TaxTMI 
TaxTMI 
2018 (4) TMI 1945
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....lam, Deep Rao, Sandeep Devashish Das, B. Balaji, Rahul Mehra, Neha Sangwan, Chirag M. Shroff and E.C. Agrawala, Advs. JUDGMENT SANJAY KISHAN KAUL, J. 1. The Electricity Act, 2003 (hereinafter referred to as the 'said Act') provides for Central and State Regulatory Commissions. Insofar as the appointment of the Chairperson of these Commissions is concerned, the relevant provisions stipulate that the Chairperson "may" be a Judge of a High Court for the State Commission, a Judge of the Supreme Court or the Chief Justice of a High Court for the Central Commission. The common question, which arises for consideration in these appeals is whether the expression "may" should be read as "shall", i.e., whether it is mandatory to have a judicial mind presiding over these Commissions in the form of a Judge. 2. The Division Bench of the Madras High Court vide judgment dated 7.2.2014 took the view in respect of the challenge laid to the selection process of the Chairman of the Tamil Nadu State Electricity Commission that there was no such mandatory requirement though there was an option to appoint a Judge. 3. The Division Bench of the Gujarat High Court in a similar case in....
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....es reached unsustainable levels. The Electricity Regulatory Commission Act of 1998 was an endeavour to distance the Government from determination of tariffs by having independent regulatory commissions. 9. Part X of the said Act deals with matters relating to Regulatory Commissions - their constitution, powers and functions, etc. Sections 76 & 77 of the said Act are concerned with the constitution of the Central Commission and the qualifications for appointment of Members of the Central Commission. The provisions are similar to the appointment of the Members and Chairperson of the State Commissions except to the extent that while the relevant Sub-section provides that the Central Government "may" appoint the Chairperson from amongst persons who is, or has been a Judge of the Supreme Court or the Chief Justice of a High Court in the case of the Central Commission, in the case of State Commissions, the provision states that the State Government "may" appoint any person as the Chairperson from amongst persons who is, or has been, a Judge of a High Court. Section 78 of the said Act deals with the constitution of the Selection Committee to recommend Members, while the functions of th....
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....n Committee consisting of - (a) a person who has been a Judge of the High Court.... Chairperson; (b) the Chief Secretary of the concerned State ....Member; (c) the Chairperson of the Authority or the Chairperson of the Central Commission ....... Member: Provided that nothing contained in this Section shall apply to the appointment of a person as the Chairperson who is or has been a Judge of the High Court. (2) The State Government shall, within one month from the date of occurrence of any vacancy by reason of death, resignation or removal of the Chairperson or a Member and six months before the superannuation or end of tenure of the Chairperson or Member, make a reference to the Selection Committee for filling up of the vacancy. (3) The Selection Committee shall finalise the selection of the Chairperson and Members within three months from the date on which the reference is made to it. (4) The Selection Committee shall recommend a panel of two names for every vacancy referred to it. (5) Before recommending any person for appointment as the Chairperson or other Member of the State Commission, the Selection Commi....
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....e State Commission shall advise the State Government on all or any of the following matters, namely: (i) promotion of competition, efficiency and economy in activities of the electricity industry; (ii) promotion of investment in electricity industry; (iii) reorganisation and restructuring of electricity industry in the State; (iv) matters concerning generation, transmission, distribution and trading of electricity or any other matter referred to the State Commission by that Government: (3) The State Commission shall ensure transparency while exercising its powers and discharging its functions. (4) In discharge of its functions, the State Commission shall be guided by the National Electricity Policy, National Electricity Plan and tariff policy published Under Section 3. 11. We may note a distinction between the Members of the Central Commission and the State Commissions inasmuch as Section 77 dealing with the appointment of Members of Central Commission provides as under: 77. Qualifications for appointment of Members of Central Commission.- (1) The Chairperson and the Members of the Central Commission shall be persons....
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....son to be appointed as Chairperson to the State Commission is a Judge, necessary consultation will have to be with the Chief Justice of the High Court as per the proviso to Section 84(2). 14. It may be noticed that Under Section 78 of the said Act, insofar as the Selection Committee to recommend Members of the Central Commission is concerned, the Chairperson of the Selection Committee has to be a Member of the Planning Commission in-charge of the energy sector. Once again, the proviso to Section 78 makes an exception to the appointment of a person as a Chairperson of the Central Commission, who is, or has been a Judge of the Supreme Court or the Chief Justice of the High Court, as in that eventuality, the Chief Justice of India has to be consulted. 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 mem....
