituted as a replacement for the appeal before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said Act is an enabling provision and not a mandatory provision. iii. The observations in Tamil Nadu Generation and Distribution Corporation Limited[supra], if read to give a binding direction for the Chairman being a Judge, would then be obiter as that was not the issue before the Court. iv. The necessary and mandatory requirement of having a Judge to head a Tribunal is only where the shifting of the adjudicatory function from the High Court to the Tribunals are envisaged. 35. Now turning to the other point of view and the various entities, which canvassed for the Chairperson to be mandatorily a Judge of the High Court: Stand of Interveners (National Solar Energy Federation of India) in Civil Appeal No. 13451/2015: 36. Mr. Sajan Poovayya, Senior Advocate appearing for the aforesaid entity sought to support the Gujarat line of reasoning and submitted that there should be, at least, one judicial Member in the Commission, who should be the Chairman. He seeks to support this view by reason of the nature of powers vested in the Chairman of the Commission and has referred to Section 92, which reads as under: 92. Proceedings of Appropriate Commission.- (1) The Appropr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations, which relate to the ground situation where the adjudicatory functions of the Court are shifted to the Tribunal. 39. He also contended that para 59 of the Tamil Nadu Generation and Distribution Corporation Limited[supra] only records the submission of the then counsel for the Appellant while the ratio is contained in para 60. The ratio speaks of the enabling character of Section 84(2) of the said Act to appoint a Judge and in that eventuality the appointment is to be made after the consultation with the Chief Justice of the High Court. In this context, he submitted that the ratio of a judgment is something that has to be culled out on certain established principles and not from every line of every observation. In this context he referred to the judgment in Natural Resources Allocation In re Special Reference No. 1 of 2012 (2012) 10 SCC 1. Article 141 of the Constitution laid down that law declared by the Supreme Court is binding upon all Courts within the territory of India and, thus, it was held that law declared has to be construed as a principle of law that emanates from a judgment or an interpretation of a law or judgment by the Supreme Court, upon which, the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cing the regulating body from the Government. 43. Learned Senior Counsel referred to the Electricity Regulatory Commission Act, 1998 to submit that Section 17 of that Act was the earlier avatar of Section 84 of the said Act, while Section 18 of that Act was the earlier avatar of Section 85 of the said Act. A reference was also made to The Petroleum and Natural Gas Regulatory Board Act, 2006, more specifically to Section 3(3) of that Act. The tariff regulatory functions are determined as per Section 62 and 64 of the said Act. On the prevalent provisions under different Acts, it was submitted that the constitution of the Competition Commission of India came to be examined in Brahm Dutt v. Union of India (2005) 2 SCC 431. The argument was similar, i.e., the functions of the Commission being more of a judicial body having adjudicatory powers, the right to appoint a judicial member of the commission should rest with the Chief Justice of India or his nominee and further the Chairman of the commission necessarily has to be a retired Chief Justice or Judge of the Supreme Court or the High Court. The contention was that the Chairman of the Commission had to be a person connected with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or past connection with the special area in question directly. This was more so as apart from Section 86(1)(f), it was submitted that Section 33(4) deals with compliance of directions, if any dispute arises with reference to the quality of electricity or safe, secure and integrated operation of the State grid and Section 9(2) proviso, which is in reference to construction of a captive generating plant and the maintenance and operation of the same being entitled to open access for the purpose of carrying the electricity from the captive generating plant to the destination of its use, with the proviso making such open access subject to availability of adequate transmission facility to be determined by the Central Transmission Utility or the State Transmission Utility. As per the second proviso, any dispute regarding the availability of transmission facility has to be referred to the Appropriate Commission for adjudication. It is submitted that these are two examples clearly requiring an adjudicatory bend of mind. T.C.(C) No. 139/2015 46. This petition has been filed by a Senior Advocate of the Madras high Court against the exercise of suo moto power by the Commission in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the garb of the same, the appointment of Respondent Nos. 6 7 is now sought to be assailed on the ground that the said two persons could not be really categorized as not having any financial or other interest, which is likely to prejudice their functioning as Chairperson and Member in terms of Section 85(5) of the said Act. The two companies TANGEDCO and TANTRANSCO were established for power generation and transmission of power respectively by restructuring the Tamil Nadu Electricity Board in compliance of Section 131 of the said Act and are State owned companies. 