Case: Chhatisgarh State Electricity Board Vs. Central Electricity Regul.Comm. &amp; Ors

2. Appellant, Chhattisgarh State Electricity Board was established under Section 58 of the M.P. Reorganization Act, 2000. In a sense, it is a successor of Madhya Pradesh Electricity Board insofar as the State of Chhattisgarh is concerned. A dispute arose between the appellant and respondent No.3 - Madhya Pradesh State Electricity Board in the matter of payment of FLEE charges to the beneficiaries in the Western Region under the "Frequency Linked Energy Exchange" scheme, which was introduced with effect from 1.6.1992. The FLEE charges were payable to the beneficiaries on the basis of monthly advises issued by Western Regional Electricity Board (renamed as Western Regional Board Committee) (respondent No.5 herein). The matter was considered by respondent No.1 - Central Electricity Regulatory Commission, which passed an order dated 8.12.2005 fixing the liability of the appellant and respondent No.3 in the matter of payment of FLEE charges.3. The appellant challenged the aforementioned order in Appeal No.21/2006, which was allowed by the Tribunal vide its order dated 14.11.2006. Soon thereafter, respondent No.3 filed IA No.4/2007 for issue of a direction to respondent No.5 to recalculate FLEE charges in accordance with the Tribunals order in relation to post-reorganization period. By order dated 17.5.2007, the Tribunal allowed that application and directed respondent No.5 to recalculate FLEE charges in accordance with order dated 14.11.2006.4. Feeling aggrieved by the last mentioned order of the Tribunal, the appellant filed this appeal on 24.12.2007. Along with the appeal, the appellant filed an application for condonation of 160 days delay. The reasons for not filing appeal within the period of 60 days specified in Section 125 of the Electricity Act, as disclosed in the application are as under:The impugned order had been pronounced by the Tribunal on 17.5.2007 but the counsel for the appellant did not receive intimation of the said pronouncement and as such he was not aware of the same.ii) That the procedure which was being followed by the Tribunal at that time was that the Registry of the Tribunal used to telephonically give advance intimation to the counsel of the parties regarding pronouncement of the order.iii) The appellant came to know about the order in July, 2007 when respondent No.5 sent intimation for payment of FLEE charges to the beneficiaries in the Western Region. Thereupon, the appellant informed its counsel about the impugned order who then sent letter dated 26.7.2007 to the Registrar of the Tribunal that intimation regarding pronouncement of the order had not been given to him (the date has been wrongly typed in paragraph 3 of the application as 26.11.2007).iv) Respondent No.3 had filed a review petition against order dated 14.11.2006, which was not decided by the Tribunal along with I.A. No.4 of 2007 and the same was withdrawn on 25.10.2007.v) Thereafter, the impugned order was considered and discussed by the appellant and after obtaining legal opinion, it was decided to file an appeal.vi) In the light of the decision taken by the appellant, the counsel proceeded to prepare the appeal but some delay was caused due to extensive pleadings and voluminous documents.In the reply filed on behalf of respondent No.3, it has been averred that the impugned order was communicated by the Deputy Registrar of the Tribunal vide his letter dated 11.6.2007; that the appellant and the respondents before the Tribunal were informed by the said letter that the matter was disposed of on 14.5.2007 and the parties may request for a copy of the order in PDF format through e-mail at registrar-aptel@nic.in or apply for a certified copy and further that the order would also be available in the Tribunals website (www.aptel.gov.in). It has been further averred that letter sent by the Deputy Registrar of the Tribunal was received by the appellant on 21.6.2007 which was entered in its receipt register at serial No. 2082 and subsequently, the same was received by the office of the Chief Engineer (Commercial) on 29.6.2007. Respondent No.3 has supported this assertion by placing on record photostat copies of the inward register maintained in the office of Secretary of the appellant, which were made available pursuant to an application filed under the Right to Information Act. Respondent No.3 has then relied upon the appellants assertion that it came to know about order dated 17.5.2007 in July, 2007 and prayed that in the absence of any explanation by the appellant for remaining silent from July, 2007 to December, 2007, the appeal cannot be entertained. As regards the review application, respondent No.3 has averred that the same has no bearing on the appellants grievance against order dated 17.5.2007 and in the absence of any explanation for the delay after 21.6.2007, the appeal should be dismissed as barred by time.

