w w w . L a w y e r S e r v i c e s . i n



Assam Power Distribution Company Ltd., Rep. By Its Managing Director v/s Eastern India Powertech Ltd., Haryana


Company & Directors' Information:- U. P. POWER CORPORATION LIMITED [Active] CIN = U32201UP1999SGC024928

Company & Directors' Information:- D B POWER LIMITED [Active] CIN = U40109MP2006PLC019008

Company & Directors' Information:- INDIA POWER CORPORATION LIMITED [Active] CIN = L40105WB1919PLC003263

Company & Directors' Information:- INDIA POWER CORPORATION LIMITED [Amalgamated] CIN = U40101WB2003PLC097340

Company & Directors' Information:- EASTERN INDIA POWERTECH LIMITED [Active] CIN = U40100HR1988PLC032877

Company & Directors' Information:- ASSAM POWER DISTRIBUTION COMPANY LIMITED [Active] CIN = U40109AS2003SGC007242

Company & Directors' Information:- B L A POWER PRIVATE LIMITED [Active] CIN = U40102MH2006PTC165430

Company & Directors' Information:- L V S POWER PRIVATE LIMITED [Active] CIN = U40100TG1996PTC023552

Company & Directors' Information:- S L S POWER CORPORATION LIMITED [Active] CIN = U40109AP2005PLC047008

Company & Directors' Information:- ASSAM COMPANY INDIA LIMITED [Active] CIN = L01132AS1977PLC001685

Company & Directors' Information:- S L V POWER PRIVATE LIMITED [Active] CIN = U40102KA2002PTC030448

Company & Directors' Information:- S. E. POWER LIMITED [Active] CIN = L40106GJ2010PLC091880

Company & Directors' Information:- E O S POWER INDIA PRIVATE LIMITED [Active] CIN = U32109MH1985PTC037094

Company & Directors' Information:- D C POWER LIMITED [Strike Off] CIN = U40109TG1996PLC025996

Company & Directors' Information:- POWER CORPORATION OF INDIA LIMITED [Amalgamated] CIN = U50101WB1997PLC084060

Company & Directors' Information:- B V POWER PRIVATE LIMITED [Active] CIN = U40106DL2011PTC213428

Company & Directors' Information:- R AND H POWER COMPANY PRIVATE LIMITED [Active] CIN = U51109UP1965PTC003067

Company & Directors' Information:- B R POWER LTD [Active] CIN = U40106WB1995PLC073567

Company & Directors' Information:- N M S POWER PRIVATE LIMITED [Active] CIN = U51109WB1999PTC089747

Company & Directors' Information:- P R B POWER PRIVATE LIMITED [Strike Off] CIN = U40101TG1995PTC020647

Company & Directors' Information:- S V G POWER PRIVATE LIMITED [Active] CIN = U40300AP2012PTC084435

Company & Directors' Information:- INDIA POWER PRIVATE LIMITED [Active] CIN = U31900DL1995PTC070096

Company & Directors' Information:- M POWER INDIA PRIVATE LIMITED [Active] CIN = U31908MH2012PTC234343

Company & Directors' Information:- A N S INDIA POWER PRIVATE LIMITED [Active] CIN = U51101DL2014PTC266873

Company & Directors' Information:- P & M DISTRIBUTION PRIVATE LIMITED [Active] CIN = U51109WB2007PTC115999

Company & Directors' Information:- M M K POWER PRIVATE LIMITED [Strike Off] CIN = U40106AP1998PTC030796

Company & Directors' Information:- C R E M POWER PRIVATE LIMITED [Strike Off] CIN = U40101DL2001PTC111631

Company & Directors' Information:- D T POWER PRIVATE LIMITED [Strike Off] CIN = U40300AP2015PTC097226

Company & Directors' Information:- O L G POWER P LTD [Active] CIN = U30007TN1991PTC020898

Company & Directors' Information:- G S POWER LIMITED [Strike Off] CIN = U40102KA2010PLC054033

Company & Directors' Information:- POWER AND POWER PVT LTD [Active] CIN = U31300AS1989PTC003282

Company & Directors' Information:- P D M POWER PRIVATE LIMITED [Active] CIN = U40104AS2014PTC011780

Company & Directors' Information:- S B S POWER PRIVATE LIMITED [Strike Off] CIN = U40100AP2012PTC083965

Company & Directors' Information:- B & G POWER LIMITED [Active] CIN = U40105PB2010PLC033765

