(Prayer: This Civil Revision Petition is filed under Section 115 of CPC, praying to set aside the impugned order dated 03.07.2018, passed by the Additional Senior Civil Judge, Jamkhandi, in O.S.No. 56/2017 on I.A.No. 5/2017 and to allow the I.A.No. 5/2017 filed by the defendants/petitioners by allowing this CRP, with costs.)
1. The present respondent as a plaintiff has instituted a suit against the present petitioners arraying them as defendants in O.S.No. 56/2017 in the Court of the learned Additional Senior Civil Judge at Jamkhandi (for brevity hereinafter referred to as ‘the trial Court’) for the relief a specific performance of contract and as an alternate relief, for the costs. The present petitioners as defendants appeared in the suit and filed their written statement denying the plaint averments. Further, the defendants filed an application i.e. I.A.No.V in the said suit under Order VII Rule 11 read with Section 151 of Code of Civil Procedure, 1908, (for brevity hereinafter referred to as ‘CPC’), seeking for rejection of the plaint on the ground that, it was not maintainable in view of Section 145 of the Electricity Act, 2003 (for brevity hereinafter referred to as ‘the Act’). The trial Court after inviting objection to the said application and hearing both side, by its impugned order dated 03.07.2018, rejected the said application. Aggrieved by the said order, the defendants in the trial Court have preferred the present revision petition.
2. The respondent is being represented by his counsel.
3. Though this matter is listed today for Admission, however, with the consent from both sides, the matter is taken up for its final disposal.
4. Heard arguments from both sides. Perused the materials placed before this Court.
5. Learned counsel for the petitioners in his arguments submitted that, Section 145 of the Act when clearly mentions that the Civil Court has no jurisdiction to entertain any suit or proceeding which an Assessing Officer or an Appellate Authority or an Adjudicating Officer can decide. As such, in the instant case since the dispute is between the petitioners (defendants) which is a licensee and the plaintiff (respondent herein) which is a generating company, the said dispute has to be decided by the Adjudicating Officer appointed by the State Commission to whom the power of adjudication can be delegated by the State Commission.
6. Learned counsel for the respondent in his brief argument submitted that, even though the defendant No.1 is the licensee and the plaintiff is a generating company and the State Commission can appoint an Adjudicating Officer, but the said Adjudicating Officer cannot adjudicate the present dispute which falls under Section 86 of the Act, as such, the impugned order sustains.
7. Admittedly, the suit is for specific performance of a contract said to have been in existence between the plaintiff and the defendants. Under the said alleged contract the plaintiff has prayed for a direction against the defendants for commissioning of 49 kWp Solar Roof Top Photovoltaic System of the plaintiff and also for granting the ancillary relief of the profits. In the alternate he has prayed for awarding the costs of a particular sum. The present petitioners in their I.A.No. V filed under Order VII Rule 11 of CPC, have taken only the contention that in view of the bar under Section 145 of the Act, the suit before the Civil Court is not maintainable. Section 145 of the Act, reads as below:
“145. Civil Court not to have jurisdiction: No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an assessing officer referred to in section 126 or an appellate authority referred to in section 127 or the adjudicating officer appointed under this Act is empowered by or under this Act to determine and not injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.”
8. As admitted by both sides, the present dispute between the parties won’t fall either under Section 126 or Section 127 of the Act, as such, the bar for under those two Sections is not applicable. According to the learned counsel for the petitioners, the present dispute between the parties in the trial Court falls for the adjudication before the Adjudicating Officer appointed under the Act, as such, there is bar for the Civil Court to entertain the suit.
9. Appointment of Adjudicating Officer and who could be the Adjudicating Officer can be inferred from Section 143(1) of the Act which reads as below:
“143. Power to adjudicate-(1) For the purpose of adjudging under this Act, the Appropriate Commission shall appoint any of its Members to be an adjudication officer for holding an inquiry in such manner as may be prescribed by the Appropriate Government after giving any person concerned a reasonable opportunity of being heard for the purpose of imposing any penalty.”
10. The term appropriate Commission mentioned in Section 143 is defined under Section 2(4) of the Act, which reads as below:
“2. Definitions-In this Act, unless the context otherwise requires,
(4) “Appropriate Commission” means the Central Regulatory Commission referred to in sub-section (1) of section 76 or the State Regulatory Commission referred to in section 82 or the Joint Commission referred to in section 83, as the case may be;”
11. According to the said Section the State Regulatory Commission referred to in Section 82 of the Act is the Appropriate Commission in the instant case. Section 82 of the Act speaks about the Constitution of the State Commission. According to which, it is a body corporate and the State Government by notification constitutes the said State Commission for the purpose of the Act. The functions of the State Commission are detailed under Section 86 of the Act, which reads as below:
“86. Functions of State Commission-
(1) The State Commission shall discharge the following functions, namely:-
(a) determine the tariff for generation, supply, transmission and wheeling of electricity, wholesale, bulk or retail, as the case may be, within the State:
Provided that where upon access has been permitted to a category of consumers under Section 42 the State Commission shall determine only the wheeling charges and surcharge thereon, if any, for the said category of consumers;
(b) regulate electricity purchase and procurement process of distribution licensees including the price at which electricity shall be procured from the generating companies or licenses or from other sources through agreements for purchase of power for distribution and supply within the State;
(c) facilitate intra-State transmission and wheeling of electricity;
(d) issue licences to persons seeking to act as transmission licensees, distribution licensees and electricity traders with respect to their operations within the State;
(e) promote cogeneration and generation of electricity from renewable sources of energy by providing suitable measures for connectivity with the grid and sale of electricity to any person, and also specify for purchase of electricity from such sources, a percentage of the total consumption of electricity in the area of a distribution licensee;
(f) adjudicate upon the disputes between the licenses and generating companies and to refer any dispute for arbitration;
(g) levy fee for the purposes of this Act;
(h) specify State Grid Code consider with the Grid Code consistent with the Grid code specified under clause (h) of sub-section (1) of section 79;
(i) Specify or enforce standards with respect to quality, continuity and reliability of service by licensees;
(j) fix the trading margin in the intra-State trading of electricity, if considered, necessary;
(k) discharge such other functions as may be assigned to it under this Act.
