Appellate Tribunal For Electricity
The Nile Condominium Association vs Haryana Electricity Regulatory ... on 3 February, 2026
IN THE APPELLATE TRIBUNAL FOR ELECTRICITY
(Appellate Jurisdiction)
APPEAL No. 30 of 2022
Dated : 3rd February, 2026
Present: Hon'ble Ms. Seema Gupta, Technical Member
Hon'ble Mr. Virender Bhat, Judicial Member
In the matter of:
The Nile Condominium Association
Through its President
Sh. Dinesh Kumar Khare,
Authorized Signatory,
Sector-49, Gurgaon - 122018
Haryana ... Appellant
Versus
1. Haryana Electricity Regulatory Commission
Through its Secretary,
Commission Bays No. 33-36,
Sector-4, Panchkula - 134113
Haryana
Email: [email protected]
2. Haryana Vidyut Prasaran Nigam Ltd.
Through its M.D.
Shakti Bhawan, Sector-6,
Panchkula - 134113, Haryana
Email: [email protected]
3. Dakshin Haryana Bijli Vitran Nigam Ltd.
Through its M.D.
Vidyut Sadan, Vidyut Nagar,
Hisar - 125 005, Haryana
Email: [email protected] ... Respondent (s)
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Appeal No. 30 of 2022 Page 1 of 26
Counsel for the Appellant(s) : Bhagwat Prasad Agarwal
for App. 1
Counsel for the Respondent(s) : Anand K. Ganesan
Swapna Seshadri
Ritu Apurva
Ashwin Ramanathan
for Res. 2
Rimali Batra
Nikita Choukse
Manuj Kaushik
Divya Anand
Mahip Singh Sikarwar
Iti Agarwal
Tushar Mathur
Paritosh goel
for Res. 3
JUDGMENT
PER HON'BLE MR. VIRENDER BHAT, JUDICIAL MEMBER
1. The Appellant, an association of the residents in Nile Condominium situated in Sector 49, Gurugram, has filed this appeal against the order dated 28th March, 2019 passed by 1st Respondent - Haryana Electricity Regulatory Commission (hereinafter referred to as "the Commission") in compliant filed by Association under Section 142, 146 & 149 of the Electricity Act, 2003 seeking action against the officials of 2nd Respondent and 3rd Respondent for not complying with the order dated 28th June, 2016 passed by Consumer Grievance Redressal Forum (in short CGRF) with
------------------------------------------------------------------------------------------------------------------ Appeal No. 30 of 2022 Page 2 of 26 further direction to the respondents 2 & 3 to issue revised bill in consonance with the said order dated 28th June, 2016 of CGRF. Vide said order, the Commission has disposed off the petition as having become infructuous.
2. Facts of the case, shorn of unnecessary details, are noted herein below.
3. The Appellant Association has obtained an electricity connection from 3rd Respondent Dakshin Haryana Bijli Vitran Nigam Ltd. in the name of Nile Omaxe Cooperative Society with a sanction load of 1800KW at 11 KV in August, 2009 after paying approximately Rs.26 lakhs as sharing cost for erection of power house in Sector 38, Gurugram. It appears that there used to be interruption in the power supply to the Condominium due to poor quality of AB cable and excessive load on power house in Sector 38. Accordingly, on the representations of Appellant and its willingness to bear the cost of laying of cable from Sector 47 power house to the society, the electricity connection to the Condominium was proposed to be shifted to newly commissioned power house at Sector 47 in Gurugram. However, the electricity connection given to the Condominium from Sector 47 power house was considered to be a new connection and accordingly, the 2nd Respondent directed the 3rd Respondent to ask the Appellant association
------------------------------------------------------------------------------------------------------------------ Appeal No. 30 of 2022 Page 3 of 26 to deposit sharing cost of Rs.44,66,500/-. This was after adjusting the amount of Rs.26 lakhs initially deposited by the Appellant as sharing cost. This direction was based on the memo dated 4th September, 2014 issued by 2nd Respondent vide which instructions had been issued by 3rd Respondent for standardization of the procedures for preparing estimate and recovery of infrastructure cost on normative basis.