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....nditions of license. Section 45 of the said Act makes provision for power to recover charges, Section 46 of the said Act makes provision for power to recover expenditure. Section 50 provides for the State Commission to specify an Electricity Supply Code for recovery, billing, etc., while Section 57 empowers the Appropriate Commission to specify standards of performance of a licensee. Section 61 deals with tariff Regulations and Section 66 deals with the development of a market in power, guided by the National Electricity Policy. Looking to all these functions, it was canvassed that a purposive interpretation should be given to the expression used, for interpreting the provisions of appointment of the Chairperson. Mindful of the technical nature of functions as they are, it was argued that a Judge was not required and that this was apparent from the fact that even at present, all State Commissions are headed by non-Judges, except one. The provision was stated to be only felicitous in character, as it gives an option to appoint a Judge. It was argued that there could be a possibility of a Judge, rarely, as it may be, being an expert in this field who could be so appointed. However, i....
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....n, a Judge of a High Court, and that such appointment shall be made after consultation with the Chief Justice of the High Court. Thus, where complicated legal issues have been raised, it was observed, the presence of one or more judicial members in the State Commission would become necessary. No judicial member had been appointed in the Tamil Nadu State Commission and, thus, the authorities concerned were required to look into the desirability and feasibility for making appointments, of any person, as the Chairperson from amongst persons, who is or has been a Judge of a High Court. 19. The provisions of Section 113 of the said Act were referred to, to conclude that the legislature was aware that the functions performed by the State Commission as well as the appellate tribunal are judicial in nature and, thus, the appellate authority has the trappings of the Court. This essential feature had not been made mandatory Under Section 84 of the said Act. In the opinion of the Bench, it would be "advisable" for the State Government to exercise the enabling power Under Section 84(2) of the said Act to appoint a person, who is, or has been a Judge of a High Court as Chairperson of the Sta....
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.... or other material object producible as evidence; (c) receiving evidence on affidavits; (d) requisitioning of any public record; (e) issuing commission for the examination of witnesses; (f) reviewing its decisions, directions and orders; (g) any other matter which may be prescribed. (2) The Appropriate Commission shall have the powers to pass such interim order in any proceeding, hearing or matter before the Appropriate Commission, as that Commission may consider appropriate. (3) The Appropriate Commission may authorise any person, as it deems fit, to represent the interest of the consumers in the proceedings before it. 95. Proceedings before Commission.- All proceedings before the Appropriate Commission shall be deemed to be judicial proceedings within the meaning of Sections 193 and 228 of the Indian Penal Code and the Appropriate Commission shall be deemed to be a civil court for the purposes of Sections 345 and 346 of the Code of Criminal Procedure, 1973 (2 of 1974). 96. Powers of entry and seizure.- The Appropriate Commission or any officer, not below the rank of a Gazetted Officer specially autho....
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.... could only fall back on Madras Bar Association v. Union of India and Anr. (2014) 10 SCC 1 (MJ-II). The said judgment dealt with the creation of the National Tax Tribunal under the National Tax Tribunal Act, 2005. The constitution of the Tribunal was held to be one for transfer of the appellate jurisdiction under Tax Laws vested in the High Courts. The majority held that the Act could not pass the test of constitutionality, on account of inter alia, the provisions relating to the appointment of the Chairpersons and Members of the Tribunals. In the said case, reference was made to the earlier Constitution Bench judgment in the Union of India v. Madras Bar Association (2010) 11 SCC 1 (MJ-I), crystallizing the legal position while transferring adjudicatory functions from Courts to Tribunals. It was observed that such Tribunals should possess the same independence, security and capacity as the courts which the Tribunals are mandated to substitute and thus, Members of the Tribunals discharging judicial functions could only be drawn from sources possessed of expertise in law and competent to discharge judicial functions. Technical members could also be appointed where such technical expe....
