# HIMACHAL PRADESH STATE ELECTRICITY REGULATORY COMMISSION AND ANOTHER v. HIMACHAL PRADESH STATE ELECTRICITY BOARD

- **Citation:** [2013] 11 S.C.R. 915
- **Court:** Supreme Court of India
- **Decided:** 2013-10-03
- **Case number:** Civil Appeal No. 6128 of 2009
- **Bench:** Anil R. Dave, Dipak Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/himachal-pradesh-state-electricity-regulatory-commission-and-another-v-himachal-28708
- **Pages:** 28

## Headnote

Electricity Regulatory Commission Act, 1998:
s. 27 - Appeal under - Maintainability of - After repeal
of the 1998 Act and enactment of Electricity Act, 2003- Held:
Maintainable, since the legislature never intended to take away
the vested right of appeal in the forum under the 1998 Act,
A
B
c
as the 2003 Act did not provide for transfer of pending cases
0
- Electricity Act, 2003 - s. 111.
s. 22 - Determination of Tariff under - By regulatory
, Commission - Also issued certain directions as part of the
taiiff order - The Commission imposed fine on Electricity
Board for non-compliance of the directions - Propriety of -
E
Held: The Commission was competent to issue the directions
as all the directions were connected with the tariff fixation -
However, it was not correct for the Commission to impose
penalty on the Board, as the Board had substantially
complied with the directions.
F
Prospective Operation - Enactments dealing with vested
rights are primarily prospective, unless expressly or by
necessary intention or implication given effect retrospectively
- A right to appeal as well as forum is a vested right.
G
Himachal Pradesh State Electricity Regulatory
Commission constituted under Electricity Regulatory
Commission Act, 1998, in exercise of its powers u/ss. 22
915
H
916
SUPREME COURT REPORTS
[2013] 11 S.C.R.
A and 29 of the 1998 Act, determined the tariff applicable
for electricity in the State and also issued certain
direction.s as a part of the tariff order.
In view of the complaints, the Commission issued
. 8 notice to the respondent-Board for non-compliance of the
directions issued by the Commission. RespondentBoard, in its reply, questioned the jurisdiction and
competence of the Commission to issue those directions.
The Commission held the respondent-Board guilty of
C non-compliance of the directions and imposed penalty of
Rs. 5000/- on the Board.
The respondent-Board, challenging the order of the
Commission, filed appeal before High Court u/s. 27 of the
1998 Act. In the meantime 1998 Act was repealed and
D Electricity Act, 2003 was enacted. Pursuant thereto, the
Commission took preliminary objection as to
maintainability of the appeal by the High Court and
contended that in view of s. 111 of the 2003 Act the
appeal would lie to the Appellate Tribunal established
E under 2003 Act. High Court held that the appeal was
maintainable because the· 2003 Act would have
prospective operation. While deciding the appeal on
merit, set aside the order passed by the Commission.
Hence the present appeals.
F
Disposing of the appeals, the Court
HELD: 1.1. It is a well settled proposition of law that
enactments dealing with substantive rights are primarily
prospective unless it is expressly or by necessary
G intention or implication given effect retrospectively. The
aforesaid principle has full play when vested rights are
affected. In the absence of any unequivocal expose, the
piece of Legislation must exposit adequate intendment
of Legislature to make the provision retrospective. A right
H of appeal as well as forum is a vested right unless the
H.P. STATE ELECT. REGULATORY COMM. v. H.P.
917
STATE ELECT. BOARD
said right is taken away by the Legislature by an express A
provi$ion in the Statute by necessary intention. [Para 25]
[937-H; 938-A·B]
1.2. It is the admitted position that Legislature by
expressed stipulation in the new legislation has not 8
provided for transfer of the pending cases as was done
by the Parliament in respect of service matters and suits
by financial institutions/banks by enactment of
Administrative Tribunal Act, 1985 and Recovery of Debts
due to Banks and Financial Institution Act, 1993. No doubt C
right to appeal can b~ divested but this requires either a
direct legislative mandate or sufficient proof or reason to
show and hold that the said right to appeal stands
withdrawn and the pending proceedings stand
transferred to different or new appellate forum. Creation
of a different or a new appellate forum by itself

## Text

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[2013] 11 S.C.R. 915
HIMACHAL PRADESH STATE ELECTRICITY
REGULATORY COMMISSION AND ANOTHER
v.
HIMACHAL PRADESH STATE ELECTRICITY BOARD
(Civil Appeal No. 6128 of 2009 )
OCTOBER 03, 2013
[ANIL R. DAVE AND DIPAK MISRA, JJ.]
Electricity Regulatory Commission Act, 1998:
s. 27 - Appeal under - Maintainability of - After repeal
of the 1998 Act and enactment of Electricity Act, 2003- Held:
Maintainable, since the legislature never intended to take away
the vested right of appeal in the forum under the 1998 Act,
A
B
c
as the 2003 Act did not provide for transfer of pending cases
0
- Electricity Act, 2003 - s. 111.
s. 22 - Determination of Tariff under - By regulatory
, Commission - Also issued certain directions as part of the
taiiff order - The Commission imposed fine on Electricity
Board for non-compliance of the directions - Propriety of -
E
Held: The Commission was competent to issue the directions
as all the directions were connected with the tariff fixation -
However, it was not correct for the Commission to impose
penalty on the Board, as the Board had substantially
complied with the directions.
