Madhya Pradesh High Court
Vidyut Upbhokta Association Society ... vs Union Of India (Uoi) And Ors. on 1 August, 2005
Equivalent citations: 2006(1)MPHT379
Author: Shantanu Kemkar
Bench: R.V. Raveendran, Chief Justice, Shantanu Kemkar
ORDER Shantanu Kemkar, J.
1. The petitioners have filed this petition for the following reliefs :-
(i) for a declaration that Sections 2 (j), 3, 4 and 5 of the M.P. Vidyut Sudhar Adhiniyam, 2000 (for short 'V.S. Act') are ultravires as these sections are inconsistent with Sections 84 and 85 of the Indian Electricity Act, 2003 (for short 'the Central Act' or 'Electricity Act') and therefore, stood repealed under Section 185 of the Electricity Act.
(ii) for a declaration that the post of Chairman of M.P. State Electricity Regulatory Commission be declared as vacant.
(iii) For a direction to first respondent to appoint the Chairman of the said Commission in accordance with Sections 84 and 85 of the Electricity Act.
The petitioners also contend that the continuance of the fourth respondent who is not a sitting or a retired High Court Judge but who is a retired Chief Secretary of the State of Madhya Pradesh on the post of Chairperson of the Commission is illegal on the ground that the said post can be held only by a person who is a sitting or a retired High Court Judge having regard to the provision of the Electricity Act.
2. The second respondent State of M.P. has filed its return. The third respondent Commission and the fourth respondent Chairperson of the Commission have filed a separate joint return. They have denied the contentions of the petitioner. They stated that initially the Commission was constituted under Section 17 of the Electricity Regulatory Commission Act, 1998 (for short 'Old Regulatory Commission Act'). The first Chairperson of the Commission appointed under the old Regulatory Commission Act was a retired Judge of the High Court. On coming into force of V.S. Act with effect from 3-7-2001, the said Commission continued to function, by virtue of the saving clause in Section 60 of the V.S. Act. Thereafter, the fourth respondent was appointed under Section 5 of the V.S. Act. They contend that the Sections 2 (j), 3, 4 and 5 of the V.S. Act are not inconsistent with Section 84 or 85 of the Electricity Act. They submit the appointment of fourth respondent as Chairman of the Commission by notification dated 11-3-2002 under the provisions of V.S. Act.
3. In order to appreciate the controversy raised by the petitioners the relevant provisions of the enactments referred, are extracted below :-
The Electricity Regulatory Commission Act, 1998:
Section 17. Establishment and incorporation of State Commission.-
(1) The State Government may, if it deems fit, by notification in the Official Gazette, establish, for the purposes of this Act, a Commission for the State to be known as the (name of the State) Electricity Regulatory Commission.
(2) The State Commission shall be a body corporate by the name aforesaid, having perpetual succession and a common seal, with power to acquire, hold and dispose of property, both movable and immovable, and to contract and shall, by the said name, sue or be sued.
(3) The head office of the State Commission shall be at such place as the State Government may, by notification in the Official Gazette, specify.
(4) The State Commission shall consist of not more than three members including the Chairperson.
(5) 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.
(6) The Chairperson and the Members of the State Commission shall be appointed by the State Government on the recommendation of a Selection Committee referred to in Section 18.
(7) Notwithstanding anything contained in Sub-section (5) or Sub-section (6), the State Government may appoint any person as the Chairperson from amongst persons who is or has been a Judge of a High Court:
Provided that no appointment under this sub-section shall be made except after consultation with the Chief Justice of that High Court.
(8) The Chairperson shall be the Chief Executive of the State Commission.
(9) The Chairperson or any other Member of the State Commission shall not hold any other office.
Section 18. Constitution of Selection Committee by State Government.-- (1) The State Government shall, for the purposes of selecting the Member of the State Electricity Commission, constitute a Selection 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 or a Member of the Central Electricity Authority - Member:
Provided that nothing contained in this clause shall apply to the appointment of a person as the Chairperson who is or has been a Judge of the High Court.
(2) to (6) Not relevant.
M.P. Vidyut Sudhar Adhiniyam, 2000.
2. Definitions.- In this Act, unless the context otherwise requires,-
(a)to(i)...
(j) "Member" means a member of the Commission and shall include the Chairperson of the Commission.