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....ly by the Judges. The plea was that Under Section 84 of the said Act, there is no requirement for the Chairperson or the Member of a State Commission to be a Judge of a High Court. No such appointment had actually been made in that case nor did the Commission have a judicial member and, thus, the same was contrary to the Constitution Bench judgment of this Court in Madras Bar Association[supra] (MJ-I). He, thus, submitted that it is in the context of this argument that what was observed by the Bench in that judgment would have to be construed and nothing more than that. It is this argument, which has been dealt with when the observations relied upon in the impugned order were referred to. This is stated to be quite apparent even from para 55, which records the submissions of the then counsel for the Appellant in Tamil Nadu Generation and Distribution Corporation Limited[supra] and what was accepted by the Court in para 59 of the judgment, i.e., adjudicatory functions generally ought not to be conducted by the State Commission in the absence of a Judicial Member, which are not fairly relative to tariff fixation or the advisory and recommendatory functions of the State Commission. ....
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....ar Power Ltd. (2016) 9 SCC 103 (GJ-II), which dealt with the vital issue of composition and functioning of Tribunals and statutory framework thereof. In the context of the observations in Madras Bar Association v. Union of India and Anr. [supra] (MJ-II), it was observed in para 33 that the law laid down by this Court may call for review of composition of Tribunals under the Electricity Act or other corresponding statutes. This was so as an appeal to this Court on questions of law or substantial questions of law show that Tribunals deal with such questions or substantial questions, and that the direct appeals to this Court has the result of denial of access to the High Court. Such Tribunals, thus, become a substitute for the High Courts, without the manner of appointment to such Tribunals being the same as the manner of appointment of High Court Judges. 33. Lastly, learned Counsel referred to Uttar Pradesh Power Corporation Limited v. National Thermal Power Corporation Limited and Ors. (2011) 12 SCC 400 where observations were made qua the function of the Central Commission constituted Under Section 3 of the Electricity Regulatory Commissions Act, 1998 as an expert body, which ha....
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....gard to the transaction of business at its meetings (including the quorum at its meetings) as it may specify. (2) The Chairperson, or if he is unable to attend a meeting of the Appropriate Commission, any other Member nominated by the Chairperson in this behalf and, in the absence of such nomination or where there is no Chairperson, any Member chosen by the Members present from amongst themselves, shall preside at the meeting. (3) All questions which come up before any meeting of the Appropriate Commission shall be decided by a majority of votes 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 authorised by the Chairperson in this behalf. 37. Thus, as per Sub-section (2) of Section 92, the Chairperson has a right to nominate a member who would chair the meeting in his absence and as per Sub-section (3....
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....raised, upon which the case is decided." What is binding upon courts, "is the ratio decidendi of the judgment. It is the essence of a decision and the principle upon which the case is decided which has to be ascertained in relation to the subject-matter of the decision. Stand of the Madras Bar Association (Original Petitioner) in Civil Appeal No. 13451/2015 40. The challenge to the impugned judgment of the Madras High Court in that matter was laid by Mr. Arvind Datar, learned Senior Advocate. He sought to contend that the year 1991 saw a paradigm shift in the economic functioning in the country where State functions were opened up to private players. This was not supposed to be unregulated and, thus, the Parliament provided a regulatory body. By the time the said Act was enacted in 2003, the Parliament had become wiser and the introduction of the requirement of a Judge to head the regulatory commission was, thus, introduced in this Act. 41. Turning to the specific provisions of the Act, he referred to Section 82(4) of the said Act, which provides that a State Commission would consist of not more than three members including the Chairperson. Section 2(43), defines a Member ....
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....d by the Executive without reference to the Head of the Judiciary. In this context, the Supreme Court observed in para 6 that if an expert body is to be created, as submitted on behalf of the Union of India consistent with what is said to be the international practice, it may be appropriate to consider the creation of two separate bodies - one with the expertise, i.e., advisory and regulatory and the other adjudicatory. This is followed up by an appellate body as contemplated, which could go a long way in meeting the challenge sought to be raised in the writ petition. Insofar as the working of the Commission was concerned, it was observed that it had a number of adjudicatory functions as well. 44. In Gujarat Urja Vikas Nigam Ltd. [supra] (GJ-I), the implied conflict between Section 86(1)(f) of the said Act and Section 11 of the Arbitration & Conciliation Act, 1996, was reconciled and applying the harmonious construction principles (Mimansa principles) it was observed that where there is a dispute between a licensee and the generating company, only the State Commission or the Central Commission or arbitrator nominated by it could resolve such disputes, whereas all other disputes ....