F
Prospective Operation - Enactments dealing with vested
rights are primarily prospective, unless expressly or by
necessary intention or implication given effect retrospectively
- A right to appeal as well as forum is a vested right.
G
Himachal Pradesh State Electricity Regulatory
Commission constituted under Electricity Regulatory
Commission Act, 1998, in exercise of its powers u/ss. 22
915
H
916
SUPREME COURT REPORTS
[2013] 11 S.C.R.
A and 29 of the 1998 Act, determined the tariff applicable
for electricity in the State and also issued certain
direction.s as a part of the tariff order.
In view of the complaints, the Commission issued
. 8 notice to the respondent-Board for non-compliance of the
directions issued by the Commission. RespondentBoard, in its reply, questioned the jurisdiction and
competence of the Commission to issue those directions.
The Commission held the respondent-Board guilty of
C non-compliance of the directions and imposed penalty of
Rs. 5000/- on the Board.
The respondent-Board, challenging the order of the
Commission, filed appeal before High Court u/s. 27 of the
1998 Act. In the meantime 1998 Act was repealed and
D Electricity Act, 2003 was enacted. Pursuant thereto, the
Commission took preliminary objection as to
maintainability of the appeal by the High Court and
contended that in view of s. 111 of the 2003 Act the
appeal would lie to the Appellate Tribunal established
E under 2003 Act. High Court held that the appeal was
maintainable because the· 2003 Act would have
prospective operation. While deciding the appeal on
merit, set aside the order passed by the Commission.
Hence the present appeals.
F
Disposing of the appeals, the Court
HELD: 1.1. It is a well settled proposition of law that
enactments dealing with substantive rights are primarily
prospective unless it is expressly or by necessary
G intention or implication given effect retrospectively. The
aforesaid principle has full play when vested rights are
affected. In the absence of any unequivocal expose, the
piece of Legislation must exposit adequate intendment
of Legislature to make the provision retrospective. A right
H of appeal as well as forum is a vested right unless the
H.P. STATE ELECT. REGULATORY COMM. v. H.P.
917
STATE ELECT. BOARD
said right is taken away by the Legislature by an express A
provi$ion in the Statute by necessary intention. [Para 25]
[937-H; 938-A·B]
1.2. It is the admitted position that Legislature by
expressed stipulation in the new legislation has not 8
provided for transfer of the pending cases as was done
by the Parliament in respect of service matters and suits
by financial institutions/banks by enactment of
Administrative Tribunal Act, 1985 and Recovery of Debts
due to Banks and Financial Institution Act, 1993. No doubt C
right to appeal can b~ divested but this requires either a
direct legislative mandate or sufficient proof or reason to
show and hold that the said right to appeal stands
withdrawn and the pending proceedings stand
transferred to different or new appellate forum. Creation
of a different or a new appellate forum by itself is not D
sufficient to accept the argument/contention of an implied
transfer. Something more substantial or affirmative is
required which is not perceptible from the scheme of the
2003 Act. [Para 26] [938-C-F]
E
1.3. On reading of Section 185 of the 2003 Act in
entirety, it is difficult to say that even if Section 6 of the
General Clauses Act would apply, then also the same
does not save the forum of appeal. There is no contrary
intention that Section 6 of the General Clauses Act would
F
not be applicable. It is also to be kept in mind that the
distinction between what is and what is not a right by the
provisions of the Section 6 of the General Clauses Act is
often one of great fitness. What is unaffected by the
repeal of a statute is a right acquired or accrued under it G
and not a mere hope, or expectation of, or liberty to apply
for, acquiring right. [Para 28] [939-F-H]
Ambalal Sarabhai Enterprises Ltd. vs. Amrit Lal and Co.
and Anr. (2001) 8 sec 397: 2001 (2) Suppl. SCR 195;
Ko/hapur Canesugar Works Ltd. vs. Union of India (2000) 2 H
918
SUPREME COURT REPORTS
[2013] 11 S.C.R.
A
SCC 536: 2000 (1) $CR 518; M.S. Shivananda vs. Kamataka
State Road Transport Corporation and Ors. (1980) 1 SCC
149: 1980 (1) SCR 684; Vijay vs. State of Maharashtra and
Ors. (2006) 6 sec 289: 2006 (4) Suppl. SCR 81 - relied on.
8
1.4. Tested on the touchstone of doctrine of fairness,
the legislature never intended to take away the vested
right of appeal in the forum under the 1998 Act. Thus the
conclusion of the High. Court that it had jurisdiction to
hear the appeal is absolutely flawless. [Paras 30 and 31)
C [940-C-D]
Garikapati Veeraya vs. N. Subbiah Chaudhry and Ors.
AIR 1957 SC 540: 1957 SCR 488 - followed.