3. Establishment and constitution of Commission.-- (1) There shall be a Commission for the State known as the Madhya Pradesh State Electricity Regulatory Commission which shall be a body corporate with perpetual succession and a common seal and with power to acquire hold and dispose of property, both movable or immovable and to contract and shall, by the said name sue or be sued.
(2) The State Govt. shall by notification constitute the Commission. The Commission shall consist of a Chairperson and two members to be selected and appointed in the manner provided in this Act. The State Government shall designate any of the members as Chairperson. The inter se seniority amongst the two members shall be reckoned from the date of their respective appointment. In case two or more persons are selected at the same time, the State Govt. while making the appointment shall determine the seniority amongst them.
(3) The Chairperson and Members of the Commission shall be appointed whole time to exclusively discharge the functions of the Commission and they shall not hold any other office or undertake any other work.
(4) The State Commission constituted by the State Government by Notification No. 5726-F.3-20 XIII-98, dated 18-8-1998 issued under Sub-section (1) of Section 17 of the Central Act and existing on the date of commencement of this Act shall be the first commission for the purposes of this Act and shall be deemed to have been constituted under this Act for the remaining period of the term of the Chairperson and Members appointed.
(5) The headquarters of the Commission shall be at Bhopal, Madhya Pradesh and it may establish offices at other places. The Commission shall be entitled to conduct its proceedings, consultations and hearing in other places in the State.
4. Constitution of Selection Committee to select Chairperson and Members.- (1) The State Government shall, for the purposes of selecting the members of the Commission, constitute a selection committee consisting of-
(a) the Chief Secretary of the State - Chairman;
(b) the Chairman of the Central Electricity Authority or in his absence a member nominated by the Chairman of the Central Electricity Authority - Member;
(c) The Managing Director of a Public financial institution as set out in Sub-section (1) of Section 4A of the Companies Act, 1956 (1 of 1956) or the Managing Director of an undertaking owned or controlled by the Government of India engaged in the business of an Electricity Industry for funding financing of an electricity industry - Member.
(2) The State Government shall, within one month from the date of occurrence of any vacancy in the Commission by reason of death, resignation or removal and four months before the superannuation or the end of tenure of a Member, constitute the Selection Committee as specified in Sub-section (1) and make a reference to the Selection Committee for filling up of the vacancy.
(3) The Selection Committee shall finalize the selection of the member, within one month from the date on which the reference is made to it.
(4) The Selection Committee shall recommend a panel of two names of every vacancy referred to it.
(5) The State Government shall appoint the members from the panel of two names recommended by the Selection Committee for each vacancy and notify its decision within one month of the receipt of such recommendation.
Section 5. Condition for appointment as member of Commission.- (1) The Members of the Commission shall be the persons of ability, integrity and standing who have adequate knowledge and experience of, or have shown capacity in dealing with problems relating to engineering, economics, commerce, finance, law administration or management and further that all times the Commission shall consist of-
(a) One person having qualification and adequate experience in the field of engineering with specialization in generation or transmission or sub transmission or distribution of electricity; and
(b) the two other persons shall have qualifications and adequate experiences in any of the other disciplines namely, economics, commerce, finance, law, administration or management :
Provided that not more than one member shall be appointed under any of the specific disciplines mentioned in Clause (b).
(2) A person shall be disqualified from being appointed as a member of the Commission if the person is a member of Parliament or of any State Legislature or Chairperson or member of any local authority.
60. Effect of the Act on the Electricity Regulatory Commissions Act, 1998 (Central Act 14 of 1998).-
(1) On the commencement of this Act the State Electricity Regulatory Commission constituted under Section 17 of the Central Act shall exercise all powers and functions in accordance with the provisions of this Act and not under the Central Act.
(2) Except as provided in Sub-section (1) the provisions of the Central Act in so far it deals with the State Commission shall have no application in the State.
82. Constitution of State Commission.-
(1) Every State Government shall, within six months from the appointed date, by notification, constitute for the purposes of this Act, a Commission for the State to be known as the (name of the State) Electricity Regulatory Commission :
Provided that the State Electricity Regulatory Commission, established by a State Government under Section 17 of the Electricity Regulatory Commissions Act, 1988 (14 of 1998) and the enactments specified in the Schedule, and functioning as such immediately before the appointed date shall be the State Commission for the purposes of this Act and the Chairperson, Members, Secretary, and officers and other employees thereof shall continue to hold office, on the same terms and conditions on which they were appointed under those Acts :
Provided further that the Chairperson and other Members of the State Commission appointed, before the commencement of this Act, under the Electricity Regulatory Commissions Act, 1998 (14 of 1998) or under the enactments specified in the schedule, may, on the recommendations of the Selection Committee constituted under Sub-section (1) of Section 85, be allowed to opt for the terms and conditions under this Act by the concerned State Government.
