TaxTMI 
TaxTMI 
2022 (8) TMI 1390
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.... issue is whether the Commission discharges an adjudicatory function while dealing with such petitions. 2. As per Section 82(4) of the Act, the Commission shall consist of not more than three Members, including the Chairperson. The present Chairman Mr. M. Chandrasekar joined the Commission on 16.08.2019. Thiru.K. Venkitasamy was appointed as Member-Legal on 02.07.2019. The remaining vacancy was filled up on 12.01.2022 when Thiru.R. Jerard Kishore was appointed. He, however, resigned on 17.03.2022. The Member-Legal retired on 05.05.2022. In order to fill up the vacancy that arose on account of the resignation of Mr. Jerard Kishore, the Government of Tamil Nadu issued G.O. (Ms) No. 23 Energy (D1) Department dated 13.04.2022 constituting a Selection Committee under sub-section (1) of Section 85 of the Act for recommending a panel of two names for the said vacancy. The said Selection Committee submitted its report. Out of the two names recommended by the Committee, the Government selected Thiru.K. Venkatesan who joined the Commission on 18.07.2022. 3. The Bench comprising the Chairperson Mr. M. Chandrasekar and Thiru. Venkatesan entertained the Tariff Petitions (T.P. Nos. 1 & 2 o....
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....round should sit on the Bench to hear the aforesaid petitions. They would submit that this issue is no longer res integra as it has already been dealt with by the Hon'ble Supreme Court in Paragraph No. 90 of the judgment in State of Gujarat and ors. v. Utility Users Welfare Association (2018) 6 SCC 21. They submitted that there is no bar for the Commission to continue to function even without a Member-Legal. Merely because the order that may be passed on the tariff petitions is appealable, that would not by itself make the function of tariff fixation adjudicatory. There is no lis involved in tariff fixation. There are no respondents in the Tariff Petitions. The statutory scheme enables the stakeholders to offer their objections/suggestions. The petitioners can very well avail this opportunity and place their case during the public hearings. Without doing so, they have prematurely rushed to the Court. For the last several years, the exercise of tariff fixation had not been undertaken. It is long overdue and any delay would have calamitous consequences on public interest. The learned Senior Counsel for the respondents pressed for dismissal of these writ petitions. 6. I careful....
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....R 341 (Mad) categorically held that even an obiter dictum of the Supreme Court insofar as it expounded the law would be binding on all the Courts under the Constitution. 7. Though this should conclude the issue, I must note that the Hon'ble Supreme Court in Maharashtra Electricity Regulatory Commission vs. Reliance Energy Ltd. and Ors. (2007) 8 SCC 381 also took the same view when it held that the adjudicatory function of the Commission is limited to the matter prescribed in Section 86(1)(f). 8. Of course, the learned Senior Counsel and the learned counsel for the petitioners would want me to draw inspiration from the Constitution Bench judgment reported in (2010) 4 SCC 603. Paragraphs 49, 50 and 53 of the said decision read as under: "49. On the above analysis of various sections of the 2003 Act, we find that the decision-making and regulation-making functions are both assigned to CERC. Law comes into existence not only through legislation but also by regulation and litigation. Laws from all three sources are binding. According to Professor Wade, "between legislative and administrative functions we have regulatory functions". A statutory instrument, such as a ru....
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....." But in my view, the aforesaid propositions would not advance the case of the petitioners. There is a clear distinction between adjudicatory function and quasi-judicial function. P. Ramanatha Aiyar's Advanced Law Lexicon defines "adjudication" as the legal process of resolving a dispute; the process of judicially deciding a case; the application of the law to the facts and an authoritative declaration of the result; judicial determination of a cause after taking into consideration the material on record and after hearing the parties; it implies a hearing by a court after notice of legal evidence on the factual issue involved. On the other hand, a determination of a question by an executive officer or other person who is not a court is "quasi-judicial" and he must follow the rules of natural justice. It describes a function that resembles the judicial function. It is something that is between a judicial and administrative function. The expression "quasi" means "not exactly". The distinction between "judicial" and "quasi-judicial" was set out in Cooper v. Wilson [1937] 2 K.B. 309 in the following terms: "A true judicial decision presupposes an existing dispute betwe....
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....ng a judicial office or is a person possessing professional qualifications with substantial experience in the practice of law, who has the requisite qualifications to have been appointed as a Judge of the High Court or a District Judge." The Hon'ble Supreme Court had been extremely strict in enforcing the aforesaid direction as seen, for instance, from the order dated 28.08.2020 in Contempt Petition (C) No. 429 of 2020. 11. Article 141 of the Constitution of India states that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. Article 144 states that that all authorities, civil and judicial, shall act in aid of the Supreme Court. In other words, it is the duty of the High Court to ensure that the directions of the Hon'ble Supreme Court are complied with in letter and spirit. The Hon'ble Supreme Court expressed its anguish on more than one occasion when the law Member vacancy was not filled up at all. When it has been declared that it is mandatory that there should be a law Member in the Commission, the State Government has no justification in not filling up the same. The technical Member resigned on 17.03.2022. The l....