State of Punjab vs. Mohar Singh (1955) 1 SCR 893;
0
Brihan Maharashtra Sugarsyndicate Ltd. vs. Janardan
Ramchandra Kulkarni and Ors. AIR 1960 SC 794: 1960 SCR
85; Manphul Singh Sharma vs. Ahmedi Begum (Smt) (since
deceased) through her alleged legal representative/
successors (A) M.A. Khan (8) Delhi Wakf Board (1994) 5
E SCC 465: 1994 (2) Suppl. SCR 495; Commissioner of
Income Tax, Bangalore vs. R. Sharadamma (1996) 8 SCC
388: 1996 (3) SCR 1200; Commissioner of Income Tax,
Orissa vs. Dhadi Sahu 1994 Supp (1) SCC 257: 1992 (3)
Suppl. SCR 168; Messrs. Hoosein Kasam Dada (India) Ltd.
vs. The State of Madhya Pradesh and Ors. AIR 1953 SC 221:
F
1953 SCR 987 - relied on.
Colonial Sugar Refining Company Ltd. vs. Irving 1905
AC 369 - referred to.
G
2.1. The finding recorded by the High Court that the
Commission has no authority to issue directions or to
impose penalty as it had become functus officio is not
correct. [Para 32) [940-E]
2.2. The language employed in Section 22(1 )(d) has
H to be understood in its proper connotative expanse. It
H.P. STATE ELECT. REGULATORY COMM. v. H.P.
919
STATE ELECT. BOARD
enables the State Commission to carry out the function
A
for promoting competition, efficiency and economy in the
activities of the electricity industry to achieve the objects
and purposes of the Act. The State Commission under
Section 22(1)(d) was conferred power to address various
facets and there is no reason that the terms, namely,
8
"efficiency, economy in the activity of the electricity
industry" should be narrowly construed. That apart, it
would not be seemly to say that under Section 22(1) of
the 1998 Act, the Commission had only the power to fix
the tariff and no other power. Had that been so, the c
legislature would not have employed such wide
language in Section 22(1 )(d). The powers enumerated
under sub-section (2) of Section 22 are more enumerative
in nature and the jurisdiction conferred comparatively
covers more fields. In the present case, if the directions 0
issued by the Commission are read in proper perspective,
the same really do not travel beyond the power conferred
under Section 22(1 )(d) of the 1998 Act. All of them can be
connected with the tariff fixation and with the associated
concepts, namely, purpose to promote competition,
E
efficiency and economy in the activities of the electricity
industry regard being had to achieve the objects and
purposes of the Act. [Para 33) [941-E-H; 942-A-B]
2.3. It is not inapposite to take note of the fact that
the Board had agreed to comply and submit the report.
F
Though the Commission later on has found some fault
with the Board, yet it is factually found on a close perusal
of the explanation by the Board that there has been real
substantial compliance with the directions. In this factual
backdrop, it was not correct on the part of the G
Commission to impose penalty on the Board. However,
under the 2003 Act, constitution of the State Commission
is governed by Section 82. Section 86 deals with the
function of the State Commission. On a reading of Section
86 it is found that at present no notification is required
H
920
SUPREME COURT REPORTS
(2013] 11 S.C.R.
A to be issued to confer any power on the State
Commission. It is conferred and controlled by the statute.
If anything else is required to be done in praesenti, the
Commission is at liberty to proceed under the provisions
of the 2003 Act. It is clarified, that grant of liberty may not
B be understood to have said that the Commission can take
any action arising out of its.earlier order dated 29.10.2001
or any subsequent orders passed thereon. [Para 34]
[942-C-F]
c
D
E
F
G
H
Case Law Reference:
(1955) 1 SCR 893
relied on
Para 18
1960 SCR 85
relied on
Para 18
1994 (2) Suppl. SCR 495 relied on
Para 18
1996 (3) SCR 1200
relied on
Para 18
1992 (3) Suppl. SCR 168 relied on
Para 18
1953 SCR 987
relied on
Para 20
1957 SCR 488
followed
Para 21
1905 AC 369
referred to
Para 21
2001 (2) Suppl. SCR 195 relied on
Para 27
2000 (1) SCR 518
relied on
Para 27
1980 (1) SCR 684
relied on
Para 28
2006 (4) Suppl. SCR 81
relied on
Para 29
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6128 of 2009.
From the Judgment & Order dated 21.11.2007 of the High
Court at Shimla in FAQ No. 493 of 2002.
WITH
H.P. STATE ELECT. REGULATORY COMM. v. H.P.
921
-
STATE ELECT. BOARD
C.A. Nos. 6129, 6130, 6131, 6132 & 6133 of 2009.
A
Rana S. Biswas, Sunil Kumar Sharma, Matrugupta Mishra
(for Sharmila Upadhyay for the Appellants.
Anand K. Ganeshan, K.V. Mohan for the Respondent.
The Judgment of the Court was delivered by
B
DIPAK MISRA, J. 1. These appeals, by special leave, are
directed against the common Judgment and order dated
21.11.2007 passed by the High Court of Himachal Pradesh in c
FAOs (Ord.) Nos. 489, 490, 491, 492, 493 & 494 of 2002
whereby the learned Single Judge overturned the decision
·dated 17.08.2002 rendered by the Himachal Pradesh State
Electricity Regulatory Commission (for short, "the Commission")
constituted under the provisions of Chapter IV of Electricity 0
Regulatory Commission Act, 1998 (hereinafter referred to as
"the 1998 Act").