(2) The State Commission shall be a body corporate by the name aforesaid, having perpetual succession and a common seal, with power to acquire, hold and dispose of property, both movable and immovable, and to contract and shall by the said name, sue or be sued.
(3) The head office of the State Commission shall be at such place as the State Government may, by notification, specify.
(4) The State Commission shall consist of not more than three members, including the Chairperson.
(5) The Chairperson and Members of the State Commission shall be appointed by the State Government on the recommendation of a Selection Committee referred to in Section 85.
84. Qualification for appointment of Chairperson and Members of State Commission.-
(1) 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.
(2) Notwithstanding anything contained in Sub-section (1), the State Government may appoint any person as the Chairperson from amongst persons who is, or has been, a Judge of a High Court:
Provided that no appointment under this sub-section shall be made except after consultation with the Chief Justice of that High Court.
(3) The Chairperson or any other Member of the State Commission shall not hold any other office.
(4) The Chairperson shall be the Chief Executive of the State Commission.
85. Constitution of Selection Committee to select Members of State Commission.-
(1) The State Government shall, for the purposes of selecting the Members of the State Commission, constitute a Selection 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.
185. Repeal and saving.-
(1) Save as otherwise provided in this Act, the Indian Electricity Act, 1910 (9 of 1910), the Electricity (Supply) Act, 1948 (54 of 1948) and the Electricity Regulatory Commissions Act, 1998 (14 of 1998) are hereby repealed.
(2)*** (3) The provisions of the enactments specified in the Schedule, not inconsistent with the provisions of this Act, shall apply to the States in which such enactments are applicable.
(4) The Central Govt. may, as and when considered necessary, by notification amend the schedule.
(5) Save as otherwise provided in Sub-section (2), the mention of particular matters in that section, shall not be held to be prejudice or affect the general applications of Section 6 of the General Clauses Act, 1897 (10 of 1897), with regard to the effect of repeals.
THE SCHEDULE ENACTMENTS [See Sub-section (3) of Section 185] (1) to (7) *** *** *** *** (8) The Madhya Pradesh Vidyut Sudhar Adhiniyam, 2000 (Madhya Pradesh Act No. 4 of 2001).
(9)*** *** *** *** ***
4. The only question that arises for consideration in this case is whether Sections 2 (j), 3, 4 and 5 of the V.S. Act are inconsistent with the provisions of the Electricity Act, 2003 and therefore, inapplicable.
5. Section 185 of the Electricity Act saves the provisions of the V.S. Act, which are not inconsistent with the provisions of the Electricity Act, in its applications in the State of Madhya Pradesh.
6. As far as Section 2(j) it is a definition provision and defines a 'member' as meaning a member of the Commission and shall include the Chairperson of the Commission. This definition is not inconsistent with the definition of member in Section 2(43) of the Central Act.
7. Section 3 of the V.S. Act relates to establishment and constitution of Madhya Pradesh State Electricity Regulatory Commission. Section 82 of the Central Act deals with the constitution of the State Commission. The learned Counsel for the petitioners did not point out any inconsistency between Section 3 of the V.S. Act and Section 82 of the Central Act.
8. Section 4 of the V.S. Act relates to constitution of Selection Committee to select, the Chairperson and members of the State Commission. According to the said section, the Selection Committee shall consist of (a) Chief Secretary of the State as Chairman, (b) the Chairman of the Central Electricity Authority or a member nominated by him, as member and (c) Managing Director of a Public Financial Institution, or the Managing Director of an undertaking owned or controlled by the Govt. of India engaged in the business in the Electricity Industry or funding of financing of an electricity industry. On the other hand, Section 85 of the Electricity Act, provides that the Selection Committee shall consists of (a) a person who has been a Judge of the High Court as the Chairperson, (b) the Chief Secretary of the concerned States, as a Member, and (c) the Chairperson of the Authority or the Chairperson of the Central Commission as member. There is thus, inconsistency between the provision of the Central Act and State Act in regard to constitution of the selection committee. It is therefore, clear that after the Electricity Act came into effect on 10-6-2003, Section 85 of the Electricity Act and not Section 4 of the V.S. Act will apply in regard to the Constitution of the Selection Committee for selecting the Chairperson/Members of the State Commission. It is however, will not affect any appointment or selection validly made by the Selection Committee constituted under the V.S. Act before the Electricity Act came into force. As noticed about the first proviso to Sub-section (1) of Section 82 of Electricity Act provides that the State Commission established by the State Govt. under the V.S. Act and functioning immediately before the appointed date shall be the State Commission for the purposes of the Electricity Act and the Chairperson and members thereof shall continue to hold office on the same terms and conditions on which they were appointed under that Act.
