Madhya Pradesh High Court
Madhya Pradesh Power Transmission ... vs Power Grid Corporation Of India Ltd on 25 February, 2021
Author: Sujoy Paul
Bench: Sujoy Paul
1 WP No.9136/2020
HIGH COURT OF MADHYA PRADESH
WRIT PETITION NO.9136/2020
Madhya Pradesh Power Transmission Company Limited
Vs.
Power Grid Corporation of India Limited & Ors.
Indore, Dated:25.02.2021
Shri. Purushendra Kaurav, learned Sr.Counsel with Shri
Ashish Anand Barnard, learned counsel for petitioner.
Shri Deepak Rawal, learned counsel for respondent No.2.
None for other respondents.
Heard on the question of availability of alternative
remedy.
ORDER
Shri Kaurav, learned Sr.Counsel at the outset submits that although as per Sec.111 of the Electricity Act, 2003 (Act of 2003) there exists an alternative remedy of appeal, this petition may be entertained because said remedy is not efficacious in nature.
[2] To elaborate, it is submitted that the petitioner and respondent No.2 both are admittedly "utility" and "licensees". An electricity line was required to be laid by petitioner in western region between Indore and Ujjain (distance is 45 kms). The cut-off date initially fixed was 28/7/2018 to complete the said work which was admittedly extended till 11/1/2019. Sec.9 of the Act of 2003 describes functions of Central Commission. Power to make regulations are mentioned in Sec.178. Sec.179 makes it obligatory to place the regulations in the floor of parliament. The Central Electricity Regulatory Commission (Commission) was required to take a decision as per Regulations of 2014. The commission by impugned order dated 27/1/2020 erred in issuing the following directions:-
2 WP No.9136/2020"Sharing of Transmission Charges
70. In case of Assets-1A, 1B and Asset-2, the transmission charges from their COD, i.e. 12.8.2018, 12.8.2018 and 2.8.2018 respectively upto the COD of downstream transmission system under the scope of MSETCL shall be borne by MSETCL and the transmission charges for Asset-3 from 11.1.2019 up to the COD of downstream transmission system under the scope of MPPTCL shall be borne by MPPTCL and thereafter the transmission charges allowed in this order, as provided in Regulation 43 of the 2014 Tariff Regulations, shall be shared by the beneficiaries and long term transmission customers in terms of the Central Electricity Regulatory Commission (Sharing of Inter State Transmission Charges and Losses) Regulations, 2010 as amended from time to time."
(emphasis supplied) [3] The bone of contention of petitioner is that in view of judgment of Supreme Court reported in (2010) 4 SCC 603 PTC India Ltd. Vs. Central Electricity Regulatory Commission, it is clear that the decision of Central Commission must be in conformity with Regulations u/S.178 of the Act of 2003 wherever such regulations are applicable. Measures u/S.79(1), therefore, have got to be in conformity with Regulations u/S.178 of the Act. For the same purpose reliance is placed on para 92(iii) of judgment which reads as under:-
"92.(iii) A regulation under Section 178 is made under the authority of delegated legislation and consequently its validity can be tested only in judicial review proceedings before the courts and not by way of appeal before the Appellate Tribunal for Electricity under Section 111 of the said Act."
(emphasis supplied) [4] By placing reliance on Regulation 178, it is contended that the impugned orders are not in conformity with the said Regulations. The Commission has taken decision beyond the scope of said Regulations and, therefore, its exercise is without 3 WP No.9136/2020 authority and competence. The order passed beyond jurisdiction can be assailed before this Court without availing the alternative remedy.
[5] The next contention is that a similar question cropped up before the appellate forum constituted u/S.111 of Act of 2001 and the appellate forum held as under:-
"10.5 Accordingly, in absence of specific provisions in the Sharing Regulations/Tariff Regulations, 2014 to deal with the situation under question the Central Commission through exercise of its regulatory powers has prescribed a principle for sharing of transmi9ssion charges of the Transmission System of the Respondent No.2 in the Impugned Order. Thus, it is observed that by way of exercising its regulatory power by a way of judicial order(s) the Central Commission has laid down the principles of payment of transmission charges in such an eventuality. However, it is felt that the Central Commission in the impugned Order has abruptly concluded the payment liability on the Appellant just by referring to its earlier orders and not establishing the linkage with the present case explicitly. This Tribunal would like to clarify the same."