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.... that there exists a mandatory requirement for him to be a retired Judge of a High Court. T.C.(C) No. 138/2015 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 issu....
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....he State Government. In the facts of the case, it was found that the concerned person was working as Joint President of the JP Power Ventures Limited at the time of selection, hence he had financial and other interest in the company, which would prejudicially affect his functions as the Chairperson of the Commission. The judgment of this Court in Mor Modern Cooperative Transport Society Ltd. v. Financial Commissioner & Secretary to Govt. of Haryana and Anr. (2002) 6 SCC 269 was also referred to. The provision in question was Section 68(2) of the Motor Vehicles Act, 1988. Section 68 of the Motor Vehicles Act, 1988 empowered the State Government to constitute a State Transport Authority and Regional Transport Authorities to exercise powers and functions specified in Chapter V Section 68(2) put a restriction that no person who has a financial interest whether as proprietor, employee or otherwise in any transport undertaking was to be appointed and in case such financial interest was acquired post appointment, the person was required to give notice in writing to the State Government of acquisition of such interest and would vacate office. The Transport Commissioner and Traffic Manager ....
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....t from determination of tariff. Such distance from the Government, it was contended, could be brought about by appointment of a High Court Judge with a trained judicial mind as the Chairman of the Commission. 57. Learned Counsel referred to A.P. Power Coordination Committee and Ors. v. Lanco Kondapalli Power Ltd. and Ors. (2016) 3 SCC 468, where it was held that a claim coming before the Commission could not be entertained or allowed if it is barred by limitation prescribed for an ordinary suit before a Civil Court. This aspect was sought to be emphasized in the context of the discussion that the Commission was performing judicial functions. The view taken by this Court in Union of India v. Namit Sharma (2013) 10 SCC 359 was sought to be distinguished since no adjudicatory functions were involved in the performance of the functions of an Information Commissioner. 58. A reference was, once again, made to the powers of the Commission Under Section 94 to 96 of the said Act as also to Section 97, which provides for delegation of the power to any Member, Secretary, Officer of the Commission except the powers to adjudicate disputes Under Sections 79 and 86, and the powers to ....
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....mance of its statutory functions under this Act. 62. The contention thus advanced, is that the scheme of the Act looks to the appellate authority as a body which is supervising the Commission, and is chaired by a person who is, or has been the Chief Justice of the High Court or a Judge of the Supreme Court. Thus, there is really no need to have a High Court Judge as the Chairperson of the State Commission albeit an enabling provision having been made. 63. Mr. Naphade, learned Senior Advocate appearing for the State of Tamil Nadu submitted that orders dated 11.12.2014 and 12.12.2014 had been unsuccessfully carried in appeal and even the Special Leave Petitions were dismissed. Thus, the merits of the orders passed cannot be questioned. He further submitted that suo moto proceedings were initiated on 23.9.2013 while the appointment was made on 31.12.2013. Thus, Respondents Nos. 6 & 7 were both appointed after the suo moto proceedings had been initiated. The Selection Committee had not been impleaded as a party even though the selection process was being questioned. This Selection Committee was presided over by a retired Judge of the High Court. It was also submitted that a suo m....
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....ive part, so as to have the effect of cutting down the clear terms of an enactment. If the words of the enactment are clear and are capable of only one interpretation on a plain and grammatical construction of the words thereof, a non obstante Clause cannot cut down that construction and restrict the scope of its operation. In such cases the non obstante Clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the Legislature by way of abundant caution and not by way of limiting the ambit and scope of the operative part of the enactment." 67. For the same purpose, the reference was also made to Ajit Singh (II) v. State of Punjab (1999) 7 SCC 209. It was, once again, emphasized that the appellate tribunal takes care of various concerns, more so when matters have to be heard by a Bench with at least one judicial member. It was also emphasized that Under Section 82(2) of the Act a State Commission has to be a body corporate having perpetual succession and common seal and the provision reads as under: 82. Constitution of State Commission.- xxxx xxxx xxxx xxxx xxxx (2) The State Commission s....