4. According to the Appellant, this memo dated 4th September, 2014 was not applicable to it and it had only asked for shifting of the connection from one power house to another power house and not for a new connection or enhancement of load. However, the Appellant was constrained to deposit the amount of Rs.45 lakhs under protest in order to get the electricity connection to its Condominium shifted from power house at Sector 38, Gurugram to Sector 47 power house for un-interrupted electricity supply.
5. Thereafter, the Appellant sought refund of the said amount from the Respondents and made various representations in this regard vide letters dated 27th July, 2015, 25th August, 2015, 11th January, 2016 and 3rd February, 2016, but in vain.
6. Accordingly, it approached the Consumer Grievance Redressal Forum of Dakshin Haryana Bijli Vitaran Nigam, Hisar vide complaint No.
------------------------------------------------------------------------------------------------------------------ Appeal No. 30 of 2022 Page 4 of 26 1352 of 2016 for refund of the said amount from the 2nd Respondent and 3rd Respondent. Upon considering the contention of both the parties, the CGRF passed order dated 28th June, 2016, the relevant portion of which is as under:-
"After going through the case file, the information/documents supplied by the applicant as well as by the respondent on the date of hearing and discussion held during the course of hearing in the case, the Forum finds that the version of the consumer that he is not concerned with HVPN does not hold water and the version of respondent SDO that the amount was not deposited with the DHBVN is correct. However, the Forum is of the opinion that the consumer is directly in touch with the DHBVN and when it comes to the refund of certain amount got deposited from the consumer whether at the instance of DHBVN or HVPN which subsequently turns out to be wrong, the consumer should not face harassment in the matter. Since, the HERC has held that the letter No. Ch- 40/DSO-434/Vol-III/SE/RAUE/F-136 dated 04/09/2014 issued by Dy. Secy./Op. HVPN, Panchkula is not in accordance with HERC regulation of 2005, the consumer is entitled to get the refund of amount. In order to avoid harassment and inconvenience to the
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consumer, therefore, the Forum directs that the amount deposited by the consumer be refunded by DHBVN and the DHBVN to lodge claim with the HVPN to get the amount back. However, DHBVN is entitled in terms of orders of HERC in the cases referred above, to charge the share cost from the consumer strictly as per HERC (Duty to supply electricity on request, power to recover expenditure incurred in providing supply) Regulation, 2005 along with its amendments. Set off is also allowed. The case is closed. The Forum disposes off the petitioner without any cost on either side."
(Emphasis supplied)
7. Thus, CGRF had directed the 3rd Respondent to refund to the Appellant the amount deposited by it while granting liberty to 3rd Respondent to claim the said amount from the 2nd Respondent.
8. We may note here that memo dated 4th September, 2014 was challenged by several consumers before the Commission by way of case Nos. 8, 10 & 11 of 2015 wherein following order dated 21st September, 2015 was passed by the Commission.
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"Further, on perusal of Regulation 1.2 HERC (Duty to supply electricity on request, Power to recover expenditure incurred in providing supply & Power to require security) Regulations, 2005, as reproduced above, it is clear that the ibid Regulations are not applicable to the Transmission Licensee i.e. Respondent No. 1. Further, as per Regulation 3.4, the Distribution Licensee shall have necessary commercial arrangement with the Transmission Licensee in case required supply is at Extra High Voltage (66 kV & above) for extension of works, to the network of the Transmission Licensee. Moreover, Sr. No. 3 of Annexure-1 of the ibid Regulations clearly stipulates that in case there is a need to enhance the capacity of existing power transformer or provide new power transformer, the Licensee can charge the cost of enhancing the capacity of existing power transformer or providing new power transformer, with or without bay extension, along with associated equipment and the cost of erecting or extending such line, for providing the electric supply to the consumer calculated as per Part-1 of this Annexure. There is no provision of recovery of normative share cost from the consumers in these Regulations. Moreover, any
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charges which are to be recovered from the consumer are necessarily required to be got approved from the Commission before these can be notified.
