IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 424 of 2005 Uttaranchal Power Corporation Ltd. … Appellant Vs Tehri Hydro Development Corporation … Respondent Sri Alok Singh, learned Senior Advocate assisted by Ms. Mamta Joshi, advocate for the appellant Sri U.K. Uniyal, learned Senior Advocate assisted by Sri Shobhit Saharia, advocate for the respondent Hon’ble B.C. Kandpal, J. This appeal under Section 37 of the Arbitration and Concilliation Act, 1996 (hereinafter referred as ‘Act’) has been filed by the Uttaranchal Power Corporation Ltd. against the order dated 13.07.2005 passed by District Judge, Tehri Garhwal, New Tehri in Misc. Case No. 26 of 2005, Tehri Hydro Development Corporation Ltd. Vs Uttaranchal Power Corporation Ltd. & another. 2. Brief facts of the case are that an application under Section 9 of the Act was filed by the Tehri Hydro Development Corporation (hereinafter referred as ‘Corporation’) alleging therein that the Corporation is constructing a dam known as ‘Tehri Dam’ which is a National Project. This Project was started in the year 1970 and the Corporation came into existence in the year 1988. Before the creation of the Uttaranchal State, the Distribution of the Electricity was to be looked after by the Uttar Pradesh State Electricity Board and on 03.07.2002, there was an agreement between the applicant/Corporation and the Uttaranchal Power Corporation for distribution of the electricity. According to the case of the applicant, the electricity was supplied through RTS-2 and the bills were also supplied accordingly. On 25.05.2005, the Corporation intimated the applicant that the additional charge of 25% would also be realized, on supply of the electricity w.e.f. 2 01.01.2002 and in case, if the additional charge of 25% is not paid by the Corporation, the supply of the electricity would be disconnected. The Corporation, therefore, by way of this application under Section 9 of the Act has prayed that the Uttaranchal Power Corporation be restrained from realizing 25% of additional charge and also from disconnecting the electricity supply. 3. The application of the Corporation was objected by the Uttaranchal Power Corporation with the pleadings that the Electricity Regulatory Commission, Uttaranchal vide order dated 01.01.2002 issued the tariff rate for RTS-7 which is at present RTS-8. The Regulatory Commission also directed that the additional charge of 25% is to be paid by the Corporation. It has also been pleaded that the matter pertains to increase of the tariff and the Corporation is bound to pay the increased rate of tariff. It has also been pleaded that the order has been passed under Section 126(4) of the Indian Electricity Act, 2003 and in case, if the Corporation had any objections against realization of 25% additional charge then he could have filed the appeal before the Regulatory Commission. 4. The court below after hearing learned counsel for the parties and perusing the material available on record allowed the application and directed the Uttaranchal Power Corporation not to realize the additional charge of 25% and also not to disconnect electricity supply of existing electricity connection of the Corporation vide order dated 13.07.2008. 5. Feeling aggrieved by the aforesaid order, the Uttaranchal Power Corporation has filed this appeal before this Court. 3 6. Heard Sri Alok Singh, learned Senior Advocate assisted by Ms. Mamta Joshi, learned counsel for the appellant, Sri U.K. Uniyal, learned Senior Advocate assisted by Sri Shobhit Saharia, learned counsel for the respondent and perused the record. 7. Learned counsel for the respondent has invited my attention towards paragraph 19 of the agreement executed between Uttaranchal Power Corporation and Tehri Hydro Development Corporation on 03.07.2002, which reads as under:- “19. All disputes and differences arising between the Supplier and the Consumer (the settlement or adjustment of which is not hereinabove provided for) as to the interpretation or construction of any of the provision of this agreement of the rights and obligations of the respective parties hereto or as to any other matter or thing concerning or arising out of this agreement, shall be referred to a single arbitrators if the parties agree upon one, otherwise to two arbitrators one to be appointed by the Supplier and one by the Consumer which arbitrators shall appoint an Umpire beforeintering upon the reference and the decision of the sole arbitrator or the arbitrators or the Umpire as the case may be shall be final and binding on the parties and this clause shall in all respects be deemed and construed is an arbitration agreement within the meaning of the Indian Arbitration Act, 1940 and the provisions of the said Act or any statute or modification or re-enactment thereof for the time being in force shall apply to such reference.” 8. Learned counsel for the respondent has submitted that in view of the aforesaid paragraph 19 in the agreement, 4 the matter should be referred to the arbitrator and the court should not exercise its discretion to withhold the matter with the arbitrator and deal with it themselves. Learned counsel for the respondent has also cited a decision of Hon’ble Apex Court in The Empire Jute Co. Ltd. & others Vs The Jute Corporation of India Ltd. reported in JT 2007 (12) SC391 in support of his submission. 9. It is true that the agreement was executed between the parties on 03.07.2002 and in view of the paragraph – 19 of the agreement, the dispute has to be referred to arbitrator but it is worthy to mention here that in the year 2003, the Electricity Act came into force and in view of the provision of Section 185 of the Electricity Act, 2003, the agreement executed between the parties will not have any force. The relevant portion of Section 185 of the Electricity Act, 2003 is quoted below:- “185 Repeal and Saving (1) …. (2) Notwithstanding such repeal- (a) anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmation or declaration made or any licence, permission authorization or exemption granted or any document or instrument executed or any direction given under the repealed laws shall, in so far as it is not inconsistent with the provision of this Act, be deemed to have been done or taken under the corresponding provision of this Act. (b) ….. (c) ….. (d) ….. 5 (e) …..” 10. It is thus quite clear that after the enforcement of Indian Electricity Act, 2003, the agreement which was executed before the enforcement of the Act, 2003 will have no force at all. 11. Further in view of the Section 63 of the Indian Electricity Act, the Electricity Regulatory Commission is authorized to determine the tariff in accordance with the provision of the Act 2003. Further Section 111 of the Electricity Act, 2003 provides that any person aggrieved by an order made by an adjudicating officer under the Act or an order made by the Appropriate Commission under this Act may prefer an appeal to the Appellate Tribunal for Electricity. Therefore, in view of the aforesaid provision, if there was any grievance with the Corporation, then this Corporation had a remedy to file an appeal before the Appellate Tribunal. Thus the arguments advanced by learned counsel for the respondent bears no force and the ruling cited by him in support of his submission is not applicable to the facts and circumstances of the present case. 12. For the reasons stated above, I am of the view that the impugned order dated 13.07.2005 passed by the District Judge, Tehri Garhwal cannot be said to be tenable in law and is liable to be set aside. 13. Accordingly, the appeal is allowed. The impugned order dated 13.07.2005 passed by the District Judge, Tehri Garhwal is set aside. The Tehri Hydro Development Corporation may file an appeal under Section 111 of the 6 Electricity Act, 2003 before the Appellate Tribunal, if the Corporation has any grievance. (B.C. Kandpal, J.) 19th May, 2008 ASWAL