9. In fact, the State does not contest the position that the provisions of the V.S. Act will have to yield to the provisions of the Electricity Act to the extent of the provisions of the V.S. Act are inconsistent with the provisions of the Electricity Act. The State has also not disputed the position that after the Electricity Act came into existence, constitution of any Selection Committee for the purpose of selecting the members (including the Chairman of the State Commission) in future will have to be as per the provisions of Section 85 of the Electricity Act.
10. We will next deal with Section 5 of the V.S. Act. Sub-section (1) thereof provides that the members of the Commission shall be the persons of ability, integrity and standing who have adequate knowledge and experience of, or have shown capacity in dealing with problems relating to engineering, economics, commerce, finance, law, administration or management. Section 84(1) of the Electricity Act is also on the same lines. It provides that the Chairperson and 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.
11. But, there is one deviation in Section 84. Sub-section (2) thereof provides that notwithstanding anything contained in Sub-section (1), the State Government may appoint any person as the Chairperson from amongst persons who is, or has been, a Judge of a High Court. The effect of Sub-section (2) of Section 84 of Electricity Act is that if the Chairperson to be appointed is a person who is or has been a Judge of a High Court, then it will not be necessary to verify the ability, integrity and standing of such person or to verify whether he has adequate knowledge of, and have shown capacity in, dealing with problems relating to engineering, finance, commerce, economics, law or management. Sub-section (2) virtually creates a statutory presumption that a person who is or has been a Judge of a High Court is a person of ability and standing and has adequate knowledge in one of the prescribed fields, i.e., law. Except to the extent of relaxation of the provisions of Sub-section (1) providing for qualifications, in the case of High Court Judges, there is no difference between Section 5 (1) of the V.S. Act and Section 84(1) of the Electricity Act. It, therefore, follows that if and when a person, who has been or is a Judge of a High Court is to be appointed as the Chairperson of the State Commission, it will not be necessary for the Selection Committee to examine his ability, integrity and standing. But, this does not mean that only a person who has been a Judge of the High Court or who is a Judge of the High Court can be appointed as a Chairperson of the State Commission. Section 84(1) does not restrict the appointment to any particular category. It is, therefore, untenable to contend that after the Electricity Act came into force only a High Court Judge (present or former) can be appointed as Chairman or can continue as a Chairman. There is nothing irregular in fourth respondent continuing as Chairman of the Commission.
12. A close reading of Section 84 and Section 85 make it clear that the qualification prescribed for the appointment to the post of Chairperson is that the person should be of ability, integrity and standing and should have adequate knowledge and has shown capacity in dealing with problems relating to engineering, finance, commerce, economics, law or management. Sub-clause (2) of Section 84 further provides that the State Government may appoint any person as the Chairperson who is or has been a Judge of High Court and such appointment shall be made after consultation with the Chief Justice of that High Court. Proviso to Section 85(1) provides that constitution of Selection Committee under Section 85 shall not be required for the appointment of a person as the Chairperson who is or has been a Judge of the High Court. Thus on reading Section 84 (1) and (2) and proviso of Section 85, we find that it is not obligatory for the State Government to appoint only a sitting or retired Judge of the High Court as the Chairperson of the Commission. On the other hand, it provides that a Chairperson can be appointed if he fulfills qualifications provided under Section 84(1). However, the qualifications provided under Section 84(1) need not have to be followed, if the State Government appoints any sitting or retired Judge of the High Court as Chairperson.
13. Petitioners are not, therefore, entitled to any relief. Therefore, subject to the clarification in Paras 9 to 12 above, this petition is, disposed of.