Gujarat High Court
Dakshin Gujarat Vij Co Ltd - Dgvcl & 2 vs Bayer Vapi Private Limited (Bvpl) & 2 on 3 July, 2015
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/CA/2179/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR JOINING PARTY) NO. 2179 of 2015
In SPECIAL CIVIL APPLICATION NO. 7117 of 2014
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DAKSHIN GUJARAT VIJ CO LTD - DGVCL & 2....Applicant(s)
Versus
BAYER VAPI PRIVATE LIMITED (BVPL) & 2....Respondent(s)
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Appearance:
MR KAMAL B TRIVEDI, SR ADVOCATE WITH MR PREMAL R JOSHI,
ADVOCATE for the Applicant(s) No. 1 - 3
MR ANAL S SHAH, ADVOCATE for the Respondent(s) No. 3
MR SUNIT SHAH WITH MR NV GANDHI, ADVOCATE for the Respondent(s)
No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 03/07/2015
ORAL ORDER
Yesterday in the captioned matter the hearing was concluded and the following order was passed.
"At the outset, learned senior counsel Mr.K.B. Trivedi assisted by learned advocate Mr.Premal Joshi limits the present application to the prayer in paragraph 17(a) which reads as under.
"Be plesaed to implead Central Electricity Authority as Respondent no. 5 in Special Civil Application no. 7117/2014."
Learned counsels for the applicants, learned advocate Mr.Sunit Shah for respondent Nos.1 and 2 and learned advocate Mr.Nishidh Patel for learned advocate Mr.Anal Shah who has authority to appear on behalf of learned advocate who has otherwise filed leave note, were heard in extenso.
Page 1 of 13 C/CA/2179/2015 ORDERArguments concluded. Reserved for order."
2. The present Civil Application is filed with the aforesaid prayer to implead the Central Electricity Regulatory Authority as party respondent in Special Civil Application No.7117 of 2014. The three applicants herein are Dakshin Gujarat Vij Company Limited, Gujarat Energy Transmission Corporation Limited and State Load Dispatch Centre through its Chief Engineer, who are the original respondent Nos.1, 2 and 3 respectively in the said Special Civil Application. Applicant No.1 is a distribution licensee which operates and maintains the distribution system for supply of electricity to the consumers in the licensed area, having been so authorized. Applicant No.2 is a body constituted under Section 31 of the Electricity Act, 2003 whereas applicant No.3 performs function of system operation, exercising powers and discharging duties under the Electricity Act, 2003.
3. For deciding the issue of impleadment of the proposed party-the Central Electricity Regulatory Authority, the controversy in Special Civil Application No.7117 of 2014, the developments that have taken place in the said proceedings so far, and the attendant facts may be noted with relevance. The petitioner in the Special Civil Application is a company, a consumer of electricity. The dispute raised by the petitioner is about transmission of electricity through short term open access, a system regulated by the Regulations framed by the Gujarat Electricity Page 2 of 13 C/CA/2179/2015 ORDER Regulatory Commission by its Notification No.03/2011 in exercising powers under Section 181 of the Electricity Act, 2003, known as the Terms and Conditions of Intra-State Open Access Regulations, 2011.
3.1 By communication dated 18th March, 2014 respondent No.2-Gujarat Energy Transmission Corporation Limited stopped the Short Term Open Access facility availed to the petitioner company and other industries on the ground of rise in the system load demand leading to Gird constrains in the upstream network, making it not feasible to continue the said facility. The prayers made in the petition in the controversy stated above in nutshell were three folds. First, the petitioner prayed for direction to set aside the said communication dated 18th March, 2014 praying further to lift ban imposed against the Short Term Open Access; the second payer was for a direction to respondent No.4-Gujarat Electricity Regulatory Commission to hold an inquiry into the genuineness of the claim of constrain in the upstream network. The third prayer was for direction to respondent No.2- Gujarat Energy Transmission Corporation Limited to separate the management control of respondent No.3 from respondent No.2 in pursuance of Central Electricity Regulatory Commission communication dated 11th August, 2009 to ensure impartial function of respondent No.2, etc. 3.2 This Court passed common order dated 21st May, 2014 in Special Civil Application No.7117 of 2014 Page 3 of 13 C/CA/2179/2015 ORDER (with another Special Civil Application Nos.7118 and 7119 of 2014 filed by the other industrial companies in respect of same subject matter and relief) directed the Central Electricity Authority to carry out the investigation and hold inquiry in the subject matter dispute of the petitioner. The Central Electricity Authority thereafter submitted its report.