In view of the above observations, the Commission is of the considered view that the impugned instructions i.e. the instructions issued by the Deputy Secretary/Op., HVPNL, Panchkula vide his Memo. No. Ch.-40/DSO-434/Vol.- III/SE/RAU/F-136 dated 04.09.2014, are not in accordance with HERC (Duty to supply electricity on request, Power to recover expenditure incurred in providing supply) Regulations, 2005 along with its amendments. The Commission, therefore, directs the Respondent No. 1 to withdraw the impugned instructions from the date of its issue. Further, the Commission directs Respondent No. 2 i.e. Discoms, to charge the share cost from the consumers strictly as per HERC (Duty to supply electricity on request, Power to recover expenditure incurred in providing supply) Regulations, 2005 along with its amendments."
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9. CGRF had referred to and relied upon this order dated 21.09.2015 of the Commission while passing the order dated 28.06.2016 in favour of the Appellant.
10. Since the said order passed by CGRF remained to be complied with by 3rd Respondent, the Appellant approached the Commission by way of complaint/petition under Section 142, 146 & 149 of the Electricity Act, 2003 with the following prayers :-
(a) Initiate an inquiry against the respondents, every person who at the time the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company for violating Electricity Act, 2003, Regulation 2.52, 2.56 and 2.57 of Haryana Electricity Regulatory Commission (Guidelines for establishment of Forum for Redressal of Grievances of the Consumers, Electricity Ombudsman and Consumer Advocacy) Regulations, 2016 and order dated 28.06.2016 passed by the Forum and take the action against them under section 142, 146 and 149 of Electricity Act, 2003 and;
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(b) Direct the respondents to issue the revised bill in terms of the order dated 28.06.2016 and in terms of the Regulation 2.52 of the aforesaid Regulation, 2016 and after the expiry of 21 days of receiving of the judgment the respondent may kindly be directed to pay the interest @ 18% p.a. and;
11. It appears that the 3rd Respondent had challenged the order dated 28th June, 2016 of CGRF before the High Court of Punjab and Haryana in CWP No. 26961 of 2018. The Writ Petition had come up for hearing before the High Court on 9th January, 2019 on which date following order was passed.
"... Precise contention raised is that since the amount in question had not even been deposited by the consumer with the petitioner/Nigam, no directions could have been issued for refund of the amount at the hands of the Nigam. It is urged that the remedy with the consumer was to have approached HVPNL/respondent No. 3 to claim refund in accordance with law.
Notice of motion, returnable for 14.03.2019."
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12. On 10th January, 2019, the Commission passed following orders in case No. 24 of 2016.
"Further, apart from a few consumers who had approached this Commission, all other consumers have accepted the demand of HVPNL and complied with the same without any challenge. Therefore, as a special case, this Hon'ble Commission decides to exercise its inherent powers, to hold that Order dated 21.09.2015 will have prospective effect and will not affect in any manner the amounts levied and collected by HVPNL from consumers under the Memo dated 04.09.2014..."
13. The Commission, thus modified its order dated 21.09.2015 and held it to be prospective in operation which implied that it would not impact the sharing cost received by 2nd Respondent till 21.09.2015 in terms of memo dated 04.09.2014.
14. Since memo dated 4th September, 2014 was in force till 21st September, 2015 and was implemented during that period of time, the difficulty had arisen with regards to the treatment to be given to the consumers from whom sharing cost had been realized in terms of memo dated 4th September, 2014. It is in this regard that the Commission passed
------------------------------------------------------------------------------------------------------------------ Appeal No. 30 of 2022 Page 11 of 26 the above noted order dated 10th January, 2019 thereby holding that the order dated 21st September, 2015 will have prospective operation only and will not effect in any manner sharing cost levied and collected by 2nd Respondent from consumers under the memo dated 4th September, 2014.
15. The writ petition No. 2696 of 2018 filed by 3rd Respondent was disposed off by the High Court vide order dated 06.02.2023 as infructuous in view of the order dated 21st September, 2015 passed by the Commission thereby holding that instructions contained in memo dated 4th September, 2014 and not in accordance with the HERC Regulation, 2005. Said order of the High Court is extracted herein below :-
"The present petition has been filed under Articles 226/227 of the Constitution of India, 1950 for issuance of a writ in the nature of Certiorari raising a challenge to the order dated 28.06.2016 passed in Case No. DH-CGRF - 1352/2016 by the Forum for redressal of consumer grievance, Dakshin Haryana Bijli Vitran Nigam Established (CGRF) under Section 42(5) of the Electricity Act, 2003.