Company & Directors' Information:- S POWER PRIVATE LIMITED [Active] CIN = U19202DL1986PTC026505

Company & Directors' Information:- G M POWER PRIVATE LIMITED [Strike Off] CIN = U40105PN2003PTC017857

Company & Directors' Information:- POWER INDIA PVT LTD [Strike Off] CIN = U31102WB1983PTC036315

Company & Directors' Information:- S AND S POWER PRIVATE LIMITED [Active] CIN = U40109PY2004PTC001824

Company & Directors' Information:- U S POWER PRIVATE LIMITED [Under Process of Striking Off] CIN = U40103MH2009PTC189364

Company & Directors' Information:- S & E DISTRIBUTION PRIVATE LIMITED [Strike Off] CIN = U74999TZ2014PTC020161

Company & Directors' Information:- A R POWERTECH PRIVATE LIMITED [Strike Off] CIN = U74140DL2014PTC267054

Company & Directors' Information:- M V T DISTRIBUTION PRIVATE LIMITED [Active] CIN = U74900KA2015PTC078055

Company & Directors' Information:- K P M POWER PRIVATE LIMITED [Strike Off] CIN = U40102KA2008PTC046804

Company & Directors' Information:- POWER-X PRIVATE LIMITED [Strike Off] CIN = U99999DL1970PTC005331

Company & Directors' Information:- S K POWER INDIA PRIVATE LIMITED [Strike Off] CIN = U31101KA2006PTC039172

Company & Directors' Information:- R G D POWER PRIVATE LIMITED [Strike Off] CIN = U41000TG1996PTC023809

Company & Directors' Information:- ASSAM DISTRIBUTION CO PVT LTD [Strike Off] CIN = U51909AS1975PTC001631

Company & Directors' Information:- M M R POWER PRIVATE LIMITED [Active] CIN = U31104DL2008PTC174079

Company & Directors' Information:- S J POWER PRIVATE LIMITED [Strike Off] CIN = U45207HR2012PTC045937

Company & Directors' Information:- T C POWER PRIVATE LIMITED [Strike Off] CIN = U40101PB2009PTC033405

Company & Directors' Information:- R. L. POWERTECH PRIVATE LIMITED [Active] CIN = U31909RJ2016PTC055647

Company & Directors' Information:- H. & T. POWER PRIVATE LIMITED [Active] CIN = U40106MH2016PTC287646

Company & Directors' Information:- S & O POWER PRIVATE LIMITED [Active] CIN = U40107MH2010PTC206447

Company & Directors' Information:- C L M DISTRIBUTION PRIVATE LIMITED [Strike Off] CIN = U51909MH2003PTC142339

Company & Directors' Information:- V D M-POWER PRIVATE LIMITED [Active] CIN = U74999MH2015PTC262999

Company & Directors' Information:- A C R POWER PRIVATE LIMITED [Strike Off] CIN = U74900UP2010PTC040987

Company & Directors' Information:- EASTERN CO PVT LTD [Active] CIN = U74140WB1943PTC011182

Company & Directors' Information:- W N POWER PRIVATE LIMITED [Strike Off] CIN = U40101JK2013PTC004009

Company & Directors' Information:- A N POWERTECH PRIVATE LIMITED [Active] CIN = U45206DL2011PTC214160

Company & Directors' Information:- C K S POWER PRIVATE LIMITED [Strike Off] CIN = U40101KA2010PTC052199

Company & Directors' Information:- G C I POWER PRIVATE LIMITED [Active] CIN = U40107KA2010PTC053656

Company & Directors' Information:- R. C. POWER PRIVATE LIMITED [Strike Off] CIN = U40100GJ2009PTC058005

Company & Directors' Information:- J R J POWER PRIVATE LIMITED [Active] CIN = U40300GJ2015PTC082396

Company & Directors' Information:- POWERTECH PRIVATE LIMITED [Active] CIN = U31200GA1976PTC000279

Company & Directors' Information:- D V N POWER PRIVATE LIMITED [Strike Off] CIN = U40101TG2007PTC053069

Company & Directors' Information:- EASTERN CORPN PVT LTD [Strike Off] CIN = U51109WB1936PTC008577

Company & Directors' Information:- A. R. POWER PRIVATE LIMITED [Strike Off] CIN = U74999DL2007PTC161616