52. The original Petitioner seeks to impute bias against these two persons because of the post they have held. Learned Counsel appearing on behalf of the Petitioner referred to the judgment of this Court in Rajesh Awasthi v. Nand Lal Jaiswal (2013) 1 SCC 501 wherein in the process of assailing an appointment to the Commission, Section 85(5) was analysed. It was observed that the power under the said Sub-section (5) was to be exercised by the Selection Committee and not by the Government. Thus, whether the persons named by the panel have any financial or other interest, which is likely to affect their functioning as Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 55. Insofar as IA Nos. 3 4/2016, filed by CLP Wind Farms Private Limited, seeking intervention in T.C.(C) No. 137/2015, are concerned, the prayer for intervention is made on the ground that the Court issues appropriate directions to the Tamil Nadu Electricity Regulatory Commission for time bound hearing and expeditious adjudication of the applicant's petitions, being DRP Nos. 62/2014 63/2014. The Court finds no merit in the applications, as the prayers made in the applications are outside the lis being adjudicated by the Court. The same are accordingly disposed of. T.P.(C) No. 974/2016 56. This Transfer Petition arises from the Delhi High Court. Ms. Sujatha Balachander on behalf of the original Petitioner before the High Court sought to plead that the word may should be read as shall keeping in mind the intent of the legislature (Bachahan Devi Anr. v. Nagar Nigam, Gorakhpur and Anr. (2008) 12 SCC 372). Normally, it was observed, may is an enabling or discretional while shall is obligatory the connotation is not inelastic or inviolate. Thus, where to interpret the word may as directory would render the very object of the Act as nugatory, the word may mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sharma[supra] but then we may note that the principle advanced is based on a non-adjudicatory function. Learned AG also referred to Part XI dealing with the Appellate Tribunal where Under Section 111(6), the Appellate tribunal can call for records of proceedings and make orders and can act even on its own motion. The provision reads as under: 111. Appeal to Appellate Tribunal.- xxxx xxxx xxxx xxxx xxxx (6) The Appellate Tribunal may, for the purpose of examining the legality, propriety or correctness of any order made by the adjudicating officer or the Appropriate Commission under this Act, as the case may be, in relation to any proceeding, on its own motion or otherwise, call for the records of such proceedings and make such order in the case as it thinks fit. 61. Not only that, Under Section 121, orders, instructions or directions can be made by the Tribunal to the Appropriate Commission for the purpose of performance of its statutory functions under the Act. The provision reads as under: 121. Power of Appellate Tribunal.- The Appellate Tribunal may, after hearing the Appropriate Commission or other interested party, if any, from time to time, issue such orders, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The answer to this question was given by the Commission by opining that the State Commission must initiate suo moto proceedings for tariff determination in accordance with Section 64 of the Act read with Clause 8.1 (7) of the tariff policy in the event of the delay in filing of the ARR, truing-up and annual performance review one month beyond the scheduled date of submission of the petition. 66. Learned Senior Advocate, turning to the provisions of Section 84(2) of the said Act sought to emphasise that the same was a notwithstanding Clause as is apparent from its bare reading and it clearly states notwithstanding anything contained in Sub-section (1) . Thus, it does not take away what is stated in Sub-section (1). Learned Counsel relied upon the Constitution Bench judgment of this Court in The Dominion of India and Anr. v. Shrinbai A. Irani and Anr. (1955) 1 SCR 206 for the proposition as to how a non-obstante Clause should be dealt with. It was observed that While recognizing the force of this argument it is however necessary to observe that although ordinarily there should be a close approximation between the non obstante Clause and the operative part of the section, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudicatory functions under Chapter V, more specifically, in Section 24. Thus, it is not as if a non-Judge cannot carry out any adjudicatory functions. 71. He also sought to emphasise the merit of the Chairperson of the Gujarat Commission, who has a Master of Business Management in Finance, Bachelor of Engineering (Electrical), has gone through a software course, and a regulatory course on economic Regulations from eminent universities and has total experience of 37 years in the power sector. This includes more than 19 years' experience in electricity Regulation and is fully conversant with electricity laws and related issues. 72. Learned Senior Advocate sought to assail the impugned order of the Gujarat High Court based on the Rule of purposive construction and contended that this principle cannot be utilized to hold something as different from what the legislature has expressed in clear words. Our View: Section 84(2) of the said Act: 73. The controversy in question would have to be dealt with at two plains. The first, is as to how the statute itself has to be read insofar as the appointment of the Chairperson of the tribunal is concerned. The second is, having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proviso that such an appointment would have to be made in consultation with the Chief Justice of that High Court. 