Learned counsel for the petitioner contends that the order in question has already been set aside by the Haryana Electricity
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Regulatory Commissioner and as such, the present petition has become infructuous.
Disposed of as having rendered infructuous."
16. It is in these facts and circumstances of the case that the Commission observed in the impugned order dated 28th March, 2019 that the CGRF had based its order dated 28th June, 2016 upon the Commissions' order dated 21st September, 2015 which was held to be perspective in operation by the Commission in subsequent order dated 10th January, 2019. Accordingly, the Commission concluded that the order dated 28th June, 2016 passed by CGRF had become infructuous and thus, disposed of the complaint/petition of the Appellant association.
17. We have heard Learned Counsel for the Appellant as well as the Learned Counsels appearing for Respondent Nos. 2 & 3. We have also perused the impugned order as well as the written submissions filed by the Learned Counsels.
Our Analysis
18. We are unable to find any fault with the impugned order dated 28th March, 2019 of the Commission.
19. It is true that vide order dated 28th June, 2016, CGRF directed the 3rd Respondent to refund to the Appellant the amount deposited by it with
------------------------------------------------------------------------------------------------------------------ Appeal No. 30 of 2022 Page 13 of 26 liberty to the 3rd Respondent to claim the said amount later on from the 2nd Respondent. However, it is to be noted that CGRF had based the said order upon order dated 21st September, 2015 of the Commission passed in petition Nos. 8, 10 & 11 of 2015 in which the Commission has held that the memo dated 4th September, 2014 was not in accordance with the HERC (Duty to Supply Electricity on Request, Power to Recover Expenditure incurred in Providing Supply) Regulations, 2005 along with its amendments and accordingly directed the Respondent - Discom to withdraw the instructions contained in the said memo from the date of its issue. As already noted herein above, the said order dated 21st September, 2015 was later on modified by the Commission vide order dated 10th January, 2019 passed in case No., 24 of 2016 by holding that the said order dated 21st September, 2015 will have prospective operation only and will not effect in any manner the amount levied and collected by Discom from consumers under memo dated 4th September, 2014.
20. We have also noted herein above that the 3rd Respondent had assailed the order dated 28th June, 2016 of CGRF before the High Court of Punjab and Haryana by way of CWP No. 26961 of 2018 which came to be disposed off as having been rendered infructuous by virtue of order dated 10th January, 2019 of the Commission. Manifestly, in case the
------------------------------------------------------------------------------------------------------------------ Appeal No. 30 of 2022 Page 14 of 26 Commission would not have passed the order dated 10th January, 2019 thereby modifying the earlier order dated 21st September, 2015, the writ petition of 3rd Respondent would not have disposed off as infructuous by the High Court and would have been decided on merits.
21. It appears that the Appellant did not object to the passing of order dated 6th February, 2023 by the High Court.
22. When the foundation of the order dated 28th June, 2016 passed by CGRF i.e. the order dated 21st September, 2015 of the Commission, got shaken by way of the subsequent order dated 10th January, 2019 of the Commission, the order of the CGRF became ineffective and not executable. It clearly lost its legs to stand upon.
23. We find that one of the prayers made by the Appellant in this appeal is to declare the order dated 10th January, 2019 of the Commission passed in case No. 24 of 2016 as illegal, arbitrary and to set aside the same.
24. From the averments of the Appellant itself in the memo of appeal, we find that during the hearing of the petition before the Commission (in which the impugned order dated 28th March, 2019 has been passed) on 11th July, 2017, the Appellant was informed about the pendency of case No. 24 of 2016 and a request for adjournment was made on behalf of 3rd Respondent till the final decision in the said case No. 24 of 2016 which
------------------------------------------------------------------------------------------------------------------ Appeal No. 30 of 2022 Page 15 of 26 was acceded to by the Commission. Despite the same, the Appellant chose not to appear in case No. 24 of 2016 to contest the prayer of the 3rd Respondent. In fact, it appears that the proceedings of the instant petition before the Commission were adjourned from time to time till final order was passed by the Commission in case No. 24 of 2016 on 10th January, 2019 which is indicative of the fact that the Commission as well as the parties were waiting for the outcome of case No. 24 of 2016. It is, after the passing of order dated 10.01.2019 in case No. 24 of 2016 that the instant petition was taken up by the Commission and disposed off vide impugned order dated 28th March, 2019.