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.... judicial pronouncements and the relevant legal literature in terms of the remaining composition of the tribunal apart from the Chairperson. If we turn to the first question, on a plain reading of Section 84(1) of the said Act all that is mandated is that both the Chairperson and the Members of the State Commission "shall" be persons of ability, integrity and standing who have adequate knowledge of and have shown capacity in dealing with problems relating to engineering, finance, commerce, economics, law or management. A plain grammatical reading of this Section shows that no distinction has been made qua the qualifications of a Chairperson and Member. All that is required is the mandates contained in the Sub-section, which begin with the word "shall". Thus, any person of the fields mentioned therein, having the ability, integrity and standing can be appointed as a Member or Chairperson. 74. Section 85 of the said Act provides for constitution of a Selection Committee to select the Members of the State Commission, which in turn has to consist of the persons as set out therein and mandatorily has to have a person, who has been a Judge of the High Court as the Chairperson of the S....
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.... Courts may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute (Sainik Motors v. State of Rajasthan (1962) 1 SCR 517 and State of U.P. v. Babu Ram (1961) 2 SCR 679). We are, however, faced with a converse situation as to whether "may" can be read as "shall". In this behalf we may take recourse to the judicial opinion that where in the same Section the word 'may' has been used at one place and 'shall' at another place, it would strengthen the inference that the words have been used in the primary sense (Chairman Canara Bank, Bangalore v. M.S. Jasra AIR 1992 SC 1341). 77. A reference to Maxwell on The Interpretation of Statutes (Twelfth Edition), more specifically the chapter on "Exceptional Construction" would show that the modification of the language of a statute is the tool used only if, in its ordinary meaning and grammatical construction, there is a manifest contradiction of the apparent purpose of the enactment, or some inconvenience or absurdity which could hardly have been intended. It has been observed that in ordinary usage, "may" is permissive and "must" is imperative and that the word "may" used in ....
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....ntment would be different from the one as envisaged Under Section 85 of the said Act. 81. We may also look to the nature and functions performed by the State Commission. Functions of the State Commission are prescribed Under Section 86 of the said Act. The enumerated functions are determination of tariff, Regulation of electricity purchase and procurement process of distribution licencees, facilitating intra-state transmission, issuing licences to persons, promoting cogeneration and generation of electricity from renewable sources, levy fee, specify or enforce standards, fix trading margins. All these functions are regulatory in character rather than adjudicatory. The real adjudicatory function is only provided in Sub-clause (f) whereupon the Commission has the option of adjudicating the disputes between the licencees and generating companies, or to refer such disputes to arbitration. There is also an advisory role to be performed by the State Commission as specified in Sub-section (2). The issue, however, is not whether a Judge would be comfortable doing this function but whether these are types of functions which necessarily mandate a Judge to be a Chairperson. The answer to t....
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....he said Act. This would make the reference to a Chairperson Under Sub-sections (2), (3), (5) & (6) of Section 85 otiose as that eventuality would never arise were such a plea to be accepted. 86. We are, thus, unable to accept the contention advanced on behalf of the parties, who sought to sustain the view adopted by the Gujarat High Court. The fact that the Chairperson has a right to nominate the Member, who would chair meetings in his absence as per Sub-section (2) of Section 92, or that the presence of a man of law would be no substitute to the requirement of a Judge who would bring a judicial thought process to the decision making as Chairman, or that the regulatory body should not be unregulated, are generalized pleas, which are difficult to accept. No doubt, the law declared by the Supreme Court is binding on all Courts within the territory of India, which would also include principles of law emanating from a judgment or interpretation of the law, but then the ratio decidendi of the judgments of the Supreme Court, makes the principle of mandatory requirement of a Judge applicable only to cases where the judicial function is sought to be shifted through the process of 't....
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....r five fields. That would still leave the appointment of two members from the fields specified, including law. Thus, there can be a possibility and we are informed that it is so, where State Commissions have no members from the legal field at all. The moot point arises whether there can be a mandatory provision read into Section 84(1) of the said Act for opining, that at least one person from the legal field is necessary as a member, although on a plain reading of the Section it is not so. 89. The distinguishing feature, as pointed out aforesaid between appointment of members to the Central Commission and the State Commission is that, with regards to the Central Commission, it is specifically provided in Section 77 of the said Act, how many persons from which field are to be appointed. There is a further proviso to Sub-clause (c) of Sub-section (1) of Section 77 of the said Act restricting it to not more than one member from the fields specified in the said clause, viz. economics, commerce, law or management. This is not the position insofar as the State Commission is concerned. 90. In order to appreciate any such requirement for a person from the legal field as a member of t....
