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2018 (5) TMI 1998
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....ex-Chairperson. Shri Sanjay Sen, Learned Senior Counsel engaged by SKV Lawyers Offices, Advocates and appearing for the Petitioner submitted the following: "Learned senior counsel for the Review Petitioner submitted that the order dated 26.9.2017 in Petition No. 32/MP/2017 was passed by the four member bench of the Commission whereas the present Review Petition is listed before three member bench. Learned senior counsel for the Review Petitioner submitted that he would place on record a write-up on the legal position in this regard within one week. 2. The Commission permitted the learned senior counsel to place the legal position on record by 23.3.2018 to enable the Commission to take a view in the matter. 3. The Commission further directed that the present Review Petition and the other Review Petitions in which the issue of Coram is involved, shall be listed after the Commission decides the legal issue raised by the learned senior counsel." 2. SKV Lawyers Offices, Advocates for the Petitioner have filed an affidavit containing a "Note on quorum for Review Petition". It has been submitted that the correct legal position on quorum for hearing the review....
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....ttlement, Cuttack & Ors. (1998) 7 SCC 162. Further, the Appellate Tribunal for Electricity (Appellate Tribunal) in Review Petition No. 4 of 2017 {Madhya Pradesh Power Management Co. Ltd. vs. M.P. Biomass Energy Developers Association & Ors.} and in Appeal No. 178 of 2016 & batch {Torrent Power Limited and Ors. vs. Gujarat Electricity Regulatory Commission and Ors.} has judiciously adhered to legal position settled in Maharaja Moheshur Sing (supra). (e) The present review petition as listed on 14.3.2018 was being adjudicated by the Commission comprising of only three members whereas the impugned order dated 26.9.2017 passed in Petition No. 32/MP/2017 was adjudicated by the Commission comprising of four Members and therefore, in the light of the aforementioned legal position, it is prudent that the Review Petition is heard by a quorum of equal number of Members who had passed the impugned order dated 26.9.2017. Analysis and Decision 3. The Central Commission was constituted under the Electricity Regulatory Commission Act, 1998 and continued as such under Section 76 of the Act which is extracted as under: "Section 76. (Constitution of Central Commission):- (1) ....
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....of the Members present and voting, and in the event of an equality of votes, the Chairperson or in his absence, the person presiding shall have a second or casting vote. (4) Save as otherwise provided in sub-section (3), every Member shall have one vote. (5) All orders and decisions of the Appropriate Commission shall be authenticated by its Secretary or any other officer of the Commission duly authorized by the Chairperson in this behalf." According to Section 91(1) of the Act, the Commission has to observe such rules of procedure in regard to transaction of business at its meetings (including the quorum at its meetings) as it may specify. The word "specified" has been defined in Section 2(62) of the Act as "specified by regulations made by the Appropriate Commission or the Authority, as the case may be, under the Act." The Commission specified the Central Electricity Regulatory Commission (Conduct of Business) Regulations, 1999 (hereinafter referred to as "CBR") in exercise of powers under Section 55 of the Electricity Regulatory Commission Act, 1998 (Act 14 of 1998) which has since been repealed with the enactment of Electricity Act, 2003 (the Act). However,....
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.... review shall be listed before the Commission within a period of 15 days from the date of filing such application. (4) The Review applications shall be disposed of within 15 days from the date of hearing if the review is not admitted and within a period of two months from the date of admission if the application is admitted; Provided that where the review applications cannot be disposed of within the period as stipulated, the Commission shall record the reasons for the additional time taken for disposal of the review applications. Amendment of orders 103 A. Clerical or arithmetical mistakes in the orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Commission either of its own motion or on the application of any of the parties." 6. From the above provisions of the CBR, it is evident that proceedings before the Commission include proceedings of all nature that the Commission may hold in discharge of its functions under the Act which includes petitions for review of its own decisions, directions and orders. Further, the quorum for the proceedings before the Commission is two which means that ....
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.... any person considering himself aggrieved:- (a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed by this Code, or (c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit." Further, Order 47 under the CPC deals with the procedural aspects of the review. The said order is extracted as under: "ORDER XLVII REVIEW 1. Application for review of judgment:- (1) Any person considering himself aggrieved- (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decr....
