Jindal Power Limited vs Power Grid Corporation of India Limited & Ors. on 7 July 2026

IN THE APPELLATE TRIBUNAL FOR ELECTRICITY (Appellate Jurisdiction) APL No. 171 OF 2019 & IA No. 1326 OF 2024 & IA No. 714 OF 2025 & IA No. 1001 OF 2025 APL No. 352 OF 2019 & IA No. 1331 OF 2024 & IA No. 750 OF 2025 & IA No. 755 OF 2025 & IA No. 251 OF 2026 APL No. 417 OF 2019 & IA No. 931 OF 2019 & IA No. 1354 OF 2024 & IA No. 1550 OF 2024 & IA No. 1687 OF 2024 & IA No. 1688 OF 2024 & IA No. 181 OF 2025 & IA No. 373 OF 2025 & IA No. 416 OF 2025 APL No. 24 OF 2020 & IA No. 1341 OF 2024 & IA No. 712 OF 2025 APL No. 29 OF 2020 & IA No. 1340 OF 2024 & IA No. 713 OF 2025 APL No. 31 OF 2020 & IA No. 1347 OF 2024 & IA No. 740 OF 2025 APL No. 42 OF 2020 & IA No. 1342 OF 2024 & IA No. 715 OF 2025 APL No. 269 OF 2019 & IA No. 1349 OF 2024 & IA No. 1365 OF 2020 & IA No. 710 OF 2025 APL No. 365 OF 2019 & IA No. 1350 OF 2024 & IA No. 717 OF 2025 APL No. 416 OF 2019 & IA No. 1338 OF 2024 & IA No. 716 OF 2025 APL No. 437 OF 2019 & IA No. 1329 OF 2024 & IA No. 2099 OF 2019 & IA No. 2199 OF 2019 & IA No. 767 OF 2025 APL No. 448 OF 2019 & IA No. 1325 OF 2024 & IA No. 252 OF 2020 & IA No. 768 OF 2025 APL No. 82 OF 2023 & IA No. 1348 OF 2024 & IA No. 256 OF 2026 APL No. 254 OF 2023 & IA No. 1328 OF 2024 & IA No. 766 OF 2025 & IA No. 770 OF 2025 APL No. 252 OF 2019 & IA No. 1339 OF 2024 & IA No. 1562 OF 2019 & IA No. 26 OF 2020 & IA No. 711 OF 2025 & IA No. 1002 OF 2025 APL No. 292 OF 2019 & IA No. 1351 OF 2024 & IA No. 147 OF 2020 & IA No. 1003 OF 2025 APL No. 322 OF 2019 & IA No. 1337 OF 2024 & IA No. 744 OF 2025 APL No. 336 OF 2019 & IA No. 635 OF 2024 & IA No. 797 OF 2019 & IA No. 553 OF 2022 & IA No. 554 OF 2022 & IA No. 322 OF 2025 & IA No. 1097 OF 2025 APL No. 37 OF 2021 & IA No. 1330 OF 2024 & IA No. 254 OF 2026 APL No. 87 OF 2021 & IA No. 1380 OF 2024 & IA No. 745 OF 2025 APL No. 460 OF 2022 & IA No. 1327 OF 2024 & IA No. 739 OF 2025 APL No. 459 OF 2023 & IA No. 1336 OF 2024 & IA No. 265 OF 2023 & IA No. 754 OF 2025 & IA No. 1004 OF 2025 & IA No. 253 OF 2026 APL No. 460 OF 2023 & IA No. 1335 OF 2024 & IA No. 257 OF 2023 & IA No. 756 OF 2025 & IA No. 250 OF 2026 APL No. 413 OF 2019 & IA No. 1324 OF 2024 & IA No. 721 OF 2025 & IA No. 252 OF 2026 APL No. 83 OF 2023 & IA No. 1352 OF 2024 & IA No. 720 OF 2025 &

IA No. 255 OF 2026 DFR No : 331 of 2025 & IA No. 1357 OF 2025 & IA No. 1358 OF 2025 & IA No. 1481 OF 2025 Dated: 07th July, 2026 Present: Hon`ble Mr. Virender Bhat, Judicial Member Hon`ble Mr. Ajay Talegaonkar, Technical Member (Electricity) In the matter of: APL No. 171 OF 2019 & IA No. 1326 OF 2024 & IA No. 714 OF 2025 & IA No.