    Case No. CRP 71 of 2020 & I.A.(Civil) 2313 of 2020

    Decided On, 14 June 2021

    At, High Court of Gauhati

    By, THE HONOURABLE MR. JUSTICE KALYAN RAI SURANA

    For the Petitioner: N. Kohli, D.Nath, Advocates. For the Respondent: R1, G.N. Sahewalla, Senior Advocate, Md. Aslam, D. Senapati, A. Chetia, Ms. S. Katakey, Advocates, R2, Ms. S.N. Sarma, Senior Advocates, K. Kalita, Ms. S. Ghosh, G.K. Deka, Ms. C. Basumatary, Advocates, R3, C.K.S. Barua, Govt. Advocate.



Judgment Text

Judgment & Order1) Heard Mr. N. Kohli, learned counsel, assisted by Mr. D. Nath, learned counsel for the petitioner/opposite party no.1. Also heard Mr. G.N. Sahewalla, learned senior counsel, assisted by Mr. D. Senapati, learned counsel for the respondent no.1/applicant, Mr. S.N. Sarma, learned senior counsel, assisted by Mr. K. Kalita, learned counsel for respondent no.2/opposite party no.2 and Mr. C.K.S. Barua, learned Government advocate appearing for the respondent opposite party no.3.2) This revision has been filed under Article 227 of the Constitution of India 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 petition for the sake of convenience.6) The facts are in a very narrow campus. For the sake of brevity, it would suffice to mention that the petitioner and respondent no1 had entered into a power purchase agreement on 09.02.1995 (hereinafter referred to as the 'PPA' for brevity), by which it was agreed that the respondent no.1 would develop, finance, construct, own and operate power plants and sell power to the petitioner. In course of time, disputes and differences arose between the respondent no.1 and the petitioner with regard to the fixation of tariff vis--vis entitlement as per the PPA. Resultantly, by filing a Misc. Petition before the respondent no.2, which was registered as Petition No. 4/2010, commercial dispute pertaining to period from 1997 to 31.03.2008 was raised before the respondent no.2 Commission. The said petition was admitted by order dated 12.10.2010. The respondent no.1 projects that they were diligently pursuing the matter, but the hearing before the respondent no.2 Commission did not commence. Therefore, the aggrieved respondent no.1 filed a writ petition before this Court, being W.P.(C) 4148/2016, and this Court by order dated 20.07.2016, had disposed of the writ petition with a direction that the dispute petition would be disposed of within a period of 4 months from the date of receipt of certified copy of the order. By order dated 05.08.2016, the respondent no.2 sought for submission of the views in the matter of appointment of arbitrator. The respondent no.2 Commissioner had approached this Court by filing an interlocutory application, being I.A.(C) 1784/2016 in connection with W.P.(C) 4148/2016 and this Court by order dated 08.03.2017, passed the order to the following effect:-"... *** *** *** Mr. Patowari submits that under the provision of Section 86(1)(f) of Electricity Act, 2003, Commission has the power to adjudicate and/or to refer any dispute for arbitration and basically clarification is sought as to whether the Commission would be permitted to refer the dispute for arbitration.Mr. Sahewalla submits that he will have no objection if the Commission decides the matter or refers the same to arbitration.Mr. Nath endorses the submissions of Mr. Sahewalla.In view of the above, IA stands disposed of by providing that the Assam Electricity Regulatory Commission will be at liberty to decide the petition 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 the proceeding before the learned Arbitral Tribunal without any demur. Thereafter, the petitioner had applied for review of the orders dated 21.09.2018 and 06.10.2018, which was registered as Petition No. 4/2020. The said application was accompanied by an application for condonation of delay, which was registered as Petition No. 2/2020 as well as a stay application, which was registered as Petition No. 3/2020. These petitions were rejected by order dated 11.02.2020, passed in petition no. 2/2020, and resultantly, petition no. 3/2020 and petition no. 4/2020 were also dismissed.8) The learned counsel for the petitioner has submitted that appointing an arbitrator as a judicial function and therefore, as no Judicial Member was appointed in the respondent no.2, the said Commission could not have passed the orders dated 21.09.2018 and 06.10.2018. It is submitted that no amount of concession would give competence to the Commission to pass order for appointment of Arbitral Tribunal by formulating the points of reference. It is also submitted that issue of jurisdiction goes to the root of the matter and can be raised at any stage and that the jurisdiction cannot be conferred by consent or waiver. In support of his submissions, the learned counsel for the petitioner had placed reliance on the following cases, viz., (i) K.K. Agarwal Vs. Sanjiv Nandan Sahai & Anr., order dated 07.12.2020 passed by Supreme Court of India in Cont. Pet.