TaxTMI 
TaxTMI 
2021 (6) TMI 1146
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.... to assail the orders dated 21.09.2018 and 06.10.2018, passed by the Assam Electricity Regulatory Commission, i.e. respondent no. 2 in connection with petition no. 4/2010 as well as the order dated 11.02.2020, passed in review petition no. 2/2020, review petition no. 3/2020 and review petition no. 4/2020. 3. The matter came up before the Court on 19.11.2020, and this Court, while issuing notice of motion, had stayed the Arbitration Case No. 21(DB)/2018, pending before the Sole Arbitrator. 4. The respondent no. 1 in the writ petition by filing the connected interlocutory application, had prayed for vacation/modification and/or alteration of the interim order of stay passed on 19.11.2020. Having noticed that this case involves question of law and with the effort which would be required to dispose of the interlocutory application, the connected revision can also be disposed of, both the matters were heard at the 'admission' stage with the consent of the learned senior counsel/counsel appearing for the parties. 5. In this common order in connection with the revision as well as the interlocutory application, the parties are referred to as per their position in the writ petiti....
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....tion no. 4/2010 in any manner as it may consider appropriate, including if necessary, by referring the same for arbitration. The IA stands disposed of." 7. By citing the case of State of Gujarat Vs. Utility Users' Welfare Assn., (2018) 6 SCC 21 before the respondent no. 2 Commission, the respondent no. 1 had called upon the Commission to refer the matter to arbitration as at that point of time the Commission did not have any Judicial Member. The respondent no. 2 Commission, by order dated 21.09.2018, had referred the dispute to arbitration in light of Section 86(1)(f) of the Electricity Act, 2003 and was further pleased to appoint an honourable former Judge of this Court as the Sole Arbitrator, subject to his confirmation as per Section 12 of the Arbitration and Conciliation Act, 1996. Thereafter, on receipt of confirmation of the learned Sole Arbitrator, by order dated 06.10.2018, the terms of reference for arbitration was indicated and the petition no. 4/2010 was disposed of. It is projected that the proceeding before the Arbitral Tribunal had commenced by issuance of notice vide order dated 13.10.2018. The respondent no. 1 projects that the petitioner had participated in ....
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..... It is also submitted that the respondent no. 2 was not discharging judicial or adjudicatory function while passing the orders dated 21.09.2018 and 06.10.2018. It is submitted that no decision making process was involved in referring the disputes as well as the parties to arbitration. It is also submitted that the respondent no. 2 Commission had approached this Court by filing I.A. (C) 1784/2016 and that this Court by order dated 08.03.2017, had granted liberty to the respondent no. 2 to refer the petition no. 4/2010 to arbitration. Accordingly, it is submitted that the said order had attained finality and any interference with the impugned orders would have the effect of nullifying the said order dated 08.03.2017 passed by the coordinate Bench. It is also submitted that the dispute was registered before the respondent no. 2 Commission in the year 2010 and that by adopting the present tactics, the petitioner has made an attempt to bring the adjudication of their dispute to a naught. It is further submitted that the arbitration proceeding is presently at the stage of evidence. It is submitted that the provisions of Section 86(1)(f) of the Electricity Act, 2003 makes it clear that t....
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.... passed in the matter. 12. Having heard all sides, perused the revision petition, interlocutory application and affidavit-in-opposition filed therein by the petitioner. The following point of determination arises in this matter. a. In light of the order dated 08.03.2017 passed by the coordinate Bench in I.A. (C) 1784/2016 having attained finality whether and any interference with the impugned orders would have the effect of nullifying the said order? b. Whether the writ petition is barred under the principles of waiver, estoppel and acquiescence? c. Whether the delay in making the challenge in fatal to the maintainability of the writ petition? d. Whether any adjudicatory process was involved in passing of the orders dated 21.09.2018 and 06.10.2018 by the respondent no. 2 Commission? e. Whether the said two orders dated 21.09.2018 and 06.10.2018 along with the subsequent order dated 11.02.2020 passed by the respondent no. 2 Commission suffers from any jurisdictional error and warrants interference? 13. The point of determination no. (a) is taken up first. Perused the order dated 20.07.2016, passed by the coordinate Bench of this Court in W.P. (C) 4148/2016 (Eastern India....
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....nsidered opinion that as jurisdiction cannot be conferred by consent, notwithstanding that there was no objection by the petitioner when orders dated 20.07.2016 and 08.03.2017 were passed, notwithstanding that the said orders had attained finality, the question of jurisdiction can be entertained in this writ petition. Resultantly, the Court is of the considered opinion that interference, if any, with the impugned orders passed by the respondent no. 2 would not have the effect of nullifying the previous orders dated 20.07.2016 and 08.03.2017, as appointment or the Arbitral Tribunal, and rejection of petition for condonation of delay and resultant dismissal of the review petition were not the subject matter of challenge in the previous writ petition. Thus, the point of determination no. (a) is answered in the negative and against the respondent no. 1 by holding that the instant order is not found to nullify the order dated 20.07.2016 passed in W.P. (C) 4148/2016 and order dated 08.03.2017 passed in I.A. (C) No. 1784/2016 in any manner whatsoever. 17. The point of determination no. (b) is examined now. It is seen that as on the dates when this Court had passed the herein before refer....
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....a power to refer the dispute to arbitration and the expression "and" in the said clause has been read as "or" in Gujarat Urja Vikas Nigam Ltd. Vs. Essar Power Ltd., (2008) 4 SCC 755 (GJ-I), implying that the option is available to the State Commission to do either of the two. 116. 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 Section 86(1)(f) of the sa....
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....tricity Act, 2003 has been specifically held to be adjudicatory or judicial function, the herein before referred cases cited by the learned senior counsel for the respondent no. 1 would have no application under the facts of the present case. 20. The Supreme Court of India in the case of United Commercial Bank Ltd. (supra), which was decided by a 7 Judge Bench, had observed in paragraph 15 to the effect that "... No acquiescence or consent can give a jurisdiction to a Court of limited jurisdiction which it does not possess." 21. Thus situated, when orders dated 21.09.2018 and 06.10.2018 were passed by the respondent no. 2 Commission, the Supreme Court of India had already interpreted the scope of Section 86(1)(f) of the Electricity Act, 2003 in the case of Utility Users' Welfare Association (supra) (para-116), that while exercising power under the said provision, the Commission was performing judicial function. Therefore, the petitioner has been able to demonstrate that in paragraph 116 of the case of Utility Users' Welfare Association (supra), it has been held that "... The absence of a member having knowledge of law would make the composition of the State Commission suc....
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....mission and as such it cannot be said that the said orders were vitiated by the principles of coram non judice. In this regard, although the argument appears to be attractive, but in light of the decision in the case of Utility Users' Welfare Association (supra), not only it has been held that Section 86(1)(f) of the Electricity Act, 2003 involves adjudicatory function, but in paragraph 116 of the said judgment, it has been further held that absence of member having knowledge of law would make the composition of the State Commission such as would make it incapable of performing the function under Section 86(1)(f) of the Electricity Act. Thus, notwithstanding that the impugned orders were passed by two Member coram, in the absence of Judicial Member, the said orders are found to be vitiated. 26. Therefore, as the orders dated 21.09.2018 and 06.10.2018, suffer from the vice of coram non judice, the said orders are non est and therefore, under the facts unique to this case, the belated challenge by way of this writ petition is not found to be fatal to the instant writ petition. The point of determination no. (c) stands answered accordingly. 27. The point of determination nos. (d....