(emphasis supplied) [6] It is contended that the appellate forum has taken a peculiar view. Although commission exercise twin powers relating to adjudication and Regulation, fact remains that regulatory power cannot be exercised by way of a judicial order. Since appellate authority has already taken a contrary view on the points in question, no useful purpose would be served in relegating the petitioner before the appellate authority. In support of this contention, the petitioner's placed reliance on Executive Engineer, Southern electricity Supply Company of Orissa Limited (SOUTHCO) and another (2012) 2 SCC
108. Relevant portion on which reliance is placed reads as under:-
4 WP No.9136/2020"80.It is a settled canon of law that the High Court would not normally interfere in exercise of its jurisdiction under Article 226 of the Constitution of India where statutory alternative remedy is available. It is equally settled that this canon of law is not free of exceptions. The courts, including this Court, have taken the view that the statutory remedy, if provided under a specific law, would impliedly oust the jurisdiction of the civil courts. The High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India can entertain writ or appropriate proceedings despite availability of an alternative remedy. This jurisdiction, the High Court would exercise with some circumspection in exceptional cases, particularly, where the cases involve a pure question of law or vires of an Act are challenged. This class of cases we are mentioning by way of illustration and should not be understood to be an exhaustive exposition of law which, in our opinion, is neither practical nor possible to state with precision. The availability of alternative statutory or other remedy by itself may not operate as an absolute bar for exercise of jurisdiction by the courts. It will normally depend upon the facts and circumstances of a given case. The further question that would inevitably come up for consideration before the Court even in such cases would be as to what extent the jurisdiction has to be exercised.
81.Should the courts determine on merits of the case or should they preferably answer the preliminary issue or jurisdictional issue arising in the facts of the case and remit the matter for consideration on merits by the competent authority? Again, it is somewhat difficult to state with absolute clarity any principle governing such exercise of jurisdiction. It always will depend upon the facts of a given case. We are of the considered view that interest of administration of justice shall be better subserved if the cases of the present kind are heard by the courts only where they involve primary questions of jurisdiction or the matters which go to the very root of jurisdiction and where the authorities have acted beyond the provisions of the Act. However, it should only be for the specialised tribunal or the appellate authorities to examine the 5 WP No.9136/2020 merits of assessment or even the factual matrix of the case.
82.It is argued and to some extent correctly that the High Court should not decline to exercise its jurisdiction merely for the reason that there is a statutory alternative remedy available even when the case falls in the abovestated class of cases. It is a settled principle that the courts/tribunal will not exercise jurisdiction in futility. The law will not itself attempt to do an act which would be vain,lex nil frustra facit, nor to enforce one which would be frivolous--lex neminem cogit ad vana seu inutilia
--the law will not force anyone to do a thing vain and fruitless. In other words, if exercise of jurisdiction by the tribunal ex facie appears to be an exercise of jurisdiction in futility for any of the stated reasons, then it will be permissible for the High Court to interfere in exercise of its jurisdiction. This issue is no longer res integra and has been settled by a catena of judgments of this Court, which we find entirely unnecessary to refer to in detail. Suffice it to make a reference to the judgment of this Court in Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1] where this Court was concerned with the powers of the Registrar of Trade Marks and the Tribunal under the Trade and Merchandise Marks Act, 1958 and exercise of jurisdiction by the High Court in the face of availability of a remedy under the Act."
(emphasis supplied) [7] Apart from this, it is submitted that as per the stand of respondent No.2 and appellate body, the impugned orders are like regulations, vires of the same is also called in question by way of amendment. The amendment application has already been allowed.
[8] Lastly, it is canvassed that in following situations, despite availability of alternative remedy, petition can be entertained:-
(i) Where principles of natural justice are breached;6 WP No.9136/2020
(ii) Where fundamental rights are sought to be enforced or breach of it is complained of;
(iii) Where order impugned is passed by authority without jurisdiction;
(iv) Where the constitutionality of any provision is called in question.
[9] Reference is made to the judgment of Supreme Court reported in (1998) 8 SCC 1 Whirlpool Corporation Vs. Registrar of Trademark. It is accordingly prayed that this petition may be entertained and petitioner may not be relegated to avail the alternative remedy.
[10] It was further pointed out that the respondent No.2 got certain reliefs by the Commission which were not even prayed for by him. The relief clause of this petition was read out in juxtaposition to the relief actually granted.
[11] Shri Deepak Rawal, learned counsel for respondent No.2 urged that petitioner has alternative remedy of preferring first appeal u/S.111 and Second Appeal u/S.125 of the Act of 2003. The appellate order in which a contrary view is taken by appellate Court is subject matter of challenge before Supreme Court, but there is no stay in the said matter. The vires was not challenged in this matter initially. It was challenged by way of amendment and hence this petition is not maintainable.
[12] No other point is pressed by the parties.
[13] This is trite that despite availability of alternative remedy, a writ petition can be entertained if any of the factors mentioned in the judgment of Whirlpool (supra) are satisfied. In the instant case, the petitioner has challenged the constitutionality of the orders. Even if it is challenged by way of amendment, once amendment is allowed it will relate back to the original 7 WP No.9136/2020 date of filing of writ petitions. Petitioner has also challenged the orders by contending that power exercised by the Commission was beyond the powers vested in it as per relevant regulation. The relief granted was beyond the relief prayed for. Hence, principles of natural justice were breached. In our view, in a case of this nature despite availability of alternative remedy, the writ petition can be entertained.
[14] Resultantly, the objection regarding alternative remedy is over ruled. The petition is admitted for hearing.
[15] List in due course.
(SUJOY PAUL) (SHAILENDRA SHUKLA)
Judge Judge
vm
Digitally signed by
Varghese Mathew
Date: 2021.02.26 04:11:34
-08'00'