Calcutta High Court (Appellete Side)
The West Bengal Electricity Regulatory ... vs West Bengal State Electricity ... on 11 March, 2020
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1
08
11.03.2020
Ct. No. 06
ssd
FMA 675 of 2020
(MAT 1549 of 2019)
with
CAN 10633 of 2019
The West Bengal Electricity Regulatory Commission
Vs.
West Bengal State Electricity Distribution
Company Limited and others
Mr. Pratik Dhar
Ms. Sharmistha Ghosh
Mr. Ritwik Pattanayak
Mr. Victor Chatterjee
Ms. Neha Chakrabotry
...for the appellant.
Mr. Srijan Nayak
Ms. Rituporna Maitra (Nayak)
Mr. Sujit Sankar Koley
...for the WBSEDCL.
Mr. Kartik Kumar Roy
Mr. Subhas Bandhyopadhyay
...for the respondent no.2.
The matter pertains to judicial discipline. Incidentally, the principles of stare decisis, ratio decidendi and sub silentio also fall for consideration.
It may also be said at the outset that the sentiment reflected in the judgment may be appreciated, but sometimes an individual judge's perception as to what is right has to be 2 tempered by the pronouncement on such aspect of the law if the pronouncement is binding in the hierarchical system that is followed in the judiciary in this country.
The rule as to the doctrine of precedents may briefly be enunciated. Of course, the applicability of such rule is on the basis what has actually been decided and not what is perceived to have been decided. The rule hinges on the principle enunciated in Quinn v. Leathem reported at (1901) AC 495 that is aptly quoted in the impugned judgment:
"... there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all."
The rule as to precedents is that when a High Court Bench of coordinate strength or a Bench of superior strength has decided a legal issue, what has been squarely decided is binding on a subsequent Bench of coordinate strength or lesser strength. However, a subsequent Bench of coordinate strength may differ with the views in the previous judgment 3 of a Bench of coordinate strength, whereupon the matter may be referred for consideration before a larger Bench. When, however, the decision on a question of law is placed before a Bench of inferior strength, such Bench of inferior strength has, per force, to follow the precedent and it may not differ from it, though it may put forth arguments to the contrary for a Bench of higher strength or a higher forum to consider such aspects, if the matter is carried up. The only exception to this general principle is that a previous decision on an aspect of law loses its binding force if it is per incuriam in the sense that it is contrary to any express provision of law or contrary to any binding precedent. Per incuriam implies in ignorance of. A judgment may be regarded as per incuriam if it is contrary to any express provision of law or contrary to the express view of a Bench or forum of superior strength. Also, a valid judgment may later be rendered bad law upon a Bench of larger strength or a superior forum rendering a contrary view on the relevant legal proposition.
Thus, when a Division Bench judgment of a High Court on a point of law which has been conclusively decided is placed before a Single Bench of that High Court, unless the Single Bench discovers the judgment to be per incuriam or rendered subsequently not to be good law, the Single Bench 4 is bound to abide by such judgment. The principle of judicial propriety and a degree of certainty that jurisprudence commands mandates no other course of action for the Single Bench. However, a subsequent Division Bench may not agree with the previous Division Bench view and the matter may be referred to a larger Bench, in such a scenario, if the previous judgment is not found to be per incuriam or subsequently rendered bad in law. In the present case, the judgment and order impugned dealt with the authority of the Ombudsman appointed under the Electricity Act, 2003 to adjudicate on complaints made by individual consumers or would-be consumers against a licensee. The respondent-licensee says that arbitrary amounts have been awarded by way of compensation to consumers, even in cases where the electricity supply stood disconnected upon discovery of theft of electricity by the relevant consumer.
However, the legal issue that was before the Single Bench in the several matters which have resulted in the common judgment and order had already been decided by this court in a judgment reported at AIR 2016 Cal.144 (W.B Electricity Regulatory Commission v. WBSEDCL). Paragraph 1 of the 2016 judgment framed the legal question and paragraph 36 of the report reveals the view expressed by the 5 Division Bench on the legal issue which had arisen. The question that fell for consideration before the relevant Division Bench is captured in the following sentence:
"....The controversy which fell for consideration before the learned Single Judge was whether the Ombudsman has jurisdiction to award compensation in the event of failure on the part of the distribution licensee to give electric connection to new consumers within the stipulated time frame or for breach of any other conditions prescribed in the standards of the performance of licensees under Section 57(1) of the Electricity Act of 2003..."