2. The controversy that has emerged for consideration
being common to all the appeals, we shall adumbrate the facts
E
from Civil Appeal No. 6128 of 2009 for the sake of
convenience.
3. The facts requisite to be stated are that the Commission
was established for rationalization of electricity tariff, transparent
policies regarding subsidies, promotions of efficient and
F
environmentally benign policies and for matters connected
therewith or incidental thereto. In exercise of the power
conferred on it under Sections 22 and 29 of the 1998 Act the
Commission vide order dated 29.10.2001 determined the tariff
applicable for electricity in the State of Himachal Pradesh.
G
While determining the tariff it also issued certain directions
which are as follows:-
(a)
"Furnishing of information and also periodical
reports with respect to the value of the assets and
H
922
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2013) 11 S.C.R.
capital projects of the Board.
. (b)
Replacement of all dead and defective meters by
electronic meters from 31st March, 2002 onwards
and reporting the status, as on 31st December,
2001 by 31st March, 2002.
(c)
To develop and implement a comprehensive public
interaction programme through Consultative
Committees, preparation, publication and
advertisement of material helpful to various
consumer interest groups and general public on
various activities of the utility, dispute settlement
mechanism, accidents, rights and obligations of the
consumers etc. Accordingly, the Board was
directed on September 22, 2001, to submit its plan
for approval of the commission and implement the
same by 31st March, 2002.
(d)
Submission of plans, short term and long term, by
31st March, 2002, for rationalization of existing
manpower for improvements in efficiency through
scientific engineering resources management,
improving and updating the organization strategies
and systems and skills of human resources for
increased productivity. The Board in its affidavit of
3rd October, 2001 has agreed to comply and
submit the above study by the above-mentioned
date.
(e)
Submission of a plan by 31st March, 2002, for
reducing loss, both technical and non-technical,
together with relevant load flow studies and details
of investment requirement to achieve the planned
reductions. The Commission also observed in its
interim order of 20th September, 2001 passed in
the course of public hearing that investments must
aim at reducing the T & D losses and better quality
H.P. STATE ELECT. REGULATORY COMM. v. H.P.
923
STATE ELECT. BOARD [DIPAK MISRA, J.]
of supply and service to the consumers as it A
happened in the case of Palampur area which has
mixed domestic and commercial loading. The
strategy can be considered for adoption elsewhere
also to produce similar results. The Board has
. confirmed and undertaken to complete this study by
B
31st March, 2002
(f)
To do a comparison of the capital costs of Malana
Plant with the capital costs of HPSEB Plants and
submit a report on this by 31st March, 2002."
4. Be it noted, the commission issued the directions as a
part of the tariff order and the said directions were contained
in paragraphs 7.1, 7.4, 7.5, 7.6, 7.8, 7.9 and 7.13. The
Commission in paragraphs 7.31 and 7.32 had further stated
c
as follows:-
D
"7.31 The Commission would monitor the progress in
complying with these directions. The Commission
accordingly directs the Board to furnish the information on
milestones required in column 3 of the Annex (7.1) by
E
December 31, 2001. Subsequent reports should be sent
every quarter, providing the information required in
columns 4, 5, 6 and 7. The first report should be submitted
by January 15, 2002.
7.32 In the directions where the Board is to comply by the
F
next tariff petition and the same is not filed within next six
months, the directions should be complied within the next
six months."
5. Thereafter, the Commission while discharging its G
regulatory functions proceeded to review the directions issued
by it and found that part of the tariff had not been complied with.
In view of the complaints, the Commission issued notice on
23.7.2002 under Section 45 of the 1998 Act. Pursuant to the
aforesaid notice the Board filed its reply raising the question
H .
924
SUPREME COURT REPORTS
[2013] 11 S.C.R.
A
of jurisdiction and competence of the Commission to issue the
aforesaid directions. The Commission while dealing with the
same framed number of issues and thereafter came to hold that
the Board had not fully complied with the directions of the
Commission, and accordingly imposed penalty of Rs.5000/- on
B
the Board with a further stipulation that the same shall be
deposited within a period of 30 days. The Board was directed
to submit further steps taken by it before the Commission.
6. Being aggrieved by the aforesaid order, the Board
C
preferred an appeal under Section 27 of the 1998 Act forming
the subject matter of FAO No. 489 of 2002.
7. During the pendency of the appeal, the 1998 Act was
repealed and the Electricity Act, 2003 (for short, "the 2003 Acf')
came into force. The 2003 Act was brought in to consolidate
D the laws relating to generation, transmission, distribution,
trading and use of electricity and generally for taking measures
conducive to development of electricity industry, promoting
competition therein, protecting interest of consumers and supply
of electricity to all areas, rationalisation of electricity tariff,
E
ensuring transparent policies regarding subsidies, promotion
of efficient and environmentally benign policies, constitution of
Central Electricity Authority, Regulatory Commissions and
establishment of Appellate Tribunal and for matters connected
therewith or incidental thereto.