25. Further, the said order dated 10th January, 2019 of the Commission in case No. 24 of 2016 appears to be legally sound and not suffering from any infirmity. Nothing has been pointed out by the Learned Counsel for the Appellant in the said order which may persuade us to hold that the same is not a legally sound order. By way of the said order dated 10th January, 2019, what the Commission has done, is that, it sought to balance the competing rights of the parties by saying that the earlier order dated 21st September, 2015 would have only prospective operation, thereby saving the transactions effected prior to the passing of the said order dated 21st September, 2015 in terms of the memo dated 4th September, 2014. In
------------------------------------------------------------------------------------------------------------------ Appeal No. 30 of 2022 Page 16 of 26 doing so, the Commission has invoked the doctrine of "prospective over- ruling" which has been succinctly elaborated and explained by the Hon'ble Supreme Court in the celebrated case of Golak Nath Vs. State of Punjab : (1967) 2 SCR 762, AIR 1967 SC 1643 in the following words :-
"45. There are two doctrines familiar to American Jurisprudence, one is described as Blackstonian theory and the other as "prospective over-ruling" which may have some relevance to the present enquiry. Blackstone in his Commentaries, 69 (15th Edn., 1809) stated the common law rule that the duty of the Court was "not to pronounce a new rule but to maintain and expound the old one". It means, the Judge does not make law but only discovers or finds the true law. The law has always been the same. If a subsequent decision changes the earlier one, the latter decision does not make law but only discovers the correct principle of law: The result of this view is that it is necessarily retrospective in operation. But Jurists, George F. Canfield, Robert Hill Freeman, John Henry. Wigmore and Cardozo have expounded the doctrine of "prospective over-ruling" and suggested it as "a useful judicial tool". In the words of Canfield the said expression means:
"...a Court should recognize a duty to announce a new and better rule for future transactions whenever the court has reached the conviction that on old rule (as established by the precedents) is unsound even though
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feeling compelled by stare decisis to apply the old and condemned rule to the instance case and to transactions which had already taken place".
48. Let us now consider some of the objections to this doctrine. The objections are:
(1) the doctrine involved legislation by courts; (2) it would not encourage parties to prefer appeals as they would not get any benefit therefrom; (3) the declaration for the future would only be obiter; (4) it is not a desirable change; and (5) the doctrine of retroactivity serves as a break on courts which otherwise might be tempted to be so fascile in overruling. But in our view, these objections are not insurmountable. If a court can overrule its earlier decision -- there cannot be any dispute now that the court can do so -- there cannot be any valid reason why it should not restrict its ruling to the future and not to the past.
Even if the party filing an appeal may not be benefited by it, in similar appeals which he may file after the change in the law he will have the benefit. The decision cannot be obiter for what the court in effect does is, to declare the law but on the basis of another doctrine restricts its scope. Stability in law does not mean that injustice shall be perpetuated. An illuminating article on the subject is found in Pennsylvania Law Review.
49. It is a modern doctrine suitable for a fast moving society. It does not do away with the doctrine of stare decisis, but confines it to past transactions. It is true that in one sense the court only declares the law, either customary or statutory or personal law.
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While In strict theory it may be said that the doctrine Involves making of law, what the court really does is to declare the law but refuses to give retroactivity to it. It is really a pragmatic solution reconciling the two conflicting doctrines, namely, that a court finds law and that it does make law. It finds law but restricts its operation to the future. It enables the court to bring about a smooth transition by correcting its errors without disturbing the impact of those errors on the past transactions. It is left to the discretion of the court to prescribe the limits of the retroactivity and thereby it enables it to mould the relief to meet the ends of justice.