(C) No. 429/2020 in CA No. 14697 of 2015 , (ii) Jagmittar Sain Bhagat Vs. Director of Health Services, Haryana & Ors., (2013) 10 SCC 136 ,(iii) Sushil Kumar Mehta Vs. Gobind Ram Bohra, (1990) 1 SCC 193 , (iv) United Commercial Bank Ltd. Vs. Workmen, AIR 1951 SC 230 , (v) Chairman cum Managing Director, Coal India Vs. Ananta Saha & Ors., (2011) 5 SCC 142 , (vi) Whirlpool Corporation Vs. Registrar of Trade Marks, (1998) 8 SCC 1, (vii) State of Gujarat Vs. Utility Users' Welfare Assn., (2018) 6 SCC 21.9) Per contra, opposing the writ petition and submitting in support of the interlocutory application, the learned senior counsel for the respondent no.1 has submitted that the petitioner having consented to refer the matter to arbitrator and having participated in the proceeding before the learned Arbitral Tribunal, principle of estoppel would apply against the petitioner in question the impugned orders dated 21.09.2018 and 06.10.2018. It is also submitted that the respondent no.2 was not discharging judicial or adjudicatory function while passing the orders dated 21.09.2018and 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 the order to refer the matter to arbitration is a judicial order. In this regard, the learned senior Counsel for the respondent no.1 has meticulously compared the provisions of Section 86(1)(f) of the Electricity Act with the provisions of Section 11(6) of the Arbitration and Conciliation Act, 1996 to explain the difference. Moreover, it is submitted that the first sitting of the learned Arbitral Tribunal was held on 15.11.2018 and that since then no application had been filed by the petitioner under Section 16 of the Arbitration and Conciliation Act, 1996 and therefore, it was not permissible to maintain a collateral challenge by filing this writ petition to assail orders passed by the respondent No.2 Commission. Accordingly, it is submitted that the revision is devoid of any merit and was liable to be dismissed by vacating the interim order dated 19.11.2020. In support of his submissions, the learned senior counsel for the respondent no.2 has relied on the following case citations, viz., (i) National Institute of Mental Health and Neuro Sciences Vs. Dr. Kalyana Raman & Ors., (1992) Suppl (2) SCC 481 , (ii) State of Punjab & Anr. Vs. Jalour Singh, (2008) 2 SCC 660 , (iii) Manohar Vs. State of Maharashtra, (2012) 13 SCC 14, (iv) Namit Sharma Vs. Union of India, (2013) 1 SCC 745 , (v) S.B.P. & Co. Vs. Patel Engineering Ltd., (2005) 8 SCC 618 , (vi) Gujarat Urja Vikas Nigam Ltd. Vs. Essar Power Ltd., (2008) 4 SCC 755.10) The learned senior counsel for the respondent no.2 has made his submissions in support of the orders passed by it, which are assailed in the revision. It is submitted that as a matter of abundant caution, the respondent no.2 had approached this Court seeking permission to refer the matter to arbitration, which was permitted by this Court by the order dated 08.03.2017, passed in I.A.(C) 1784/2016. Accordingly, it is submitted that there was no jurisdictional error in the orders passed by the Commission. It is also submitted that as on the date of hearing, the Judicial Member has been appointed. Accordingly, it is prayed that the revision be dismissed.11) The learned Govt. advocate has referred to the legal provisions and has taken a neutral stand as this was essentially dispute between the petitioner and the respondent no.1. It is submitted that his only interest is that no order adverse to the interest of the Government of Assam is 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 Power Limited Vs. The Assam Power Distribution Company Ltd.& Anr.), as well as the order dated 08.03.2017 passed by the coordinate Bench in I.A.(C) 1784/2016. From the contents of the said orders dated 20.07.2016 and 08.03.2017, it is seen that the said orders do not reflect that the learned Bench was called upon to decide as to whether or not the order to refer the parties to arbitration as envisaged under Section 86(1)(f) of the Electricity Act, 2003 was a judicial function.14) However, from the contents of the orders dated 20.07.2016 and 08.03.2017 passed by this Court as well as the orders dated 21.09.2018 and 06.10.2018 passed by the respondent no.2 Commission, there is no doubt that there was no opposition to the prayer made by the respondent no.1 in the writ petition and prayer of the respondent no.2 in the interlocutory application. Moreover, the petitioner had not objected to when the respondent no.2 Commission had passed the orders dated 21.09.2018 and 06.10.2018. Rather, the petitioner had participated in the proceeding before the Arbitral Tribunal constituted and appointed by the respondent no.2 Commission.15) The projection in the revision petition is that the decision of the Supreme Court of India in the case of Utility Users' Welfare Association (supra) was brought to the notice of the Commission. In the said case, it was held that it was mandatory to have a judicial member in the Electricity Regulatory Commission for taking up adjudication cases. It may be stated that the case of Utility Users' Welfare Association (supra) was decided on 12.04.2018, i.e. prior to the date when W.P.(C) 4148/2016 and I.A.(C) 1784/2016 were disposed of, but before orders dated 21.09.2018 and 06.10.2018 was passed.16) The petitioner is projecting that in the case of Utility Users' Welfare Association (supra), the Supreme Court of India had held that exercise of power under Section 86(1)(f) of the Electricity Act, 2003 was adjudicatory in nature, which is the point of determination no. (d). There is nothing on record which shows that this Court had previously been called upon in W.P.(C) 4148/2016 and I.A.(C) 1784/2016 to decide whether the exercise of power under Section 86(1)(f) of the Electricity Act, 2003 was a adjudicatory function. Thus, in this case, the question of jurisdiction has been raised. Accordingly, the Court is of the considered 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 referred orders dated 20.07.2016 and 08.03.2017, there was no authoritative pronouncement on the scope of Section 86(1)(f) of the Electricity Act, 2003. As indicated herein before, the case of Utility Users' Welfare Association (supra) was decided on 12.04.2018, i.e. prior to the date when W.P.(C) 4148/2016 and I.A.(C) 1784/2016 were disposed of, but before orders dated 21.09.2018 and 06.10.2018 was passed. However, it appears that although the said case was cited before the respondent no.2 Commission, the Commission did not take into consideration the following paragraphs of the said judgment, which are quoted below:-"90. 