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....e same." 9. As per Section 114 of the CPC, an appeal can be preferred against an order or decree where no appeal has been filed, though the appeal is allowed and where no appeal is allowed before the court which passed the decree or made the order and the court may pass such order as it thinks fit. Order 47 Rule 1 contains the basic principle that a person who desires to obtain a review of a judgment or order must apply for review to the same court which passed the said judgment or order on the grounds stated therein. Order 47 Rule 5 is an extension of the same principle. Rule 5 states that where the judge or judges or any one of the judges who passed the decree or made the order, a review of which is applied for, continues or continue to be attached to the court at the time when the application for review is presented, and is not or are not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such judge or judges or any of them shall hear the application, and no other judge or judges of the court shall hear the same. It means that the same judges who passed the original or....
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....d. Vs. GERC & Others and related appeals observed with regard to applicability of Order 47 Rule 5 as under: "47. We are unable to accept this submission. We do not attach any importance to absence of provision akin to Rule 5 of Order XLVII in the said Act or in the GERC Regulations. The Appellants have not contended nor are we inclined to hold that the provisions of CPC are stricto sensu applicable to the State Commission. But we have noted that Section 94(1) of the said Act states that while reviewing its decisions, directions and orders, the Appropriate Commission shall have same powers as are vested in CPC. Even though CPC cannot be held to be stricto sensu applicable to the State Commission, it can act as a guiding light as rightly stated by the State Commission in its affidavit dated 02/08/2016 filed in this Tribunal." According to the above judgment, Order 47 Rule 5 can act as the guiding principle for deciding the issue of quorum with regard to review of its own decisions, directions and orders by the Commission. 12. The general principle as per the CPC is that a review petition must always be heard by the same Court/Bench. However, there are situations in whi....
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....irement or absence from the Court for a period of six months from the date of the application...... 20....... It is only where both Judges are not available (due to the reasons mentioned above) the applications for review will have to be placed before some other Bench as there is no alternative. But when the Judges or at least one of them, who rendered the judgment, continues to be members or member of the court and available to perform normal duties, all efforts should be made to place it before them. The said requirement should not be routinely dispensed with." The Hon'ble Delhi High Court in Rajiv Lochan v. Narender Nath: AIR 2004 Del 48 has also observed as under: "9.....Ideally the application for review should be answered by the Court which passes the decree or order and it is for the reasons that he is considered to be the best judge/person to appreciate, consider and answer the said application, he having himself passed the order or' decree sought to be reviewed. However, once such judge/presiding officer is not available owing to various reasons, viz. transfer, superannuation, death and alike reasons the other competent court is authorized and ....
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....ch exceptions are allowable only ex necessitate. We do say that in all practicable cases the same Judge ought to review...." As per the above judgment, review should be heard by the judge who passed the order and only in cases of necessity arising out of death or some other unexpected or unavoidable causes, review might take place before another and different judge. 16. Hon'ble Supreme Court in State of Orissa and Ors. vs. Commissioner of Land Records & Settlement, Cuttack and Ors. (1998) 7 SCC 162 adverting to the decision of the Privy Council as quoted above observed as under: "29. It is, therefore, clear that the same Judge who disposes of a matter, if available, must "review" the earlier order passed by him inasmuch as he is best suited to remove any mistake or error apparent on the fact of his own order. Again, he alone will be able to remember what was earlier argued before him or what was not argued. In our opinion, the above principle equally applicable in respect of orders of review passed by quasi-judicial authorities." 17. In Ratanlal Nahata & etc. Vs. Nandita Bose & etc. AIR 99 Calcutta 29, Hon'ble High Court of Calcutta examined the scope of O....
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....post of Chairperson was duly filled and, therefore, to carry out the intent and objective of the mandate provided by the said Act, the Chairperson was made part of the proceedings. We find no hesitation in rejecting this submission. When the two members had passed the tariff order were available there was no reason for the Chairperson to join the review proceedings on the specious ground of carrying out the intent of the said Act. This is opposed to basic principle underlying the concept of review. There is no need to assume that the two Members who passed the original order would not be able to appreciate the alleged important issues. In fact, they are best suited to deal with the contentions raised in the review petition and find out whether there is any error apparent on the face of the record." Accordingly, the Hon'ble Tribunal set aside the order of the GERC and remanded the matter in the following terms: "57. In the circumstances, we set aside the impugned orders dated 16/06/2016 and 01/07/2016 passed by the State Commission. We remand the matter to the State Commission. We direct the Members who passed the original tariff order to hear the review petitions af....