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MCA/216920/2008 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION-CLARIFICATION OF ORDER No. 2169 of 2008
In
SPECIAL
CIVIL APPLICATION No. 9283 of 2008
=================================================
GUJARAT
ELECTRICITY REGULATORYCOMMISSION - Applicant(s)
Versus
STATE
OF GUJARAT & 2 - Opponent(s)
=================================================
Appearance
:
MR
BD KARIA for Applicant(s) : 1,
MR KB TRIVEDI ADVOCATE GENERAL with
MS SANGEETA VISHEN AGP for Opponent(s) : 1,
MR MIHIR THAKORE with
MR KB PUJARA for Opponent(s) : 2,
MR ND NANAVATI with MR SUDHIR M
MEHTA for Opponent(s) :
3,
=================================================
CORAM
:
HONOURABLE
THE ACTING CHIEF JUSTICE MR. M.S.SHAH
and
HONOURABLE
MR.JUSTICE D.H.WAGHELA
Date
: 05/08/2008
ORAL ORDER
(Per
: HONOURABLE THE ACTING CHIEF JUSTICE MR. M.S.SHAH)
This
is an application for modification of our order dated 31.7.2008 by
which we had given the following directions to the respondent
authorities:-
15. Having
regard to the submissions made by the learned counsel for respondent
No.3, we find that proposal for approval of the increase in tariff
rate is pending with the State Commission since 23rd May,
2008 and the delay in considering the proposal will only be
prejudicial to respondent No.3. In the peculiar facts and
circumstances of the case, particularly when the delay in appointment
of the Chairperson of the State Commission occurred firstly on
account of the delay in appointment of the Selection Committee, and
also considering the fact that the selection Committee itself has not
made any recommendations for the last four months, we direct that:
(i)
the State Government shall appoint Chairperson of the Gujarat
Electricity Regulatory Commission within five weeks from today, and
(ii)
the State Commission shall consider and decide the proposal of
respondent No.3 company, within six weeks from the date of
appointment of the Chairperson.
16. We
clarify that we are not granting any stay against the Scheduled
hearing of the objections by the State Commission, because Regulation
89 provides that no act or proceedings of the Commission shall be
invalidated merely on the ground of existence of any vacancy or
defect in the constitution of the State Commission. Even then the
proposal of respondent No.3 for increase in the tariff rate is going
to have a far reaching effect on the consumers in the State and will
impose additional burden on them running into hundreds of crores of
rupees, and therefore, we direct that the final decision on the
proposal shall be taken by the Commission after appointment of the
Chairperson.
2. Mr
BD Karia, learned counsel for the applicant i.e. Gujarat Electricity
Regulatory Commission submits that the aforesaid directions proceed
on the assumption that the hearing of the objections scheduled to
take place this month can continue and that after the Chairperson of
the State Commission is appointed, the final decision on the proposal
of respondent No.3 company will be taken by the Commission
presided over by the Chairperson within six weeks from his
appointment. However, in view of Regulations 21 and 58(1), the
decision can be taken by only those member(s) / Chairperson who hear
the case or who were present during all the substantial hearings of
the Commission on such matter. If the Chairperson is not appointed
till 7.9.2008, the Chairperson will not be in a position to exercise
his vote on a decision or to pronounce judgment on a matter in
respect of which some hearings had taken place before his
appointment. Mr Karia, therefore, seeks appropriate directions on
behalf of the State Commission. It is submitted that since Regulation
16 provides that quorum for the proceedings before the Commission
shall be two it will be possible for the existing Commission with two
members to proceed with the hearing and to take final decision in the
matter in three months time after the hearing.
3. Mr
KB Trivedi, learned Advocate General for the State and Mr Mihir
Thakore for original respondent No.3 – Company support the above
submission. Mr Thakore further submits that if the proposal of
respondent No.3 is accepted, any delay in hearing the matter will
result into loss of Rs.1.45 crores per day and that in such matters
recovery of money with retrospective effect is generally not resorted
to on account of resistance from the consumers. Mr Thakore has
further submitted that several State Electricity Regulatory
Commissions and even the Central Electricity Regulatory Commission
have been rendering their decisions for granting approval of tariff
in respect of the companies under their jurisdiction through orders
passed by only two members of the respective Commissions. Even where
the Chairperson of the Commission is holding the office, the
remaining two members may and do hear such matters and render their
final decisions. A compilation of such orders of the Central
Electricity Regulatory Commission, New Delhi and Maharashtra
Electricity Regulatory Commission is produced before us. A list of
such orders in different cases decided by the different Commissions
are also produced indicating that such orders were passed by various
Electricity Regulatory Commissions without presence of the
Chairperson.
4. Mr
Nirupam Nanavati, learned counsel for the original petitioner,
however, opposes the application and submits that since it is the
State Government which has been responsible for the delay in making
appointment of the Chairperson, the provisions of law cannot be
permitted to be defeated by non-appointment of the Chairperson for
such a long period and it is insisted that the hearing should take
place after the appointment of the Chairperson.
5. Having
heard the learned counsel for the parties and having regard to the
fact that various Electricity Regulatory Commissions have been
conducting their proceedings only through two members of the
Commission without presence of the Chairperson as permitted by
Regulation 16 and also having regard to Regulations 21 and 58(1),
which provide that the Chairperson and/or member(s) who hear the case
shall pronounce the judgment and that no member shall exercise his
vote on a decision unless he is present during all the substantial
hearings of the Commission on such matter, and also having regard to
the fact that the State Government is now required to reconstitute
the Selection Committee under Section 85(1) of the Act and,
therefore, the appointment of the Chairperson is going to take five
weeks, we modify the directions contained in our order dated
31.7.2008 as under :-
While
the direction requiring the State Government to appoint Chairperson
of the State Electricity Regulatory Commission within five weeks from
31.7.2008 (i.e. by 7.9.2008) shall continue to operate, the State
Commission shall consider and decide the proposal of respondent No.3
Company expeditiously.
It
will be open to the present members of the Commission to proceed with
the hearing of the objections against the proposal of respondent No.3
and pass appropriate orders on the said proposal.
6. The
application accordingly stands disposed of.
(M.S. SHAH, Actg. C.J.)
(D.H. WAGHELA, J.)
zgs/-
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