THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY Writ Petition No.20872 of 2011 Dated 24th November, 2011 Between: Central Power Distribution Company of Andhra Pradesh Ltd., and others …Petitioners And Andhra Pradesh Electricity Regulatory Commission, rep.by its Secretary, 11-4-660, 4th Floor, Singareni Bhavan, Red Hills, Hyderabad and others …Respondents Counsel for the petitioners: Sri O.Manohar Reddy Counsel for respondent No.1: Sri P.Srinivasa Rao for Sri P.Sriraghu Ram Counsel for respondent No.2: Sri Katragadda Gopal Chowdary for Sri Challa Gunaranjan The Court made the following: ORDER: This writ petition is ﬁled for a mandamus to declare the action of respondent No.1 in entertaining Review Petition No.1 of 2011 and passing order, dated 12.07.2011, in I.A.No.8 of 2011 in R.P.No.1 of 2011 in O.P.No.23 of 2005. I have heard Sri O.Manohar Reddy, learned counsel representing the petitioners, and Sri K.Gopal Chowdary, learned counsel for respondent No.2. The petitioners are the distribution companies functioning under the provisions of the A.P. Electricity Reform Act, 1998 (for short ‘the Reform Act’) and the Electricity Act, 2003 (for short ‘the Act’). Respondent No.2 is a generating company, which holds agreements with the petitioners for supply of power. A dispute between these parties has arisen regarding the alleged liability of respondent No.2 for payment of liquidated damages on the ground that there was delay in commercial operation date (COD). The petitioners have approached respondent No.1 with a common application claiming liquidated damages which was registered as O.P.No.23 of 2005. The said OP was dismissed by respondent No.1-Commission on 13.06.2011 on the ground that the claim is barred by limitation. However, having rendered the said ﬁnding, respondent No.1 went on assessing the damages and a demand for Rs.90 crore was raised on 23.06.2011 against respondent No.2 towards liquidated damages as assessed by respondent No.1. Out of the said amount, a sum of Rs.63 crore was adjusted from out of the bills payable to respondent No.2. At that stage, respondent No.2 has ﬁled a review petition for recalling that portion of the order by which liquidated damages have been assessed. The said review petition was entertained and registered as R.P.No.1 of 2011 by respondent No.1. In the review petition, respondent No.2 has also ﬁled I.A.No.8 of 2011 seeking appropriate interim order. The petitioners have resisted the review petition mainly on the ground that as respondent No.1 is functioning only with its Chairman and one Member, and the third Member demitting oﬃce on 15.06.2011, it cannot entertain the review petition. It is, however, the plea of respondent No.2 that as Section 94(1) of the Act has conferred all the powers of civil Court under the CPC in respect of several matters, including review of the decisions of respondent No.1, it is entitled to entertain and adjudicate on the review petition ﬁled by respondent No.2 under Order XLVII Rule 5 of CPC. Respondent No.1, while granting interim order under a detailed order, whereby, while staying recovery of Rs.28.06 crore, referred to the objection of the petitioners on the maintainability of the review petition, observed as under: “In this case, one member of the Commission has demitted the oﬃce by 15.06.2011 before that date i.e., on 13.06.2011 both the members and the Chairman have delivered the order in OP 23/2005. Now, the petitioner has approached this Commission for review of the order passed by the two members and the Chairman, now the bench constituting Member and Chairman. It is well law that both the Chairman and Members constitute quorum and they are competent to hear and dispose of the matters on merits and the orders passed by them are also valid under law. Whether three members are necessary to review the order or not is the matter to be decided in the very review petition itself and not in this interlocutory application. This aspect can be considered elaborately in the main review petition itself.” At the hearing, Sri O.Manohar Reddy, learned counsel for the petitioners, advanced detailed arguments on the plea of the petitioners’ regarding maintainability of the review petition. He conceded that while the order in I.A., passed by respondent No.1 is amenable to the appellate jurisdiction under the Act, since the very power of respondent No.1 to entertain and decide the review petition in the absence of the third Member is questioned, the petitioners have ﬁled the writ petition, instead of ﬁling an appeal. Sri K.Gopal Chowdary, learned counsel for respondent No.2, submitted that in view of Section 185(3) of the Act, under which, the provisions of the Reform Act will continue to apply wherever there is any inconsistency between the provisions of the Reform Act and the Act and in the light of the speciﬁc provision contained in Section 94(1) of the Act, the proviso to Section 9(4) of the Reform Act being inconsistent with the former provision cannot be applied. I have carefully considered the submissions of the learned counsel for the parties and given my earnest thought to the same. This is not a case where the petitioners have pleaded inherent lack of jurisdiction on the part of respondent No.1 in entertaining the review petition. The petitioners raised objection on the power of existing members of the Commission based on the proviso to Section 9(4) of the Reform Act. When this objection is raised, respondent No.1, in the above re-produced para of its order, observed that it will deal with this aspect while deciding the review petition. In my opinion, respondent No.1 is entitled to adjudicate on this contention of the petitioners and there is no legal bar on respondent No.1 for such adjudication, unlike in a case of objection pertaining to inherent lack of jurisdiction raised by a party. Therefore, I do not ﬁnd any reason whatsoever for this Court to entertain the writ petition even before respondent No.1 has decided the issue raised by the petitioners. In the premises as above, the writ petition is dismissed without going into the merits of the case with liberty to the petitioners to pursue the objection raised by them before respondent No.1 on the maintainability of the review petition in the absence of full strength. If the petitioners feel aggrieved by the order passed in I.A.No.8 of 2011, they shall be free to avail the remedy of appeal before the appellate authority under the provisions of the Act. As a sequel to dismissal of the writ petition, interim order, dated 25.07.2011, shall stand vacated and W.P.M.P.No.25365 of 2011 and W.V.M.P.No.3057 of 2011 are disposed of as infructuous. C.V.NAGARJUNA REDDY, J 24th November, 2011 VGB