76. The proviso only respects and maintains the accepted position that in appointment of persons, who have been holding such senior judicial office, consultation with the judicial head, being the Chief Justice, should be mandatory. The question which thus arises, is whether Sub-section (2) of Section 84 is facilitative in character for the purposes of appointment of a retired or current Judge of the High Court as a Chairperson, or is the said provision mandatory in character. Both the golden Rule and the literal Rule of statutory construction are well established that a statute must be read as it is framed by the legislature. It is not the function of the Court to supplant or read into the statute something which is not provided. This is not to say that there have not been judicial views taken qua the interchangeability of the expression may' and shall in certain provisions. Thus, the use of the word shall raises a presumption that a particular provision is imperative. However, it has been construed as merely directory in certain cases if the context or int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory. [ Howard v. Bodington (1877) 2 P.D. 203, at p. 211.] 79. If we turn back to the provisions of Section 84 of the said Act, we find that the expression shall is used in Sub-section (1) both in the context of the requirement of ability, integrity and standing as also in the context of adequate knowledge and capacity in dealing with problems relating to engineering, finance, commerce, economics, law or management. On the other hand, in Sub-section (2) while dealing with the possibility of appointment of a Chairperson from the pool of sitting or retired Judges, the expression used is may indicating it to be a discretionary power. 80. We are, thus, inclined to accept the line of reasoning advanced by the learned Counsel led by the learned Attorney General that the plain reading of the Section leaves no manner of doubt that the legislature only envisaged a possibility of appointment of a Chairperson from the pool of sitting or retired Judges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kes place. Secondly, looked at from the perspective of the position prevailing prior to the said Act coming into force, the nature of functions sought to be performed by the State Commission, were to be so performed, not by person, who necessarily held a judicial office. The observations, thus, made in the context of the tribunalisation of judicial process and the requirement of it to be headed by a Judge have to be read in the context of shifting of the adjudicatory role from the Courts to the Tribunals. 84. There are undoubtedly certain powers vested in the Commission Under Sections 94, 95 96 of the said Act, which weighed with the Gujarat High Court while taking a contrary view inasmuch as they seek to give the 'trappings of a court' to the Commission, but that aspect we will examine in the latter part of the judgment, i.e., if there are certain judicial functions to be performed by the Commission, what then should be the nature of composition of the Commission. 85. Mr. Jayant Bhushan, learned senior Counsel also rightly emphasized that were it to be presumed that the Chairperson had to be mandatorily a Judge, the process of appointment would have to be in term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are, thus, unequivocally of the view that Section 84(2) of the said Act only gives the discretionary option to the State Government to appoint a Judge as the Chairperson of the State Commission. The said provision therefore, is not mandatory in nature. Composition of the State Commission: 88. Our conclusion aforesaid on the appointment of a Chairperson, necessitates a discussion on the composition of the State Commission as a whole. This is so in the context of Section 84(1) of the said Act. In terms of Section 82(4) of the said Act, the State Commission is to consist of not more than three members including the Chairperson. In other words, there have to be two other members other than the Chairperson. Now if the Chairperson is not a Judge, the question arises whether any of the other two members has to be a person from the legal field considering the nature of functions performed by the State Commission. Section 84(1) of the said Act prescribes the requirement of knowledge and shown capacity in dealing with problems relating to six different fields, i.e., engineering, finance, commerce, economics, law or management. If the Chairperson is from a non-legal field, it would impl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Commission or the State Commission or the Joint Commission. The relevant definition Clause is as under: 2. Definitions.- In this Act, unless the context otherwise requires,- .... .... .... .... .... 4. Appropriate Commission means the Central Regulatory Commission referred to in Sub-section (1) of Section 76 or the State Regulatory Commission referred to in Section 82 or the Joint Commission referred to in Section 83, as the case may be; The powers conferred under these Sections are, thus, undisputedly exercisable by the State Commission. 93. A perusal of these provisions would show that apart from their definition, even otherwise, these are powers of a civil court under the Code of Civil Procedure, 1908 (hereinafter referred to as the 'said Code'). Powers such as summoning, enforcement of attendance of any person and examination on oath, discovery and production of documents, receiving affidavit of evidence, requisitioning of public records, etc., all form part of Section 94. In terms of Section 95, all such proceedings before the State Commission would be deemed to be judicial proceedings within the meaning of Sections 193 and 228 of the Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re buttressed in our conclusion by judicial pronouncements dealing with the expression The trappings of the court . The expression trappings of the court initially found mention in a judgment of the Judicial Committee of The Privy Council in Shell Co. of Australia, Limited v. Federal Commissioner of Taxation (1931) AC 275. It was observed by Lord Chancellor Sankey that there are