JSA represented Tata Power Delhi Distribution Ltd. (“TPDDL”) in Appeal challenging Delhi Electricity Regulatory Commission’s (“DERC”) Suo-moto review Order dated 29.09.2021 (“Suo-moto Order”) to retract its undertaking given to the Appellate Tribunal for Electricity (“APTEL”) by a Compliance Order dated 04.02.2021 to implement Judgment dated 30.09.2019 passed by APTEL in Appeal No. 246 of 2014 (“246 Judgment”).
Suo-moto Order, in effect, rendered otiose a series of Judgments and Orders of APTEL which have neither been stayed or recalled nor set aside by the Hon’ble Supreme Court. To justify its conduct, DERC had filed Review Petition (DFR) No. 38 of 2022 (“Review Petition”) seeking review of the 246 Judgment after lapse of two years and five months since the Judgement dated 30.09.2019 purportedly on grounds of suppression of facts and fraud alleged against TPDDL.
APTEL dismissed DERC Review Petition and allowed TPDDL appeal on 24.05.2022 to hold as under: –
- There is an inordinate time gap and omission (conscious as it must have been) on part of DERC in agitating grievances in Review Petition, knowing full well that such conduct would not be approved within the scope and ambit of review jurisdiction under Order 47 Rule 1 of CPC. [58]
- DERC has sought to set up a case under Section 151 of the Civil Procedure Code, 1908 (“CPC”) with intent to by-pass the objection of delay and laches and cover up its own defaults in not implementing the Judgments and Orders of APTEL. [58]
- Recall of its own Compliance Order by DERC is an abuse of process and a travesty of justice – beyond the scope of Order 47, Rule 1 of CPC read with Section 94 of the Electricity Act, 2003. [62]
- DERC’s endeavour to avoid compliance with Judgements and Orders of appellate authority seems to be part of a pattern which has been frowned upon in the past by previous decisions of APTEL on eight (8) occasions. [63]
- Suo-moto Order is not only in the teeth of Judgments and Orders passed by the APTEL as well as undertakings given by DERC itself but also destructive of the Constitutional scheme of rule of law, judicial propriety, and discipline of hierarchy of adjudicatory authorities. [70]
- Given the fact that claim of TPDDL was denied in Tariff Order for FY 2021-22 close on the heels of the Suo-moto Order, found bad in law, the caption of the press release issued by DERC on 30.09.2021 stating that there will be no hike in tariff comes across is populist. [78]
- DERC, being the forum of first instance, is expected to show deference and abide by the modified directives of the appellate authority subject to intervention by the Hon’ble Supreme Court. That is the requirement of hierarchical judicial discipline. [79]
- Conduct of DERC is in flagrant violation of hierarchical discipline, tantamount to overreach, an affront, and cannot be countenanced since the same threatens the rule of law, inviting anarchy. [80]
- DERC is duty-bound to pass necessary orders giving effect to the Compliance Order in relation to determination of tariff for relevant Control Periods including the period covered by the Tariff Order dated 30.09.2021, which it must now do without further delay or demur, at the earliest, not later than two (2) months of this Judgment. [81].
JSA team comprised Joint Managing Partner – Amit Kapur, Partner – Anupam Varma, Partner – Rahul Kinra, Senior Associate – Aditya Gupta, and Associate – Aditya Ajay, Hemant Khera and Manu Tiwari.
Aditya primarily focuses on Regulatory, Policy advisory and Dispute Resolution in Electricity, Renewable Energy and PPP Projects. He also has extensive experience in handling matters under the Insolvency and Bankruptcy Code, 2016.