F
8. At this juncture, it is apt to state that the batch of appeals
was taken up for hearing by the learned Single Judge, learned
counsel for the respondent-Commission raised a preliminary
objection about the maintainability of the appeals. It was
G contended that as under Section 110 of the 2003 Act the
appellate tribunal has already been established and an appeal
would lie to the appellate tribunal as contemplated under
Section 111 of the said Act, the High Court had lost its
jurisdiction to hear the appeals. The learned Single Judge took
H
note of the fact that the appeals were preferred under Section
H.P. STATE ELECT. REGULATORY COMM. v. H.P.
925
STATE ELECT. BOARD [DIPAK MISRA, J.]
27 of the 1998 Act and at that stage an appeal was A
maintainable before the High Court. The High Court referred
to the repealed Act and the language employed under Section
185 of the Act of 2003 and Section 6 of the General Clauses
Act, 1897 and analyzing the gamut of the provisions came to
hold that the appeal preferred under the 1998 Act could be
B
heard by the High Court even after coming into force of the
2003 Act.
9. After dwelling upon the maintainability of the appeal the
learned Single Judge delved into the merits of the appeal and c
for the aforesaid purpose, he studiedly scrutinized the language
employed in Section 22 of the 1999 Act and came to hold that
when the Commission was approached by the Board to
determine the tariff for electricity, the Commission was called
upon to discharge the functions mentioned in sub-Section 1 (a)
0
of Section 22 of the 1998 Act and under the said provision it
had the jurisdiction to issue further directions. Thereafter, the
learned Single Judge proceeded with regard to the monitoring
facet by the Commission, appreciated the directions and,
eventually, opined thus:-
E
"Commission's observation that the directions were issued
in the larger interest of the Board and the consumers is
also out of the context. As already noticed, the Commission
was approached by the Board to fix the tariff of electricity.
Once the tariff had been fixed the job of the Commission
F
was over. It became functus officio once the function of
determination of tariff had been performed. The interests
of the Board and the consumers were required to be
borne in mind and protected while fixing the tariff. The
Commission could not have arrogated to itself and G
superintendence and control of the Board on the
pretension of watching and protecting the larger interests
of the Board and the consumers."
As stated earlier, the aforesaid judgment and order are the
H
926
SUPREME COURT REPORTS
[2013] 11 S.C.R.
A
subject matter of assail before us in these appeals.
B
c
D
E
F
G
H
10. Mr. Jaideep Gupta, learned senior counsel,
questioning the sustainability of the judgment of the High Court
has raised the following submissions:-
(a)
The High Court has absolutely flawed by coming to
hold that appeal was maintainable before it despite
a separate forum having been created and
provision for appeal being engrafted under Section
111 of the 2003 Act. It is urged by him that the High
Court has totally misguided itself in interpreting the
Repeal and Saving provision contained in Section
185 of the 2003 Act.
(b)
The High Court has erred in holding that despite the
repeal of the 1998 Act and coming into force of the
2003 Act the right to prefer an appeal under the old
Act would still survive. It is urged by him that from
the schematic content of the 2003 Act it is
graphically clear that a contrary intention of the
legislature is clear from the 2003 Act that the appeal
has to lie to the appellate tribunal and the High
Court has been divested of its appellate jurisdiction
to deal with the pending appeals.
(c)
The view expressed by the High Court that the
Board had approached the Commission to fix the
electricity tariff and once the said tariff had been
fixed by the Commission it became functus officio
and it could not have arrogated to itself the power
of superintendence and control of the Board on the
pretext of monitoring of larger public interest, is
sensitively susceptible. Learned counsel would
submit that the Commission had been conferred
power under Section 22 ( 1) of the 1998 Act by
virtue of issuance of notification by the State of
H.P. STATE ELECT. REGULATORY COMM. v. H.P.
927
STATE ELECT. BOARD [DIPAK MISRA, J.]
Himachal Pradesh but the High Court failed to
A
appreciate and scrutinize the effect of conferment
of power under the said provision as a consequence
of which an indefensible order came to be passed.
11. Mr. Anand K. Ganesan, learned counsel appearing for
B
the respondent-Board, resisting the aforesaid submissions
contended as follows:-
(i}
The conclusion arrived at by the High Court that the
appeal can be heard despite repeal of the 1998 c
Act and introduction of the 2003 Act on the basis
of Section 6 of the General Clauses Act 1897 and
the provision contained in Section 185(5) of the
2003 Act cannot be found fault with, for there is no
express provision to take away the vested right of
appeal and no contrary intention can be gathered
D
from any of the provisions of the new enact~ent.
{ii)
The right of appeal before the High Court was a
vested right and the same has not been taken away
by the 2003 Act and, therefore, the opinion
E
expressed by the High Court being impregnable
deserves to be concurred with by this Court. Right
of forum as regards an appeal is also a vested
right unless abolished or altered by subsequent law
and in the case at hand the 2003 Act does not
F
extinguish the said vested right and hence, the
judgment and order passed by the High Court are
impeccable.