Reasoning:
There is no provision in the Act under which this Court can entertain an appeal filed against the decision or order of the Tribunal after more than 120 days. The object underlying establishment of a special adjudicatory forum i.e., the Tribunal to deal with the grievance of any person who may be aggrieved by an order of an adjudicating officer or by an appropriate commission with a provision for further appeal to this Court and prescription of special limitation for filing appeals under Sections 111 and 125 is to ensure that disputes emanating from the operation and implementation of different provisions of the Electricity Act are expeditiously decided by an expert body and no court, except this Court, may entertain challenge to the decision or order of the Tribunal. The exclusion of the jurisdiction of the civil courts (Section 145) qua an order made by an adjudicating officer is also a pointer in that direction. It is thus evident that the Electricity Act is a special legislation within the meaning of Section 29(2) of the Limitation Act, which lays down that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the one prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and provisions contained in Sections 4 to 24 (inclusive) shall apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application unless they are not expressly excluded by the special or local law.In view of the above discussion, we hold that Section 5 of the Limitation Act cannot be invoked by this Court for entertaining an appeal filed against the decision or order of the Tribunal beyond the period of 120 days specified in Section 125 of the Electricity Act and its proviso. Any interpretation of Section 125 of the Electricity Act which may attract applicability of Section 5 of the Limitation Act read with Section 29(2) thereof will defeat the object of the legislation, namely, to provide special limitation for filing an appeal against the decision or order of the Tribunal and proviso to Section 125 will become nugatory.The issue deserves to be considered from another angle. As mentioned above, Rule 94(2) requires that when the order is reserved, the date of pronouncement shall be notified in the cause list and that shall be a valid notice of pronouncement of the order. The counsel appearing for the parties are supposed to take cognizance of the cause list in which the case is shown for pronouncement. If title of the case and name of the counsel is printed in the cause list, the same will be deemed as a notice regarding pronouncement of order. Once the order is pronounced after being shown in the cause list with the title of the case and name of the counsel, the same will be deemed to have been communicated to the parties and they can obtain copy through e-mail or by filing an application for certified copy.Reverting to the facts of this case, we find that even though the name of the counsel for the appellant was not shown in the cause list of 14.5.2007 i.e., the date on which the impugned order was pronounced by the Tribunal, the factum of pronouncement was conveyed to the parties including the appellant vide letter dated 7.6.2007, which was signed by the Deputy Registrar on 11.6.2007 and they were informed that they can obtain copy through e-mail or make an application for certified copy. Undisputedly, that letter was received in the secretariat of the appellant on 21.6.2007. The appellant had come to know about the impugned order in July 2007 from another source i.e., respondent No.5, which had sent communication for payment of FLEE charges. The communication sent by respondent No.5 was received by the appellant on 17.7.2007. It is, thus, evident that on 21.6.2007 or at least on 17.7.2007, the appellant had come to know through proper channel that the order has been pronounced by the Tribunal in I.A. No.4/2007. It is not clear from the record whether the appellant had applied for certified copy or obtained the one through e-mail, but this much is evident that the appellant did obtain/receive a copy of order dated 17.5.2007. If that was not so, the appellant could not have filed appeal under Section 125 of the Electricity Act. The preparation of appeal, which bears the date 7.9.2007 is a clinching evidence of the fact that the appellant had not only become aware of the order of the Tribunal, but had obtained copy thereof. However, instead of filing appeal within 60 days from the date of receipt of letter dated 7.6.2007 sent by the registry of the Tribunal or the communication sent by respondent No.5, the appellant chose to file appeal only on 24.12.2007 and that too despite the fact that the same was prepared on 7.9.2007. The appellant has not offered any tangible explanation as to why the appeal could not be filed for more than three and half months after its preparation. Thus, there is no escape from the conclusion that the appeal has been filed after more than 120 days from the date of communication of the Tribunals order and, as such, the same cannot be entertained.