3.3 While the petitioner of Special Civil Application No.7117 of 2014 had approached this Court, certain other companies had filed petitions before Gujarat Electricity Regulatory Commission (GERC) being Petition No.1407 of 2014 and allied matters which came to be decided by the Commission as per its order dated 16th January, 2015. The GERC in that order declared the action of curtailment of Open Access facility as illegal and arbitrary, further directing the State Load Dispatch Centre to grant Short Term Open Access facility to the petitioners before it and other consumers. Against the said order dated 16th January, 2015, Gujarat Energy Transmission Company Limited, State Load Dispatch Centre and the Vij Company-the applicants in the captioned Application have filed Special Civil Application Nos.9678 of 2015 and 9679 of 2015. They being connected matters, are ordered to be heard with Special Civil Application No.7117 of 2014.
3.4 The Central Electricity Authority is prayed to be joined as respondent in aforesaid Special Civil Application No.7117 of 2014 in the background of scenario of facts as above.
Page 4 of 13 C/CA/2179/2015 ORDER4. Learned senior counsel Mr.Kamal B. Trivedi assisted by learned advocate Mr.Premal Joshi for the applicants submitted that Central Electricity Authority, the party sought to be joined is an authority under the Electricity Act, 2003; it was brought into picture to give its report on the controversy in the petition, as per the order dated 21st May, 2014 passed by the Court. Learned senior counsel highlighted from Section 73 of the Act the functions which the said Authority is enjoined to discharge. It was submitted that in the other cognate Special Civil Application Nos.9678 and 9679 of 2015 filed by the applicants, the Central Electricity Authority is arraigned as a party. Learned senior counsel submitted that the said Authority prepared a report pursuant to the direction of this Court and the same was submitted, which now is a necessary limb of controversy involved in the cluster of petitions.
4.1 On the other hand, learned advocate Mr.Sunit Shah vehemently opposed the prayer to join Central Electricity Authority as party. According to his submission the said Authority is in no way necessary party and its presence is not necessary for deciding the controversy. It was submitted that after order dated 16th January, 2015 passed by the GERC, the first two prayers in Special Civil Application No.7117 of 2014 did not survive. He submitted that the third prayer in paragraph 13(d) is the only prayer to be gone into petition, in the context of which, the proposed party is neither necessary nor proper party.
Page 5 of 13 C/CA/2179/2015 ORDER4.2 Learned advocate further referred to and relied on order dated 16th September, 2014 in Civil Application No.10386 of 2014 which was filed in said Special Civil Application No.7117 of 2014 by the very applicants-original respondent Nos.1 to 3 praying for direction to the GERC not to pass any final order in Petition No.1407 of 2014 and other matters before it. On the basis of the said order, learned counsel submitted that the said application was for joining party and the issue with regard to joining party was not touched, as stated in the order. Learned counsel submitted that the function of Central Electricity Authority required to be performed by this Court in relation to the controversy is over, the Authority submitted its report, which was considered by the Commission and by not accepting the same, the order dated 16th January, 2015 came to be passed. It was the submission that no further relevance could be envisaged for the Central Electricity Authority, therefore it is not required to be arraigned as a party in the Special Civil Application.
4.3 Learned advocate for the respondent submitted that the Commission is an expert body and has decided on the basis of expert report. According to his submission Special Civil Application Nos.9678- 9679 of 2015 were not entertainable under Article 226 of the Constitution, therefore and in that view, it was submitted, that joining the Central Electricity Authority is entirely uncalled for. He submitted that those petitions could not be said to be related to the payer in Special Civil Application No.7117 of 2014. He Page 6 of 13 C/CA/2179/2015 ORDER submitted that for all these reasons, prayer to join the said party was misconceived and a party could not be joined for the sake of joining it.