52. As this Court for the first time has been called upon to apply the doctrine evolved in a different country under different circumstances, we would like to move warily in the beginning. We would lay down the following propositions: (1) The doctrine of prospective overruling can be invoked only in matters arising under our Constitution; (2) it can be applied only by the highest Court of the country i.e. the Supreme Court as it has the constitutional jurisdiction to declare law binding on all the courts in India; (3) the scope of the retroactive operation of the law declared by the Supreme Court superseding its "earlier decisions is left to its discretion to be moulded in accordance with the justice of the cause or matter before it."
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26. The said doctrine had again come up for discussion before the apex court in Kailash Chand Sharma Vs. State of Rajasthan : (2002) 6 SCC 562 and it was observed :-
"40. Arguments were addressed before us on the contours and limitations of the doctrine of prospective overruling applied in our country for the first time in Golak Nath v. State of Punjab [AIR 1967 SC 1643 : (1967) 2 SCR 762] in the context of invalidity of certain constitutional amendments and extended gradually to the laws found unconstitutional or even to the interpretation of ordinary statutes. The sum and substance of this innovative principle is that when the Court finds or lays down the correct law in the process of which the prevalent understanding of the law undergoes a change, the Court, on considerations of justice and fair deal, restricts the operation of the new-found law to the future so that its impact does not fall on the past transactions. The doctrine recognises the discretion of the Court to prescribe the limits of retroactivity of the law declared by it. It is a great harmonizing principle equipping the Court with the power to mould the relief to meet the ends of justice. Justification for invoking the doctrine was also found in Articles 141 and 142 which as pointed out in Golak Nath case [AIR 1967 SC 1643 :
(1967) 2 SCR 762] are couched in such wide and elastic terms as to enable this Court to formulate legal doctrines to meet the ends of justice. In the aftermath of Golak Nath case [AIR 1967 SC 1643: (1967) 2 SCR 762J] we find quite an illuminating and
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analytical discussion of the doctrine by Sawant, J. in Managing Director, ECIL v. B. Karunakar[(1993) 4 SCC 727: 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] . The learned Judge prefaced the discussion with the following enunciation: (SCC p. 760, para
34) "It is now well settled that the courts can make the law laid down by them prospective in operation to prevent unsettlement of the settled positions, to prevent administrative chaos and to meet the ends of justice."
27. In the case of Ashok Kumar Gupta Vs. State of U.P. (1997) 5 SCC 201, the apex court held that even though the principle of unamendability of the fundamental rights under Article 368 of the Constitution laid down in Golak Nath case was over-ruled in KesavanandaBharati Vs. State of Kerala 1973 4 SCC 225 the doctrine of prospective over-ruling was upheld. We quote hereunder the relevant portion of the said judgement.
"54. It is settled principle right from Golak Nath [(1967) 2 SCR 762 : AIR 1967 SC 1643) ratio that prospective overruling is a part of the principles of constitutional canon of interpretation. Though Golak Nath ratio of unamendability of fundamental rights under Article 368 of the Constitution was overruled in KesavanandaBharati case [KesavanandaBharati v. State of Kerala, (1973) 4 SCC 225 : 1973 Supp SCR 1] the doctrine of prospective overruling was upheld and followed in several
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decisions. This Court negatived the contention in Golak Nath case that prospective overruling amounts to judicial legislation. Explaining the Blackstonian theory of law, i.e., Judge discovers law and does not make law, and the efficacy of prospective overruling at p. 808 placitum D to H, this Court by a bench of eleven Judges had held that the doctrine of prospective overruling is a modern doctrine and is suitable for a fast- moving society. It does not do away with the doctrine of stare decisis but confines it to past transactions. While in strict theory, it may be said that the doctrine involves the making of law, what a court really does is to declare the law but refuses to give retrospectivity to it. It is really a pragmatic solution reconciling the two conflicting doctrines, namely, that a court finds law and that it does make the law. It finds the law but restricts its operation to the future. It enables the courts to bring about a smooth transition by correcting the errors without disturbing the impact of those errors on past transactions. By implication of this doctrine, the past may be preserved and the future protected. The Constitution does not expressly or by necessary implication speak against the doctrine of prospective overruling. Articles 32(4) and 142 are designed with words of width to enable this Court to declare the law and to give, such direction or pass such orders as are necessary to do complete justice."