At paragraph 3 of the report, the Division Bench noticed, inter alia, Sections 42 and 43 of the said Act and observed that the failure to comply with the performance standards "would attract liability to pay penalty and also compensation under the provisions of the Act that is Sections 43(3) and Section 57(2)." Upon noticing several other provisions of the Act and Notification No.46 that had been published in 2010 indicating the powers, inter alia, of the Ombudsman, the court held as follows at paragraph 36 of the report:
"Apparently, constitutionality of 2010 regulations has not been assailed in the instant writ petition however, during the oral arguments across the bar and in the written submissions filed on behalf of the distribution licensee an attempt has been made to contend that 2010 Regulations are inconsistent with the provisions of the Act. As discussed earlier the scope of rule making power under Section 178 of the Act is wide enough to encompass the power of the Commission to delegate any of its powers by way of Regulations provided such 6 delegation is not expressly barred by the provisions of the Act. In the instant situation there is no such embargo on the delegation of power to award compensation under Section 57(2) of the Act. Hence, the authorization of the Ombudsman to award compensation under Section 57(2) of the Act for breach of standards of performance as laid down by it under Section 57(1) of the Act thereof cannot be said to be contrary to the provisions of the Act. That apart, such delegation in the 2010 regulations to the Ombudsman is not an uncanalised one and sufficient guidelines have been laid down for exercise of its discretion."
A special leave petition preferred from the said judgment of the Division Bench was dismissed by the Supreme Court. A subsequent review of the Division Bench's order was also rejected. Indeed, the identical issue involved in the previous Division Bench judgment of 2016 fell for consideration before another Division Bench in MAT 261 of 2019 (Shri Dudh Kumar Giri v. The West Bengal State Electricity Distribution Company Limited). In the judgment and order rendered on April 24, 2019, the subsequent Division noticed that a clutch of writ petitions had been filed by the relevant distribution company to challenge orders passed by the Ombudsman awarding compensation to consumers for the delay in providing the electricity connections. The Division Bench noticed that the Single Bench in such case "held that the Ombudsman did not have the power to award compensation and set aside the orders of the Ombudsman." The appeal before such subsequent Division Bench was by 7 the present appellant which is the Regulatory Commission in the State. The Division Bench then noticed the 2016 judgment and, upon observing that such judgment had attained finality as the special leave petition against the same had been dismissed, allowed the appeal based on the dictum in the previous Division Bench judgment.
Thus, as far as this High Court is concerned, after April 24, 2019, the issue was concluded and there could be no further doubt that an Ombudsman appointed under the Act of 2003 had due authority to award compensation to consumers. It is not in dispute that both the Division Bench judgments were placed before the Single Bench in this case; but the earlier judgment is referred to therein and the later judgment is not.
It appears from the impugned judgment that despite the conclusive pronouncement in the Division Bench judgment of 2016, the Single Bench in this case referred to several provisions of the Act and came to veritable findings which were contrary to the judgment rendered by the Division Bench in 2016.
Indeed, the challenge in the writ petitions was, so to say, still-born on the aspect of the Ombudsman's authority to award compensation to any consumer. The several writ 8 petitions that culminated in the order impugned were all filed by the West Bengal State Electricity Distribution Company, no less, and most of the petitions were filed in 2014 or later, where the licensee challenged the vires of a Notification No.46 of the year 2010 which stood overwritten by a Notification No.57 of the year 2013. It was a reckless challenge by a misguided licensee that had little regard for decorum or propriety. Even though the same question had been answered against the licensee twice over, the challenge to the Ombudsman's authority was pursued before a Bench of inferior strength when such Bench and the licensee were completely bound by the previous Division Bench judgments and had no room to manoeuvre or express any contrary opinion without discovering the previous Division Bench judgments to be per incuriam. Indeed, even the principle of issue estoppel precluded the licensee from pursuing the challenge that had been previously repelled.
Though the doctrine of stare decisis may not strictly apply in this case, certain elements of it may be apposite. Such doctrine provides for an element of certainty. Just as the finality of a decision does not depend on the correctness thereof, the need for there to be an element of certainty on certain legal issues, again, does not depend on the 9 correctness of the original view taken as long as such view has continued for a substantial period of time. As the cliche goes, the life of law is experience and not necessarily logic. Equally, law is neither an ass nor illogical. If a degree of respect or certainty does not attach to legal pronouncements by the superior and constitutional courts, both lawyers and litigants would be in a state of confusion as to how to conduct themselves and advise clients. Consistency and certainty are hallmarks of a mature judicial system.
