Wersetgubleantgoarly Ecloemcmtirsisciiotny VS. C.E.S.C.Ltd.

Case Law No.4037, Reporting JudgeN Santosh Hegde, B.N. Agrawal

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Wersetgubleantgoarly Ecloemcmtirsisciiotny VS. C.E.S.C.Ltd.

CASE NO.: Appeal (civil) 4037 of 2002 Appeal (civil) 4045 of 2002 Appeal (civil) 4046 of 2002 Appeal (civil) 4047-49 of 2002 Appeal (civil) 4050-51 of 2002

PETITIONER: WeRsetguBleantgoarly ECloemcmtirsisciiotny

RESPONDENT: C.E.S.C.Ltd.

DATE OF JUDGMENT: 03/10/2002

BENCH: N Santosh Hegde, B.N. Agrawal & B.P. Singh.

JUDGMENT: J U D G M E N T

SANTOSH HEGDE, J.

Leave granted in SLP No. CC 6293/02 & SLP No.

CC 6307/02. In the connected appeals, leave has already been granted. All these matters raised common question of law and facts, hence, have been clubbed together.

The West Bengal Electricity Regulatory Commission (the Commission) by an order dated 7.11.2001 determined the tariff for the sale of electricity by the Calcutta Electricity Supply Company Ltd. (the Company) for the years 2000-2001 and 2001-2002. Being aggrieved by the said determination of tariff, the Company preferred an appeal before the High Court of Calcutta under Section 27 of the Electricity Regulatory Commissions Act, 1998 (the 1998 Act). The High Court by the impugned judgment has allowed the appeal of the Company by itself re-determining the tariff and enhancing the same. It is against this judgment of the High Court the above civil appeals are preferred.

C.A.No.4037 of 2002 is preferred by the Commission specifically contending that the Commission is not challenging the tariff fixed by the High Court in its appellate jurisdiction. It contends that it was aggrieved by the interpretation by the High Court of some of the provisions of the 1998 Act as also the High Court's finding in regard to the validity of the Regulations and the procedure to be followed in fixing the tariff which findings, according to the appellant, would make the Commission nugatory and defeat the very object of the 1998 Act.

C.A. No. 4047 of 2002 is filed by the Bharat Chamber of Commerce against the order made by the High Court dated 23.4.2002, whereby the High Court rejected the application filed by the appellant, seeking the recusal of the Judges from hearing the appeal on the ground of bias.

C.A. No. 4048 of 2002 is filed by the same appellant as in C.A.No.4047/02, against an order made by the High Court on 7.5.2002, whereby the High Court declined to hear the arguments of the appellants on merits, on the ground that the said appellants were not entitled to be heard by the High Court, because of the objections raised by the said appellants attributing bias to the Judges.

C.A. No. 4049 of 2002 and other connected appeals are filed by the appellants who are aggrieved, not only by the order of their non impleadment, but also by the final order of the High Court dated 7-14/5/02, by which the High Court set aside the tariff fixed by the Commission and re-fixed and enhanced the tariff.

The first argument addressed on behalf of most of the appellants before us was in regard to bias. It was seriously contended on behalf of these appellants that the Learned Judges who constituted the Appellate Bench ought to have recused themselves from hearing the appeal, since the appellants had a reasonable apprehension of bias being entertained by those Judges who constituted the Bench. They also contended that their apprehension as to the bias of the Bench stands established from certain observations made in the impugned judgment of the High Court. The learned counsel representing the respondent company, have with equal vehemence opposed the argument of the appellants in regard to bias. Be that as it may, all parties before us have unanimously contended that the basic issues involved in these appeals would arise frequently not only between the parties to this case and in the Calcutta High Court, but also all over India and since as of now there is no authoritative pronouncement of this Court on the questions which arise in these appeals, therefore, we should finally decide these issues, whatever be our findings on the question of bias.

In this background, we have decided to consider the question of bias as the last question to be decided, that too, only if need be.

For deciding the issues that arise in these appeals, it is necessary to have a look at the various enactments which have direct bearing on these issues.

The Indian Electricity Act, 1910 (the 1910 Act), was enacted with a view to make an improvement on the then existing legislation controlling the generation, transmission and supply of electricity in this country. Out of the various provisions of this Act, we need only refer to Clause II of the Schedule to the 1910 Act, which read with Section 3(2)(f) of this Act, makes it obligatory for a licensee to follow the procedure as to the audit of the licensee's accounts which, inter alia, requires the same to be audited by such persons as the State Government may appoint or approve in that behalf. Thus, the 1910 Act has made the auditing of the accounts of a licensee a statutory requirement. This statutory requirement continues to operate inspite of subsequent enactments.

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