28. Emphasizing that the doctrine of prospective over-ruling would not be applicable only to the matter arising under the Constitution but also to
------------------------------------------------------------------------------------------------------------------ Appeal No. 30 of 2022 Page 22 of 26 the matters arising under the statues as well, the Hon'ble Supreme Court in Sarwan Kumar and Anr. Vs. Madan Lal Aggarwal : (2003) 4 SCC 147 observed as under :-
15. ................The doctrine of "prospective overruling" was initially made applicable to the matters arising under the Constitution but we understand the same has since been made applicable to the matters arising under the statutes as well.
Under the doctrine of "prospective overruling" the law declared by the Court applies to the cases arising in future only and its applicability to the cases which have attained finality is saved because the repeal would otherwise work hardship to those who had trusted to its existence. Invocation of doctrine of "prospective overruling" is left to the discretion of the court to mould with the justice of the cause or the matter before the court."
29. The following observations of the Hon'ble Supreme Court in Somalya Organics (India) Ltd. Vs. State of Uttar Pradesh : (2001) 5 SCC 519 are also relevant on this aspect and are extracted herein below :-
"27. In the ultimate analysis, prospective overruling, despite the terminology, is only a recognition of the principle that the court moulds the reliefs claimed to meet the justice of the case
-- justice not in its logical but in its equitable sense. As far as this country is concerned, the power has been expressly conferred by Article 142 of the Constitution which allows this
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Court to "pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it". In exercise of this power, this Court has often denied the relief claimed despite holding in the claimants' favour in order to do "complete justice".
28. Given this constitutional discretion, it was perhaps unnecessary to resort to any principle of prospective overruling, a view which was expressed in Narayanibaiv. State of Maharashtra [(1969) 3 SCC 468] at p. 470 and in Ashok Kumar Gupta v. State of U.P. [(1997) 5 SCC 201 : 1997 SCC (L&S) 1299] In the latter case, while dealing with the "doctrine of prospective overruling", this Court said that it was a method evolved by the courts to adjust competing rights of parties so as to save transactions "whether statutory or otherwise, that were effected by the earlier law". According to this Court, it was a rule "of judicial craftsmanship with pragmatism and judicial statesmanship as a useful outline to bring about smooth transition of the operation of law without unduly affecting the rights of the people who acted upon the law operated prior to the date of the judgment overruling the previous law".
Ultimately, it is a question of this Court's discretion and is, for this reason, relatable directly to the words of the Court granting the relief.
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29. Reading the two paras 89 and 90 together it does appear that this Court regarded the declaration of the provisions being illegal prospectively as only meaning that if the States had already collected the tax they would not be liable to pay back the same. It is the States which were protected as a result of the declaration for otherwise on the conclusion that the impugned Acts lacked legislative competence the result would have been that any tax collected would have become refundable as no State could retain the same because levy would be without the authority of law and contrary to Article 265 of the Constitution. At the same time, it was clearly stipulated that the States were restrained from enforcing the levy any further. ............."
30. In view of the legal principal enunciated by the apex court in the above noted judgements with regards to the applicability of the doctrine of prospective over-ruling, no legal lacuna can be found in the order dated 10th January, 2019 passed by the Commission in case No. 24 of 2016. Therefore, we do not find any merit in the contention of the Appellant that the said order of the Commission is illegal or arbitrary. Conclusion
31. Thus, we find that since the CGRF had based its order dated 28.06.2016 upon the order dated 21.09.2015 of the Commission which stood modified by subsequent order dated 10.01.2019 of the Commission,
------------------------------------------------------------------------------------------------------------------ Appeal No. 30 of 2022 Page 25 of 26 the Commission was right in holding that the order dated 28th June, 2016 of CGRF has become infructuous and un-executable.
32. Considering the above discussion, we do not find error or infirmity in the order of the Commission. The appeal sans any merit and is hereby dismissed.
Pronounced in the open court on this 3rd day of February, 2026.
(Virender Bhat) (Seema Gupta)
Judicial Member Technical Member (Electricity)
✓
REPORTABLE / NON REPORTABLE
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