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 this would also be in the negative, supporting the view we have adopted on the plain reading of the section.100. We have, in the context of Section 84(2) of the said Act, discussed the various functions of the State Commission which are specified under Section 86 of the said Act. The argument on behalf of the learned Attorney General and the counsel supporting him was that other than sub-clause (f) of Section 86, there are really no adjudicatory functions. There is, however, no dispute that sub-clause (f) is clearly an adjudicatory function. It provides for adjudication of disputes between the licencees and the generating companies. There is also 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 said Act."18) In light of aforesaid observations made by the Supreme Court of India in the case of Utility Users' Welfare Association (supra) , while interpreting Section 86(1)(f) of the Electricity Act, 2003, there appears to be no room for doubt that the Commission would be said to be performing judicial function under Section 86(1)(f) of the said Act. According to the learned counsel for the petitioner, the respondent no.2 Commission could not have referred the dispute and/or parties to arbitration without there being a Judicial Member in the Commission. However, it is seen that in the order dated 11.02.2020, the respondent no.2 Commission had observed in paragraph 6(b) that it was of the view that the act of referring the matter to an arbitrator is of administrative nature. Thus, the view of the respondent no.2 Commission appears to be contrary to the law laid down in the case of Utility Users' Welfare Association (supra). Thus, the issue raised in this writ petition is one of jurisdiction.19) The learned senior counsel for the respondent no.1 had relied on paragraphs 26 to 31 of the case of Gujarat Urja Vikas Nigam Ltd. (supra) . Notwithstanding that the word "and" appearing between words "generating companies" and the words "refer any dispute" has been interpreted as 'or", the said case is not found to be an authority on the point that exercise of power under Section 86(1)(f) of the Electricity Act, 2003 was administrative function. The case of National Institute of Mental Health and Neuro Sciences (supra) was cited to show that the Supreme Court of India had held that selection committee does not discharge judicial or adjudicatory function, but the actions are administrative. The case of Jalour Singh (supra) was cited to demonstrate that Lok Adalats have no judicial or adjudicatory function and that the making of award is merely an administrative function. Similarly, the case of Manohar (supra) was also cited to bring home the point that State Information Commission performs adjudicatory functions and the case of Namit Sharma (supra) was cited to bring home the point that Information Commission performed adjudicatory duties. There is no quarrel with the ratio of the cited cases. However, in light of interpretation in the case of Utility Users' Welfare Association (supra) , wherein exercise of power under Section 86(1)(f) of the Electricity 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 such as would make it incapable of performing the functions under Section 86(1)(f) of the said Act ." It is not in dispute that on 21.09.2018 and 06.10.2018, the respondent no.2 Commission did not have Judicial Member.22) Under such circumstances, the Court is inclined to accept the submissions made by the learned counsel for the petitioner that in the light of the decision in the case of Utility Users' Welfare Association (supra) , the previous order dated 20.07.2016 passed in W.P. (C) 4148/2016 and order dated 08.03.2017 passed in I.A.(C) 1784/2016 would not constitute a binding precedent when orders dated 21.09.2018 and 06.10.2018 were passed by the respondent no.2 Commission.23) In light of the discussions above, the point of determination no. (b) is answered in the negative and in favour of the petitioner that the present writ petition is not barred under the principles of waiver, estoppel and acquiescence.24) The point of determination no. (c) is taken up now. In this regard, having arrived at a conclusion in connection with point of determination no. (b) that without there being a Judicial Member in the respondent no. 2 Commission, could not have undertaken judicial function as envisaged under Section 86(1)(f) of the Electricity Act, 2003. Therefore, this is a case where principles of coram non judice would apply in respect of orders dated 21.09.2018, 06.10.2018. Moreover, without entering into the issue as to whether the respondent no.2 Commission could have exercised power of review, which is conferred by the statute, but nonetheless, rejection of prayer for condonation of delay as well as consequential rejection of review petition and stay petition upon rejection of petition no. 2/2020, the Court is of the considered opinion that even while passing the order dated 11.02.2020, the respondent no.2 was performing adjudicatory function, without there being a Judicial Member in the Bench, which could not have been done as per the ratio laid down in the case of Utility Users' Welfare Association (supra).25) The learned senior counsel for the respondent no.1 had submitted from the Bar that under the provisions of the Assam Electricity Regulatory Commission (Conduct of Business) Regulations, 2004 the prescribed quorum was of two members. Accordingly, it is submitted that the orders impugned herein were passed by two Member Bench of the Commission 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 j