{iii}
The Commissio.n under the 1998 Act could not have
issued directions inasmuch as the notification
G
issued by the State had only conferred powers
under Section 22 (1} of the 1998 Act and not under
any other provisions, and hence, the directions
issued travel beyond the power conferred which
have been appositely nullified. It is further argued
H
A
B
\
c
·D
E
F
G
H
928
SUPREME COURT REPORTS
[2013) 11 S.C.R.
that though the finding of the High Court that the
Commission had become functus officio may not
. be a correct expression in law but directions issued
being without jurisdiction, the Commission could not
have been proceeded and imposed penalty.
Alternatively, it is submitted that even if the issue
of jurisdiction is determined in favour of the
Commission. The directions issued by it having
been substantially complied with by the respondent
and there being no willful and deliberate noncompliance, on the facts .and circumstances
imposition of penalty was not justified.
12. First, we shall proceed to deal with the jurisdiction of
the High Court to hear the appeal after coming into force the
2003 Act. The Board, as is manifest, was grieved by order
imposing penalty. The relevant part of the order of the
Commission reads as follows:-
"The instant matter is one of the first incidents of the
contravention of the Commission orders/ directions
attributable to the conduct of Respondents I objectors. The
commission has determined the quantum of fine to be
imposed after considering the nature and extent of noncompliance and other relevant factor as per Regulation 51
(iii) of HPERC's Conduct of Business Regulations, 2001
under the overall provision of Section 45 of the ERC Act,
1998. Penalty of Rs. 5,000/- only is hereby imposed upon
Respondent No. 7-HPSEB. The penalty be deposited with
the Secretary of the Commission within a period of 30 days
from today. Additional penalty for continuing failure @ Rs.
300/- only per day is further imposed on HPSEB and shall
be ipso facto recoverable immediately after January 15,
2002 until the date of compliance to the Commission's
satisfaction to be so notified by the Commission. The
Board shall submit the Status I Action taken reports on the
fifteenth day of every month until compliance is made."
H.P. STATE ELECT. REGULATORY COMM. v. H.P.
929
STATE ELECT. BOARD [DIPAK MISRA, J.]
13. By the time the order was passed by the Commission
A
it was subject to challenge in appeal before the High Court
under Section 27 of the 1998 Act, which reads as follows:-
"27. Appeal· to High Court in certain cases. - (1) Any
person aggrieved by any decision or order of the State
8
Commission may file an appeal to the High Court.
(2) Except as aforesaid, no appeal or revision shall lie to
any court from any decision or order of the State
Commission.
(3) Every appeal under this section shall be preferred
within sixty days from the date of communication of the
decision or order of the State Commission to the person
aggrieved by the said decision or order.
c
D
Provided that the High Court may entertain an appeal after
the expiry of the said period of sixty days if it is satisfied
that the aggrieved person had sufficient cause for not
preferring the appeal within the said period of sixty days."
14. It is not in dispute that when the appeals were preferred
E
under Section 27 of the 1998 Act pending before the High Court
awaiting adjudication the 2003 Act was enacted. Chapter XI
of the 2003 Act deals with "Appellate Tribunal for Electricity".
Section 110 deals with establishment of appellate tribunal. The
said provision reads as under:-
F
"110. Establishment of Appellate Tribunal. - The
Central Government shall, by notification, establish an
Appellate Tribunal to be known as the Appellate Tribunal
for Electricity to hear appeals against the orders of the
G
adjudicating officer or the Appropriate Commission [under
this Act or any other law for the time being in force]."
15. Section 111 provides for an appeal to the appellate
tribunal. Sub-Sections (1) and ,(2) being relevant for the present
H
930
SUPREME COURT REPORTS
[2013] 11 S.C.R.
A purpose are reproduced below:-
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F
"111. Appeal to Appellate Tribunal - (1) Any person
aggrieved by an order made by an adjudicating officer
under this Act (except under section 127) or an order made
by the Appropriate Commission under this Act may prefer
an appeal to the Appellate
Tribunal for Electricity: Provided that any person appealing
against the order of the adjudicating officer levying and
penalty shall, while filling the appeal , deposit the amount
of such penalty: Provided further that where in any
particular case, the Appellate Tribunal is of the opinion that
the deposit of such penalty would cause undue hardship
to such person, it may dispense with such deposit subject
to such conditions as it may deem fit to impose so as to
safeguard the realisation of penalty.
(2) Every appeal under sub-section (1) shall be filed within
a period of forty-five days from the date on which a copy
of the order made by the adjudicating officer or the
Appropriate Commission is received by the aggrieved
person and it shall be in such form, verified in such manner
and be accompanied by such fee as may be prescribed:
Provided that the Appellate Tribunal may entertain an
appeal after the expiry of the said period of forty-five days
if it is satisfied that there was sufficient cause for not filing
it within that period."
16. From the aforesaid provision it is clear as crystal that
a different forum of appeal has been created under the new
G legislation with certain conditions.
17. At this stage, we may usefully refer to Section 185
which deals with Repeal and Saving. It reads as follows:-
" 185. Repeal and saving. -(1} Save as otherwise
H
provided in this Act, the Indian Electricity Act, 1910 (9 of
H.P. STATE ELECT. REGULATORY COMM. v. H.P.