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....mission would be a civil court for purposes of Sections 345 & 346 of the Code of Criminal Procedure, 1973. Not only that, Section 96 confers the extreme power of entry and seizure in respect of any building and place where the Commission has reason to believe that any document relating to the subject matter of enquiry may be found and may be seized. The power is conferred on the Commission Under Section 129 for securing compliances of orders and Under Sections 142 & 146 for punishment for non-compliance of orders and directions. This, thus, leaves no manner of doubt that the State Commission, though defined as a 'Commission' has all the 'trappings of the Court'. 94. We may also note that in terms of what has been opined in Gujarat Urja Vikas Nigam Ltd. [supra] (GJ-I), such adjudication of disputes between the licensees and generating companies by the State Commission or the arbitrator nominated by it under Clause (f) of Sub-section (1) of Section 86 of the said Act extends to all disputes and not merely to those pertaining to matters referred to in Clauses (a) to (e) and (g) to (k) of Section 86(1) as may arise between licensees and generating companies. In effec....
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....dicial functions in the sense that it has to decide on evidence between a proposal and an opposition; and it is not necessary to be strictly a Court if it is a tribunal which has to decide rights after hearing evidence and opposition. 96. The Supreme Court also took note of the definition of "judicial power" and "judicial decision" in Huddart, Parker & Co. v. Moorehead 8 CLR 330, 357 and Cooper v. Wilson (1937) 2 KB 309, at p. 340 respectively. Griffith, C.J., in the first judgment observed as under: The words 'judicial power' as used in Section 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action. 97. In the latter judgment, it was observed as under: A true judicial decision presupposes an existing dispute between two or more parties, and then involves four requisites: (1) The presentation (....
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.... process and would directly impinge on the impartiality and the independence of the judiciary. It was also contended that the same would undermine the principle of separation of powers which was sought to be strictly maintained by the Constitution of India. The counsel, in fact, went further that the function of the Chairman of such a commission required only a retired Judge of the High Court to occupy that post, an aspect, which has been negated by us hereinbefore. The Supreme Court gave its imprimatur to the submission advanced on behalf of the Appellant to the extent that the adjudicatory functions generally ought not to be conducted by the State Commission in the absence of judicial members. It was noticed that no judicial member had been appointed in the Tamil Nadu State Commission, and that the feasibility for making the appointment of a person as the Chairman from amongst persons, who is, or has been, a Judge of the High Court should be explored. 101. It is undoubtedly true that the question which the Court was seized of, related to the interpretation of Section 86 of the said Act and certain other matters, which are not connected with the controversy herein. Thus, the is....
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....t be a judicial member", the fact remains that it would have no impact on the decision in that case, which was related to inter alia the interpretation of Section 86 of the said Act. This, in fact, justifies what we have held aforesaid qua the appointment of a Chairperson from the pool of Judges. 105. In the context of the question which we are now dealing with, if we were to take the proposition as "no member having knowledge of law is required to be a member of the Commission" then we have a problem at hand. This is so because while interpreting Section 86 of the said Act, it has been expressed that the Commission has the 'trappings of the Court', an aspect we have agreed to hereinbefore. Once it has the 'trappings of the Court' and performs judicial functions, albeit limited ones in the context of the overall functioning of the Commission, still while performing such judicial functions which may be of far reaching effect, the presence of a member having knowledge of law would become necessary. The absence of a member having knowledge of law would make the composition of the State Commission such as would make it incapable of performing the functions Under Sect....
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.... of separation of powers and judicial review, which have been read to be a part of the basic structure of the Constitution. 109. We are also not in a position to accept the plea advanced by the learned Attorney General that since there is a presence of a Judge in the Appellate Tribunal that would obviate the need of a man of law as a member of the State Commission. The original proceedings cannot be cured of its defect merely by providing a right of appeal. 110. We are, thus, of the unequivocal view that for all adjudicatory functions, the Bench must necessarily have at least one member, who is or has been holding a judicial office or is a person possessing professional qualifications with substantial experience in the practice of law and who has the requisite qualifications to have been appointed as a Judge of the High Court or a District Judge. 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 plea is of financial bias of the two members as they were working in their erstwhile avatars. The name of Mr. G. Rajagopal was recommen....