It is not for this Bench to go into either of the previous Division Bench judgments or to find fault with the same. It is not even up to this Bench to refer to several other provisions in the Act of 2003 which may not have been appropriately considered in either of the previous cases. Indeed, the interplay of Section 97 with Section 86 of the Act and the power of the Regulatory Commission to delegate its authority to adjudicate under Section 57(2) of the Act have not been specifically referred to in the previous judgments. But the dictum in either case is unequivocal.
There is another judgment, reported at (2007)8 SCC 381 (Maharashtra Electricity Regulatory Commission v. Reliance Energy Ltd.), where the Supreme Court observed that the scheme of the Act of 2003 was such that individual 10 complaints of the consumers could not be directly carried to a State Regulatory Commission. The dictum in such case may be discerned from paragraphs 13 and 31 of the report. Paragraph 18 may also be noticed in the context since Section 57 is specifically referred to therein.
The doctrine of stare decisis applies when a view on a legal issue has remain settled over a substantial period of time. In its full form, the principle, stare decisis et non queita movere, means "to stand by decisions and not to disturb what is settled." The dictum in Reliance Energy Limited came to be propounded within a few years of the Act of 2003 being enacted and has remained in force for more than a decade. Though the 2016 Division Bench judgment of this court did not notice the Reliance Energy Limited case, the ratio decidendi in such 2016 decision can be supported by the Reliance Energy Limited dictum. It is in such a scenario that the settled position as obtaining from the Reliance Energy Limited judgment of 2007 may be left undisturbed. That is not to say that a different view may not be taken by the Supreme Court; but only that in the light of such judgment holding the field for more than a decade and instructing that individual complaints of consumers cannot be taken up by any Commission appointed under the Act of 2003, no High Court may hold that any Commission 11 under the Act has the authority to entertain complaints from individual consumers till such judgment in Reliance Energy Limited is upset.
For the purist, the authority conferred by a statute to delegate certain matters has to be strictly construed. This is even more so when it is the authority to adjudicate that is sought to be delegated. The decision in Reliance Energy Limited appears, at first blush, to be a rather sweeping pronouncement on the limitation of the authority of a State Regulatory Commission to entertain matters for adjudication. After all, Section 57(2) of the Act exclusively confers authority on "the Appropriate Commission" to determine the compensation that a licensee who fails to meet the standards specified by such Commission "shall be liable to pay ... to the persons affected ...". At the same time, and without prejudice to the general rule that the authority to adjudicate may not be delegated unless specifically provided for, in the light of the more wholesome authority conferred on a State Regulatory Commission, it is possible to perceive, as the judgment in Reliance Energy Limited lays down, that a State Regulatory Commission would deal with macro matters and not have to entertain complaints by individual consumers. 12 Since such judgment noticed Section 57 of the Act and still held that individual complaints of consumers could not be carried before a State Regulatory Commission, the inescapable implication of the judgment is that the authority to determine matters pertaining to compensation or the like of individual consumers could be taken up by "any other person" as referred to in Section 97 of the Act which deals with the power of delegation. It is the same sentiment as in the Reliance Energy Limited case that is reflected in the 2016 Division Bench judgment of this court, without a more comprehensive discussion being undertaken on the various features of the Act of 2003, the authority of the State Regulatory Commission in general and the propriety of delegating even the adjudicatory functions of a specified authority to another whose qualifications are not defined by the statute.
However, since the rules of the game as to law of precedents remain the same, the Division Bench judgement of 2016 remains binding on this Bench. The question as to the authority of the Ombudsman to award compensation to consumers was squarely raised in that matter. The issue was conclusively pronounced upon. The answer may not have been as wholesome as it could have been but it has passed 13 muster before another Division Bench and the Single Bench in this case could not have differed from such view to refer the issue as to the authority of the Ombudsman to a larger Bench. The Single Bench was clearly in error, though it could have recorded its views and expressed its reservations on the Division Bench judgment.