931
STATE ELECT. BOARD [DIPAK MISRA, J.]
1910, the Electricity (Supply) Act, 1948 (54 of 1948) and
A
the Electricity Regulatory Commissions Act, 1998 (14 of
1998) are hereby repealed.
(2) Notwithstanding such repeal, -
(a) anything done or any action taken or purported to have
B
been done or taken including any rule, notification,
inspection, order or notice made or issued or any
appointment, confirmation or declaration made or any
licence, permission, authorisation or exemption granted or
any document or instrument executed or any direction
C
given under the repealed laws shall, in so far as it is not
inconsistent with the provisions of this Act, be deemed to
have been done or taken under the corresponding
provisions of this Act.
(b) the provisions contained in sections 12 to 18 of the
Indian Electricity Act, 1910 (9 of 1910) and rules made
thereunder shall have effect until the rules under section 67
to 69 of this Act are made;
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(c) The Indian Electricity Rules, 1956 made under section
37 of the Indian Electricity Act, 1910 (9of1910) as it stood
before such repeal shall continue to be in force till the
regulations under section 53 of this Act are made;
(d) all rules made under sub-section (1) of section 69 of
F
the Electricity (Supply) Act, 1948 (54 of 1948) shall
continue to have effect until such rules are rescinded or
modified, as the case may be;
(e) all directives issued, before the commencement of this
G
Act, by a State Government under the enactments
specified in the Schedule shall continue to apply for the
period for which such directions were issued by the State
Government.
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[2013) 11 S.C.R.
(3) The provisions of the enactments specified in the
Schedule, not inconsistent with the provisions of this Act,
shall apply to the States in which such enactments are
applicable.
(4) The Central Government may, as and when considered
necessary,.by notification, amend the Schedule.
(5) Save as otherwise provided in sub-section (2), the
mention of particular matters in that section, shall not be
held to prejudice or affect the general application of
section 6 of the General Clauses Act, 1897 (10 of 1897),
with regard to the effect of repeals."
18. It is submitted by Mr. Jaideep Gupta, learned senior
Counsel that when the 1998 Act has been repealed and a new
D legislation has come into force the intention of the legislature
is clear to the effect that the appeals are to be heard by the
newly constituted appellate tribunal. Learned senior counsel
would also contend that if the interpretation placed by the High
Court is accepted then there would be two appellate authorities
E after the enactment of the 2003 Act which would lead to an
anomalous situation. In this context Mr. Gupta has commended
us to the authorities in State of Punjab v. Mohar Singh\ Brihan
Mahara.shtra Sugarsyndicate Ltd. v. Janardan Ramchandra
Kulkarni and Others2, Manphul Singh Sharma v. Ahmedi
F Begum (Smt) (since deceased) through her alleged legal
representative/successors (A) M.A. Khan (B) Delhi Wakf
BoarcP, Commissioner of Income Tax, Bangalore v. R.
Sharadamma4 and Commissioner of Income Tax, Orissa v.
Dhadi Sahu5.
G
1.
(1955) 1 SCR 893.
2.
AIR 1960 SC 794.
3.
(1994) 5 sec 465.
4.
(1996) 8 sec 388.
H 5.
1994 Supp (1) sec 257.
H.P. STATE ELECT. REGULATORY COMM. v. H.P.
933
STATE ELECT. BOARD [DIPAK MISRA, J.]
19. In Mohar Singh (supra), the Court has ruled thus:-
A
. "Whenever there is a repeal of an enactment, the
consequences laid down in section 6 of the General
Clauses Act will follow unless, as the section itself says, a
different intention appears. In the case of a simple repeal
there is scarcely any room for expression of a contrary
opinion. But when the repeal is followed by fresh legislation
on the same subject we would undoubtedly have to look
to the provisions of the new Act. but only for the purpose
B
of determining whether they indicate a different intention.
C
The line of enquiry would be. not whether the new Act
expressly keeps alive old rights and liabilities but whether
it manifests an intention to destroy them. We cannot
therefore subscribe to the broad proposition that section
6 of the General Clauses Act is ruled out when there is
repeal of an enactment followed by a fresh legislation.
Section 6 would be applicable in such cases also unless
D
the new legislation manifests an intention incompatible
with or contrary to the provisions of the section. Such
incompatibility would have to be ascertained from a
consideration of all the relevant provisions of the new law
E
and the mere absence of a saving clause is by itself not
material. It is in the light of these principles that we now
proceed to examine the facts of the present case."
[Underlining is ours]
F
20. In Messrs. Hoosein Kasam Dada (India) Ltd. v. The
State of Madhya Pradesh and others, 6 this Court was
considering the effect of amendment of provisions of Central
Provinces and Berar Sales Tax Act. Section 22(2) prior to the
amendment of the Act stipulated that no appeal against an
G
order of assessment with or without penalty could be
entertained by the appellate authority unless it was satisfied that
such amount of tax or penalty, or both, as the appellant had
6.
AIR 1953 sc·221.
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SUPREME COURT REPORTS
[2013] 11 S.C.R.