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udice, 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) and (e) are taken up together. In light of the discussions in connection with point of determination no. (a), (b) and (c), the Court is inclined to hold that adjudicatory process was indeed involved in passing of the orders dated 21.09.2018, 06.10.2018 and 11.02.2020 by the respondent no.2 Commission. However, as there was no Judicial Member in the respondent no.2 Commission, the said orders are found to be vitiated by principle of coram non judice.28) Thus, 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 by setting aside and quashing the said two orders. The point of determination no. (d) and (e) are answered accordingly.29) In light of the discussions above, the petitioner is found entitled to the reliefs as prayed for. Resultantly, the Court is inclined to reject the prayer(s) made in I.A.(C) 1784/2020. Accordingly, it is ordered as follows:-a. The orders dated 21.09.2018 and 06.10.2018 passed by the respondent no. 2 Commission in connection with Petition No. 4/2010, thereby referring the matter to arbitration by the honourable Sole Arbitrator are set aside and quashed.b. As the said orders dated 21.09.2018 and 06.10.2018 passed by the respondent no. 2 Commission are set aside and quashed, the prayer calling for interference with the order dated 11.02.2020, thereby rejecting petition no.2/2020, 3/2020 and 4/2020 are held to have been rendered infructuous. However, without expressing any opinion as to whether the power of review is available to the respondent no.2 Commission, which is left to be decided in an appropriate case.c. The parties are left to bear their own cost.d. Taking note of the inordinate delay in adjudication of petition no. 4 of 2010, it is made clear that this order shall not stand as a bar for the respondent no.1 to renew its prayer before the respondent no. 2 Commission for referring the matter to arbitration.30) Before parting with the records, it is hoped that the respondent no.2 Commission shall take note of the fact that the dispute before it was raised in the year 2010. Accordingly, in the event it decides to hear the matter, the Commission shall exercise its discretion to dispose of the matter as early as possible, if deemed appropriate, by taking up day to day hearing. However, in the event it exercises its discretion to refer the matter to arbitration, suitable advisory may be passed on to the learned Arbitral Tribunal to dispose of the matter as early as possible, preferably within the timeline suggested by it.
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