tribunals with many of the trappings of a court but are not courts in the strict sense of exercising judicial power. In Bharat Bank Ltd. v. Employees of the Bharat Bank Ltd. AIR 1950 SC 188, while dealing with the Industrial Tribunal, it was observed that the said Tribunal has powers vested in a civil court under the said Code while trying a suit, discovery of documents, inspecting, granting adjournment, reception of evidence on affidavit, enforcing attendance of witnesses, etc. The observations in R. v. London County Council (1931) 2 KB 215, of Saville, L.J. giving a meaning to the word court or judicial authority was cited with approval. Saville, L.J. observed as under: It is not necessary that it should be a Court in the sense that this Court is a Court, it is enough if it is exercising, afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Cement Companies Ltd. v. P.N. Sharma (1965) 2 SCR 366; Sarojini Ramaswami v. Union of India (1992) 4 SCC 506 and State of Gujarat v. Gujarat Revenue Tribunal Bar Association (2012) 10 SCC 353 followed the aforesaid views in the same breath. 99. Once we find that the tribunal has the trappings of the court in respect of its functions, we turn to the effect of the same. 100. The judgment of this Court in Tamil Nadu Generation and Distribution Corporation Limited[supra] would first have to be dealt with at some length, as it deals with the provisions of the very Act. Of course, the context was, inter alia, in respect of the interpretation of Section 86(1) of the said Act. The Bench took note of the Gujarat Urja Vikas Nigam Ltd. [supra] (GJ-I) on account of the observations made in that judgment, that the State Commission can adjudicate all the disputes, including the dispute on money claims between the licensees and the generating companies. The then counsel for the Appellant sought to canvas that the exercise of such judicial powers should be either by a civil court or a tribunal having, at least, one judicial member, as the absence of a judicial member would be an anathema t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iginal proposition may be, the case is not a precedent for that proposition, but if the answer be negative the case is a precedent for the original proposition and possibly for other propositions also. [ Eugene Wambaugh, The Study of Cases (Boston: Little, Brown, Co., 1892) at pg.17] 103. In order to test whether a particular proposition of law is to be treated as the ratio decidendi of the case, the proposition is to be inversed, i.e., to remove from the text of the judgment as if it did not exist. If the conclusion of the case would still have been the same even without examining the proposition, then it cannot be regarded as the ratio decidendi of the case. This test has been followed to imply that the ratio decidendi is what is absolutely necessary for the decision of the case. In order that an opinion may have the weight of a at pg. 17 precedent , according to John Chipman Grey [Another distinguished jurist who served as a Professor of Law at The Harvard Law School] , it must be an opinion, the formation of which, is necessary for the decision of a particular case. 104. Now applying the test to the aforesaid judgment, the proposition is reversed, i.e., the Chai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he basic structure of the Constitution was, thus, answered in the affirmative. 107. We are, thus, of the view that it is mandatory to have a person of law, as a member of the State Commission. When we say so, it does not imply that any person from the field of law can be picked up. It has to be a person, who is, or has been holding a judicial office or is a person possessing professional qualifications with substantial experience in the practice of law, who has the requisite qualifications to have been appointed as a Judge of the High Court or a District Judge. 108. In Brahm Dutt v. Union of India[supra], it has been observed that if there are advisory and regulatory functions as well as adjudicatory functions to be performed, it may be appropriate to create two separate bodies for the same. That is, however, an aspect, which is in the wisdom of the legislature and that course is certainly open for the future if the legislature deems it so. However, at present there is a single Commission, which inter alia performs adjudicatory functions and, thus, the presence of a man of law as a member is a necessity in order to sustain the provision, as otherwise, it would fall foul of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Selection Committee was presided over by a retired Judge of the High Court. 113. We, thus, find no merit in the plea sought to be advanced assailing either the appointment or the suo moto tariff revision. Conclusion: 114. In view of our observations above, we conclude as under: i. Section 84(2) of the said Act is only an enabling provision to appoint a High Court Judge as a Chairperson of the State Commission of the said Act and it is not mandatory to do so. ii. It is mandatory that there should be a person of law as a Member of the Commission, which requires a person, who is, or has been holding a judicial office or is a person possessing professional qualifications with substantial experience in the practice of law, who has the requisite qualifications to have been appointed as a Judge of the High Court or a District Judge. iii. That in any adjudicatory function of the State Commission, it is mandatory for a member having the aforesaid legal expertise to be a member of the Bench. iv. The challenge to the appointment of the Chairman and Member of the Tamil Nadu State Commission is rejected as also the suo moto proceedings carried out by the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X
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