A admitted due to him had been paid. The amended provision
laid a postulate that appeal had to be admitted subject to the
satisfaction of proof of payment of tax in appeal to which the
appeal had been preferred. It was contended that the appellant
was covered under the unamended provision and that he had
B not admitted any tax and hence, he was not liable to deposit
any sum along with the appeal. It was urged before this Court
that the restriction imposed by the amending Act could not affect
his right to appeal as the same was a vested right prior to the
amendment at the time of commencement of the proceeding
c under the Act. Dealing with the said contention, the Court
opined that a right of appeal is not merely a matter of procedure
but a matter of substantive right. It was also held that the right
of appeal from the decision of an inferior tribunal to a superior
tribunal becomes vested in a party when proceedings are first
o initiated and before a decision is given by the inferior Court. It
has been further observed that such a vested right cannot be
taken away except by express enactment or necessary
intendment and an intention to interfere with or to impair or
imperil such a vested right cannot be presumed unless such
E intention is clearly manifested by express words or necessary
implication. Eventually, the Court ruled that as the old law
continues to exist for the purpose of supporting the pre-existing
right of appeal and that old law must govern the exercise and
enforcement of that right of appeal and there is no question of
F applying the amended provision preventing the exercise of that
right.
21. In this context, we may refer with profit to the
Constitution Bench judgment in Garikapati Veeraya v. N.
Subbiah Chaudhry and others. 7 In the said decision, the
G Constitution Bench referred to the leading authority of the privy
council in Colonial Sugar Refining Company Ltd. v. lrving8.
The Constitution Bench observed that the doctrine laid down
7.
AIR 1957 SC 540.
H 8.
1905 AC 369.
H.P. STATE ELECT. REGULATORY COMM. v. H.P.
935
STATE ELECT. BOARD [DIPAK MISRA, J.]
in the decision of the privy council in Colonial Sugar Refining
A
Company Ltd. (supra) has been followed and applied by the
Courts in India~ The passage that was quoted from the Privy
Council's judgment is as follows:-
"As regards the general principles applicable to the case
B
there was no controversy. On the one hand, it was not
disputed that if the matter in question be a matter of
procedure only, the petition is well founded. On the other
hand, if it be more than a matter of procedure, if it touches
a right in existence at the passing of the Act, it was
C
conceded that, in accordance with a long line of authorities
extending from the time of Lord Coke to the present day,
the appellants would be entitled to succeed. The Judiciary
Act is not retrospective by express enactment or by
necessary intendment. And therefore the only question is,
was the appeal to His Majesty in Council a right vested in
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the appellants at the date of the passing· of the Act, or was
it a mere matter of procedure? It seems to their Lordships
that the question does not admit of doubt. To deprive a
suitor in a pending action of an appeal to a superior
tribunal which belonged to him as of right is a very different
E
thing from regulating procedure. In principle, Their
Lordships see no difference between abolishing an appeal
altogether and transferring the appeal to a new tribunal. In
either case there is an interference with existing rights
contrary to the well-known general principle that statutes
F
are not to be held to act retrospectively unless a clear
intention to that effect is manifested."
22. Thereafter, the larger Bench referred to number of
·authorities and proceeded to cull out the principles as follows:-
G
"23. From the decisions cited above the following
principles clearly emerge:
'
(1) That the legal pursuit of a remedy, suit, appeal and
second appeal are really but steps in a series of
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936
SUPREME COURT REPORTS
[2013] 11 S.C.R.
A
proceedings all connected by an intrinsic unity and are to
be regarded as one legal proceeding.
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(ii) The right of appeal is not a mere matter of
procedure but is a substantive right.
(iit) Th~ institution of the suit carries with it the
implication that all rights of appea_I then in force are
preserved to the parties thereto till the rest of the career
of the suit.
-(iv) The right of appeal is a vested right and such a
right to enter the superior court accrues to the litigant and
exists as on and from the date the lis commences and
although it may be actually exercised when the adverse
judgment is pronounced such right is to be governed by
the law prevailing at the date of the institution of the suit
or proceeding and not by the law that prevails at the date
of its decision or at the date of the filing of the appeal.
(v) This vested right of appeal can be taken away
only by a subsequent enactment, if it so provides expressly
or by necessary intendment and not otherwise."
23. On a proper understanding of the authority in
Garikapati Veeraya (supra), which relied upon the Privy Council
decision, three basic principles, namely, (i) the forum of appeal
F available to a suitor in a pending action of an appeal to a
superior tribunal which belongs to him as of right is a very
different thing from regulating procedure; (ii) that it is an integral
part of the right when the action was initiated at the time of the
institution of action; and (iii) that if the Court to which an appeal
G lies is altogether abolished without any forum constituted in its
place for the disposal of pending matters or for lodgment of the
appeals, vested right perishes, are established. It is worth noting
that in Garikapati Veeraya (supra), the Constitution Bench ruled
that as the Federal Court had been abolished, the Supreme
H
H.P. STATE ELECT. REGULATORY COMM. v. H.P.
937
STATE ELECT. BOARD [DIPAK MISRA, J.]
Court was entitled to hear the appeal under Article 135 of the
A
Constitution, and no appeal lay under Article 133.