PTC INDIA LTD Vs. CENTRAL ELECTRICITY REGULATORY COMMISSION

JUDGEMENT

(1.) In these appeals and special leave petition, challenge in each case is to the order passed by the Appellate Tribunal for Electricity (in short the Tribunal). Challenge before the Tribunal was to the order/decision dated 23.1.2006 of the Central Electricity Regulatory Commission (in short the CERC) and the Central Electricity Regulatory Commission (Fixation of Trading Margin) Regulations, 2006 (in short the Regulations) published in the Gazette of India on 27.1.2006. The Tribunal by the impugned judgment held that it has no jurisdiction to deal with the matter. For this purpose the Tribunal placed reliance on a three-Judge Bench decision of this Court in West Bengal Electricity Regulatory Commission vs. CESC Ltd. (2002) 8 SCC 715 The conclusion in the said decision was to the effect that the High Court sitting as an Appellate Court under Section 27 of the Electricity Regulatory Commission Act, 1998 (in short 1998 Act) has no jurisdiction to go into the validity of the Regulations. It was ultimately held that there is weighty authority for the proposition that a Tribunal which is a creature of the statute cannot question the vires of the provisions under which it functions.

(2.) Questioning correctness of the said view the present appeals have been filed. It has been contended that the decision in West Bengal Electricity case (supra) has no application to the present case. The Regulations have been framed under Section 178 of the Electricity Act, 2003 (in short 2003 Act). It is pointed out that there is conceptual difference between the provisions which have relevance, as contained in 1998 Act and 2003 Act. Section 121 of 2003 Act gives ample power to the Tribunal to deal with the matter. The fixation of tariff is conceptually and contextually different from fixation of trading margin. With reference to Sections 61 and 62 of 2003 Act it is pointed out that the former relates to "tariff regulations" and later relates to "determination" of tariff.

(3.) Therefore, there is no question of dealing with trading margin. Section 66 deals with the issue of development of market including trading. Section 79 deals with functioning of CERC. Section 111 deals with appellate Tribunal. Section 121 confers supervisory powers on the Tribunal of statutory functions. Section 121 has power to issue orders, instructions and directions. It is not only in a sense revisional but also supervisory in character. Its jurisdiction encompasses all aspects relating to statutory functions under the Act. Section 79(1)(j) deals with fixation of trading margin. It is the stand of the appellants that this can be done by an order and not by a Regulation. With reference to Section 178(2)(y) it is submitted that power is given to prescribe the manner by which development of market in power sector including trading can be prescribed. Said provision has to be read along with Sections 60, 61 and 62. There is significantly no reference to Section 79.