4.4 In support of his submissions, learned advocate relied on decision of the Supreme Court in Uttar Pradesh Power Corporation Ltd. vs. N.T.P.C. Ltd. and ors, being Civil Appeal Nos.5777-5780 of 2007 and C.A. Nos.725-730 of 2008, decided on 14th September, 2011. He also relied on another decision in West Bengal Electricity Regulatory Commission vs. CESC Ltd. [(2002) 8 SCC 715]. Furthermore, the decision in Tata Power Co. Ltd. vs. Reliance Energy Ltd. [(2009) 16 SCC 659] as well as decision in PTC India Ltd. vs. Central Electricity Regulatory Commission [(2010) 4 SCC 603] were also pressed into service.
5. Having considered the facts and the controversy and the contentions canvassed, focusing on the question, it deserves to be noted that by order dated 21st May, 2014, this Court directed the Central Electricity Authority to hold an inquiry and submit report. The relevant part of the order is usefully extracted herein.
"3. At present, the petitioner company is complaining about discrimination by the respondents in performing their duties and, therefore, it is prayed in Para 13(c) of the petition, to hold an inquiry by respondent No.4. However, considering provision of section 73(l) of the Electricity Act,2003, instead of directing respondent No.4- The Gujarat Electricity Regulatory Commission to hold an inquiry, it would be appropriate to direct The Central Electricity Authority constituted u/s.70 of the Act, to carry out an investigation and to hold an inquiry pursuant to facts and details stated in the Page 7 of 13 C/CA/2179/2015 ORDER petition. The Central Electricity Authority shall also consider the reply and counter reply filed by all the parties. The Central Electricity Authority shall, after verifying the rival contentions, investigate the technical issues regarding constraint in upstream network for short term open access, if any. The Central Electricity Authority shall file its report before this Court in sealed cover on or before 13/06/2014. All the parties shall provide their respective stand in form of pleadings before The Central Electricity Authority on or before 27/05/2014.
4. The petitioner also contented about non-disclosure of details by respondent No.2 Gujarat Energy Transmission Corporation Limited, pursuant to regulation No.43(1)(c). If respondent No.2 has not disclosed full details as per aforesaid regulation, they should disclose such information on or before 24/05/2014 on their websites and proof of such disclosure shall be placed before this Court on the next date of hearing."
5.1 The order dated 16th September, 2014 also, which was relied on by learned counsel for the respondents-original petitioners, is also extracted herein in its relevant part which also throws light, "During the course of hearing, it was suggested by learned Advocate General & learned Sr. Counsel, Shri Kamal Trivedi that at-least Gujarat Electricity Regulatory Commission may hear the original respondent nos.1 to 3 namely the respondent no.1-Dakshin Gujarat Vij Company Ltd., respondent no.2-Gujarat Energy Transmission Corporation Ltd. and respondent no.3-State Load Dispatch Center and they may be permitted to make an application along with material including the material like the report of the Central Electricity Authority dated 20.08.2014, which would be relevant for the purpose of considering and deciding the issue involved in the matter regarding the open access and other related matters or the technical aspect."
5.2 From the aforesaid order dated 21st May, 2014 it could be hardly denied that this Court perceived a definite role of Central Electricity Authority in the controversy and brought it in the arena of subject matter directing it to submit and investigative report Page 8 of 13 C/CA/2179/2015 ORDER in the technical aspect. Not only that in the order dated 16th September, 2014 aforesaid, which was relied on by learned counsel for original petitioners to propose the impleadment, the Court observed inter alia that ".... they may be permitted to make an application along with material including the material like the report of the Central Electricity Authority dated 20.08.2014, which would be relevant for the purpose of considering and deciding the issue involved in the matter regarding the open access and other related matters or the technical aspect". The report of the Central Electricity Authority which was to be submitted at that time, was considered to be desirable. The order in no way suggests to be providing against the impleadment of Central Electricity Authority, rather, when read in total, viewed its role and report to be quite relevant.
5.3 With these factual background of the proceedings and order, it is to be noted that the Central Electricity Authority-the proposed party is a statutory body constituted under Section 70 of the Act, 2003. The functions and duties of the Authority are mentioned in Section 73 of the Act. It provides that the Authority shall perform such functions and duties as the Central Government may prescribe or direct, and in particular relevant sub-clauses being
(a) to (g) and (k).
