State Of Gujarat vs Utility Users Welfare Association ...

5. The Union of India, as also some of the State Commissions are arrayed on the one side to canvas for an interpretation of the provision as it reads, while on the other side, are consumers, activists and some affected parties, who canvassed the importance of the State Regulatory Commissions and the nature of functions it performs, to establish that a Judge alone should preside over these Commissions.

6. We do not see the necessity of going into individual facts nor were the pleas advanced on that basis before us. The submissions have been based on the provisions of the said Act and the legal pronouncements dealing with the issue of the mandatory requirement of certain Commissions to be headed by a judicial mind. The Act:

15. The Appellate Tribunal for Electricity is provided in Part XI of the said Act. Section 111 of the said Act deals with the appeal to Appellate Tribunal from orders made by an adjudicating officer under the said Act, or the Appropriate Commission under the said Act. Section 112 of the said Act deals with the composition of the Appellate Tribunal. The Tribunal sits in Benches with at least one judicial member and one technical member. Section 113 of the said Act provides for qualifications for appointment of Chairperson and Member of the Appellate Tribunal. The Chairperson of the Appellate Tribunal has to be someone, who is, or has been a Judge of the Supreme Court or the Chief Justice of a High Court. Thus, there is no quibble over the proposition that there is a senior judicial mind heading the Appellate Tribunal and that every Bench of the Appellate Tribunal mandatorily has to have at least one judicial member and one technical member.

23. The conclusion in favour of an Appropriate Commission being headed by a Judge in the context of the Commission having the ‘trappings of a Court’ is drawn on the basis of the aforesaid provisions, apart from the provisions relating to the appointment of Members and the Chairperson.

47. This petition filed before the Madras High Court is, once again, by an Advocate, purportedly in public interest. Apart from the fundamental issue raised of a Judge to be appointed as the Chairman of the State Commission, like in the previous Transfer Petition, certain notifications have also been assailed. The Tamil Nadu Government had published a Notification dated 26.9.2013, constituting a three Member Selection Committee for selection of the Members of the State Commission in terms of Section 85 of the said Act. This selection process was required to be completed in three months and had to recommend, at least, two names for the post of Members. The Committee recommended the name of Mr. G. Rajagopal (respondent No.7) on 27.12.2013. This appointment is specifically assailed on the ground that he was still working as Director (Finance), TANGEDCO when his name was recommended by the Selection Committee, and that Mr. Rajagopal opted for voluntary retirement after his name had been recommended by the Selection Committee. The Notification of his appointment was issued on 31.12.2013 whereafter he assumed office on 9.1.2014.

50. On 12.12.2014, the State Commission consisting of these two persons as Member and Chairman and Mr. S. Nagalsamy, passed a tariff order permitting a tariff hike by TANGEDCO by a majority of 2:1 with respondent Nos.6 & 7 concurring on the issue of tariff hike while the third Member (Mr. Nagalsamy) was dissenting. The dissent was on the legality of the suo moto tariff order.

51. We have recited these facts only to bring on focus that the grievance is only with the tariff order, but under the garb of the same, the appointment of respondent Nos.6 & 7 is now sought to be assailed on the ground that the said two persons could not be really categorized Page 42 of 84 as not having any financial or other interest, which is likely to prejudice their functioning as Chairperson and Member in terms of Section 85(5) of the said Act. The two companies TANGEDCO and TANTRANSCO were established for power generation and transmission of power respectively by restructuring the Tamil Nadu Electricity Board in compliance of Section 131 of the said Act and are State owned companies.

111. The challenge laid in TC (C) Nos.139/2015 & 138/2015 is to the appointments made to the Tamil Nadu State Commission and the exercise of the powers suo moto by the Commission. The fundamental Page 80 of 84 plea is of financial bias of the two members as they were working in their erstwhile avatars. The name of Mr. G. Rajagopal was recommended when he was still working as the Director, TANGEDCO and he opted for voluntary retirement after his name had been recommended. Mr. Akshayakumar retired from the post of Managing Director of TANTRANSCO on 31.5.14 and was appointed as Chairman of the Commission on 6.6.14. The tariff hike was approved by a majority of 2:1 with these two members being part of the majority view.

54. There was really no fresh material addressed before us so far as the aforesaid petitions are concerned.

55. Insofar as IA Nos.3 & 4/2016, filed by CLP Wind Farms Private Limited, seeking intervention in T.C.(C) No.137/2015, are concerned, the prayer for intervention is made on the ground that the Court issues appropriate directions to the Tamil Nadu Electricity Regulatory Page 45 of 84 Commission for time bound hearing and expeditious adjudication of the applicant’s petitions, being DRP Nos.62/2014 & 63/2014. The Court finds no merit in the applications, as the prayers made in the applications are outside the lis being adjudicated by the Court. The same are accordingly disposed of.

Composition of the State Commission:

113. We, thus, find no merit in the plea sought to be advanced assailing either the appointment or the suo moto tariff revision. Conclusion:

114. In view of our observations above, we conclude as under:

115. Transfer Petition (C) No.974/2016 is allowed and the Transferred Case arising out of transfer petition stands disposed of. Page 83 of 84

116. The appeals as well as the other transferred cases stand disposed of accordingly leaving the parties to bear their own costs. Pending application(s), if any, also stand(s) disposed of.

April 12, 2018.

Page 84 of 84