There can be no doubt that the Single Bench in this case was bound by the 2016 Division Bench judgment and the dictum therein. As observed above, even if a Single Bench cannot persuade itself to agree with a previous Division Bench judgment that is brought before it on the same legal question, the Single Bench has no choice but to follow the dictum of the Division Bench. It is only if the Single Bench finds a contrary opinion rendered by another Division Bench of the same court that the Single Bench may refer the matter to the Hon'ble the Chief Justice to convene a larger bench to decide on the legal issue. In the absence of a contrary view of another Division Bench of this court being available, the Single Bench in this case could not have referred the matter for the constitution of "an appropriate Bench" to address any of the questions set out in the impugned judgment. To repeat, it is only a subsequent bench of coordinate strength that can differ with the view expressed on a question of law by a previous bench of 14 coordinate strength of the same court for the appropriate resolution thereof by a larger bench. Such course of action is not open to an inferior bench when the dictum of a Division Bench of the same court covering the legal issues stares squarely at its face.
In all the writ petitions on which the impugned judgment has been passed, the specific challenge was to Notification No.46 published in 2010. It is evident from the impugned judgment that the relevant part of the Regulations of 2010 published by way of Notification No.46 stood completely altered by 2013. It was only in course of the hearing that the licensee applied for amendment and sought to challenge Notification No.57 published in 2013. The amendment does not appear to have been formally allowed prior to the impugned judgment being passed. Even if the amendment is accepted, the challenge in the writ petitions would be confined to Regulation 14 published by way of Notification No.57 and not any other Regulations published thereafter. At any rate, the charging provision under Notification No.57 was not challenged. Regulation 15 of Notification No.57 provided for the quantum of compensation to be awarded and, in the absence of any challenge to such aspect, the writ petitions hardly made any sense. Yet, the impugned judgment referred to subsequent 15 Notification No.61, although it was observed that the genesis of the issue as to the Ombudsman's authority lay in Notification No.46 and the altered Regulations thereafter did not substantially vary the position. Without being hyper-technical, it must be said that in the adversarial system that is followed in this country, arguments must have foundations in pleadings. Though courts can mould the reliefs sought, a degree of formality has to be maintained and a litigant has to be confined to the case made out in the pleadings.
Further, the impugned judgment noticed the Reliance Energy Limited judgment and, indeed, dwelt on the same at great length. Paragraph 13 of the report in Reliance Energy Limited contains a clear and categorical finding of the Supreme Court that "the Commission cannot adjudicate disputes relating to grievances of individual consumers." To boot, the judgment in Reliance Energy Limited emphasised, at paragraph 31 of the report, that the basic question which fell for consideration in the appeal before the Supreme Court was "whether the individual consumer can approach the Commission under the Act or not." In answering such question, the Supreme Court referred to Section 42(5) of the Act and the creation of the grievance redressal fora and the 16 office of the Ombudsman in pursuance thereof. At paragraph 33 of the report, the law declared by the Supreme Court is clear and unambiguous:
"33. ... Hence wherever a forum/ombudsman have been created the consumers can only resort to these bodies for redressal of their grievances. Therefore, not much is required to be discussed on this issue. As the aforesaid two decisions correclty lay down the law when an individual consumer has a grievance he can approach the forum created under sub-section (5) of Section 42 of the Act."
The same sentiment is reflected in the following paragraph of the judgment in the discussion pertaining to the functions of the State Regulatory Commissions:
"34. ... (Section 86(1)(f) of the Act) lays down the adjudicatory function of the State Commission which does not encompass within its domain complaints of individual consumers. It only provides that the Commission can adjudicate upon the disputes between the licensees and generating companies and to refer any such dispute for arbitration. This does not include in it an individual consumer. The proper forum for that is Section 42(5) and thereafter Section 42(6)...". In the backdrop of the law declared by the Supreme Court as aforesaid and such law being binding on all courts in this country, there was no room for the elaborate discussion in the impugned judgment to make out a case for individual complaints of consumers being entertained by the State Regulatory Commission.
17
Accordingly, FMA 675 of 2020 succeeds. The judgment and order impugned dated August 21, 2019 stand set aside. All the several writ petitions decided by the common judgment and order will now be decided purely on the merits of the matters as to the quantum of compensation directed to be paid by the Ombudsman without going into the question of the Ombudsman's authority to award compensation.
The connection application, CAN 10633 of 2019, is disposed of. The licensee will pay costs assessed at Rs.50,000/- to the appellant within a fortnight from date for the licensee to be entitled to further pursue any of the writ petitions on which the impugned judgment and order were passed.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Sanjib Banerjee, J.) (Protik Prakash Banerjee, J.)