(2) The 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) reorganization 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.”
12. According to the learned counsel for the petitioners, the dispute between the present parties falls under Section 86(1)(f) of the Act, since the defendant No.1 (petitioner No.1) is the licensee and the plaintiff (respondent herein) is the generating company.
A licensee is defined under Section 2 (39) of the Act in the following terms:
“2. Definitions-In this Act, unless the context otherwise requires,
(39) “licensee” means a person who has been granted a licence under Section 14;”
13. Section 14 speaks about grant of license which includes grating a licence to any person to distribute electricity as a distribution licensee. According to the learned counsel for the petitioners, the petitioner No.1 is a licensee for distributing electricity as a distribution licensee. Learned counsel for the respondent does not dispute the same. On the other hand he also submits that, the petitioner No.1 is the licensee under Section 14 of the Act.
A generating company is defined under Section 2 (28) of the Act on the following terms:
“2. Definitions-In this Act, unless the context otherwise requires.-
(28) “generating company” means any company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person, which owns or operates or maintains a generation station.”
The term “generate” and “generating station” are defined under Section 2(29) and 2(30) of the Act, respectively, as below:
“2. Definitions-In this Act, unless the context otherwise requires,-
(29) “generate” means to produce electricity from a generating station for the purpose of giving supply to any premises or enabling a supply to be so given;
(30) “generating station” or “station” means any station for generating electricity, including any building and plant with step-up transformer switch-gear, switch yard, cables or other appurtenant equipment, if any, used for that purpose and the site thereof; a site intended to be used for a generating station, and any building used for housing the operating staff of a generating station, and where electricity is generated by water power, includes penstocks, head and tail works, main and regulating reservoirs, dams and other hydraulic works, but does not in any case include any sub-station;”
14. Learned counsels from both sides fairly submits that, the plaintiff in the trial Court (respondent herein) since had a contract with the defendant No.1 (petitioner No.1 herein) for generation of electricity and sale of the said generated electricity to the defendant No.1 company in the plant/side identified for the said purpose, the plaintiff (respondent herein) falls under the definition of “generating station”. Therefore, learned counsels from both sides, fairly concedes that the dispute in the form of original suit pending in the trial Court is a dispute between the licensee and a generating Company.
15. Section 86(f) mentions that the State Commission shall discharge the function of adjudication upon the dispute between the licensees and the generating company and to refer any dispute for Arbitration. Therefore, prima facie and at this juncture the dispute in the form of a suit in the trial Court since being a dispute between the licensee and the generating company, may at the first instance appear to be a dispute which can be adjudicated by the State Commission under Section 86 of the Act. However, what is seen is that, the bar for the Civil Court is not for any matter falling under Section 86 of the Act, but it is only those matters falling under Section 126 and 127 of the Act or before the Adjudicating Officer appointed under the Act. Therefore, it is clear that, merely because a dispute falls under Section 86 of the Act ifso facto would not be act as a bar to the Civil Court to entertain the civil dispute. On the other hand, it has to be ascertained that the dispute falls before the Adjudicating Officer, appointed under the Act.
The Adjudicating Officer can have the power for adjudication through the delegation by the State Commission under Section 97 of the Act, which reads as below:
“97. Delegation-The Appropriate Commission may, by general or special order in writing, delegate to any Member, Secretary, officer of the Appropriate Commission or any other person subject to such conditions, if any, as may be specified in the order, such of its powers and functions under this Act (except the powers to adjudicate disputes under section 79 and section 86 and the powers to make regulations under section 178 or section 181) as it may deem necessary.”
16. A careful
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reading of the said Section would go to show that, though the Appropriate Commission (in the instant case it is the State Commission under Section 82 of the Act) may delegate to its Member (under Section 143 a Adjudicating Officer can be the Member of the Appropriate Commission), such of its powers and functions under the Act except the powers to adjudicate the disputes under Section and 79 Section 86 of the Act. Therefore, even though an Adjudicating Officer can discharge his power to adjudicate under Section 143, but he is prevented from adjudicating a dispute which falls under Sections 86 of the Act. As fairly conceded by both sides, the present dispute between the parties falls under Sections 86(f) of the Act. Since such dispute falling under Section 86 of the Act [including Section 86(f)] cannot be delegated to Adjudicating Officer under Section 97 of the Act, the bar under Section 145 of the Act that the matter which can be adjudicated by the Adjudicating Officer cannot be entertained by the Civil Court, does not apply in the instant case. The trial Court though has rejected the application with other reasons, but its finding that there is no bar for it to proceed with the matter cannot be found fault with. As such, I do not find any reason to interfere in the said impugned order. Accordingly, I proceed to pass the following order:- ORDER The Civil Revision Petition stands dismissed. In view of the disposal of the main petition, I.A.No. 1/2018 does not survive for consideration.