5.3.1 Sub-clauses (l), (m) and (n) provides for function to (i) carry out, or cause to be carried out, any investigation for the purposes of generating or Page 9 of 13 C/CA/2179/2015 ORDER transmitting or distributing electricity; (ii) advise any State Government, licensees or the generating companies on such matters which shall enable them to operate and maintain the electricity system under their ownership or control in an improved manner and where necessary, in co-ordination with any other Government, licensee or the generating company owning or having the control of another electricity system; and (iii) advise the Appropriate Government and the Appropriate Commission on all technical matters relating to generation, transmission and distribution of electricity; and
6. From the above, it is clear that the functions of the Central Administrative Authority statutorily envisaged, include advising the Central Government in the matters of national electricity policy, specifying technical standards and other conditions for transmitting electricity, grid performance etc. The functions cover whole range of supply and transmission of electricity. Sub clauses
(k), (l) and (m) specifically provides for investigation for generating or transmitting or distributing electricity, advise licensees or generating companies and advise the Government and the Commission on all technical matters relating to generation, transmission and distribution of electricity.
7. In Mumbai International Airport Private Limited vs. Regency Convention Centre and Hotels Private Limited and ors. [(2010) 7 SCC 417], the Page 10 of 13 C/CA/2179/2015 ORDER Supreme Court reiterated the principles governing joining of party. Under Order 1, Rule 10, Code of Civil Procedure, 1908, the court has discretion to allow any party to be joined at any stage of proceedings. As per Order 1, Rule 10(2), the court may strike out at any stage of the proceedings, either upon the application of either party, a party whose presence is considered necessary to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the case. In Mumbai International Airport Private Limited (supra) the Court highlighted the well-settled concept of "a necessary party" and "a proper party". A necessary party is one in whose absence effective order could not be passed at all by the Court. A proper party is one, though it may not be strictly a necessary party, its presence would enable the Court to completely, effectively and adequately adjudicate upon all the matters in dispute.
8. The proposed party-Central Electricity Authority-is a statutory authority with function assigned for it under the statute as per Section 73 mentioned hereinabove. The subject matter of the petition in its nature could not be severed from functional sphere of the proposed party. This Court by order dated 21st May, 2014 required the Central Electricity Authority to submit technical inquiry report, thus perceiving its relevance and its role in the controversy. It is not possible to countenance the submission by the other side that the Central Electricity Authority is not a necessary and proper Page 11 of 13 C/CA/2179/2015 ORDER party.
9. Even as regards the prayer 13(d) in Special Civil Application No.7117 of 2014, the proposed party is a proper party. It is the authority which under its statutory function is to advise and guide the appropriate government, licensing authority or the commission in respect of all the matters of national electricity policy as well as in relation to the matters of electricity supply, transmission, grid maintenance, efficiency in the operations and the connected aspects. Even if the petitioners of Special Civil Application No.7117 of 2014 have a submission to make that except prayer 13(d) other prayers did not survive, the Central Electricity Authority would remain a necessary and proper party. In other related petitions, it is already a party respondent. It might be that Special Civil Application No.7117 of 2014 can be decided without impleading the Central Electricity Authority but that is not the only test. The adjudication of the controversy has to be wholesome and effective. For that, the Central Electricity Authority is a proper party. In fact the theoretical distinction sought to be brought about between necessary party and proper party gets blurred in certain cases, such as the present controversy where the adjudication cannot be said to be effective unless it is wholesome. Even though the order may be made in absence of party, but if such order is not wholesome and fails to consider the attendant aspects which could have been properly gone into only by virtue of presence of a particular party, then such party is Page 12 of 13 C/CA/2179/2015 ORDER necessary as well as proper party. The Central Electricity Authority, in view of what is stated hereinabove, is necessary and proper party.
10. In the circumstances, this application is allowed. The Central Electricity Authority shall be impleaded as party respondent No.5 in Special Civil Application No.7117 of 2014. Amendment in cause title in that regard shall be carried out immediately.
(N.V.ANJARIA, J.) Anup Page 13 of 13