Jindal Power Limited .... Appellant(s) Versus Power Grid Corporation of India Limited & Ors. .... Respondent(s)

Counsel on record for the Appellant(s) : Hemant Singh Nishant Kumar Lakshyajit Singh Bagdwal Ambuj Dixit Tushar Srivastava for App. 1

Counsel on record for the Respondent(s) : Suparna Srivastava for Res. 1

Prabhas Bajaj Priyanshu Tyagi Rishav Rai for Res. 3

Sumana Naganand Garima Jain Nidhi Gupta Tushar Kanti Mohindroo Arnav Khanna for Res. 9

S. Vallinayagam for Res. 10

Ranjitha Ramachandran Srishti Khindaria

Aneesh Bajaj for Res. 30

APL No. 352 OF 2019 & IA No. 1331 OF 2024 & IA No. 750 OF 2025 & IA No. 755 OF 2025 & IA No. 251 OF 2026 M/s Aryan MP Power Generation Private Limited .... Appellant(s) Versus Central Electricity Regulatory Commission & Ors. .... Respondent(s)

Counsel on record for the Appellant(s) : Matrugupta Mishra Swagatika Sahoo Nipun Dave Sudha Reddy Sonakshi Akanksha V. Ingole Satish Kumar Sharma Vanshika Saraf Kushagra Kundan for App. 1

Counsel on record for the Respondent(s) : for Res. 1

Suparna Srivastava for Res. 2

P.V. Dinesh Sindhu T.P Mukund .P. Unny R S Lakshman Ashwini Kumar Singh for Res. 4

S. Sriranga Subbanna Aishwarya Choudhary Garima Jain Balaji Srinivasan Sumana Naganand Medha M Puranik for Res. 11

S. Vallinayagam for Res. 12

Ranjitha Ramachandran Srishti Khindaria Aneesh Bajaj for Res. 31 APL No. 417 OF 2019 & IA No. 931 OF 2019 & IA No. 1354 OF 2024 & IA No. 1550 OF 2024 & IA No. 1687 OF 2024 & IA No. 1688 OF 2024 & IA No. 181 OF 2025 & IA No. 373 OF 2025 & IA No. 416 OF 2025 Association of Power Producers & Ors. .... Appellant(s) Versus Central Electricity Regulatory Commission & Ors. .... Respondent(s)

Counsel on record for the Appellant(s) : Parag P. Tripathi, Sr. Adv. Apoorva Misra Nitish Gupta Puja Priyadarshini Molshree Bhatnagar Shryeshth Ramesh Sharma Amrita Narayan Aditya K. Singh Himangini Mehta Nived Veerapaneni for App. 1

Parag P. Tripathi, Sr. Adv. Shaida Das Hemant Sahai Nitish Gupta Molshree Bhatnagar Shubhi Sharma Tushar Srivastava Nimesh Jha Nipun Sharma Rishabh Sehgal Paritosh Bisen Deepak Thakur Punyam Bhutani Varnika Tyagi Kamya Sharma Divyansh Kasana Samprati Singh for App. 2

Parag P. Tripathi, Sr. Adv.

Deepak Khurana Vineet Tayal Abhishek Bansal Tejasv Anand for App. 3

Parag P. Tripathi, Sr. Adv. Hemant Sahai Nitish Gupta Molshree Bhatnagar Shubhi Sharma Tushar Srivastava Nimesh Jha Nipun Sharma Rishabh Sehgal Shaida Das Paritosh Bisen Deepak Thakur Punyam Bhutani Varnika Tyagi Kamya Sharma Divyansh Kasana Samprati Singh for App. 4

Parag P. Tripathi, Sr. Adv. Mahesh Agarwal Rishi Agarwala Rohan Talwar for App. 5

Parag P. Tripathi, Sr. Adv. Apoorva Misra Nitish Gupta Puja Priyadarshini Molshree Bhatnagar Shryeshth Ramesh Sharma Amrita Narayan Aditya K. Singh Himangini Mehta Nived Veerapaneni for App. 6

Parag P. Tripathi, Sr. Adv. Hemant Sahai Nitish Gupta Molshree Bhatnagar Parichita Chowdhury

Puja Priyadarshini for App. 7

Parag P. Tripathi, Sr. Adv. Ravi Kishore Niraj Singh Deepak Jaiswal Rajshree Chaudhary for App. 8

Parag P. Tripathi, Sr. Adv. Hemant Sahai Nitish Gupta Molshree Bhatnagar Shubhi Sharma Tushar Srivastava Nimesh Jha Nipun Sharma Rishabh Sehgal Shaida Das Paritosh Bisen Deepak Thakur Punyam Bhutani Varnika Tyagi Kamya Sharma Divyansh Kasana Samprati Singh for App. 9

Counsel on record for the Respondent(s) : for Res. 1

Suparna Srivastava for Res. 2

Prabhas Bajaj Priyanshu Tyagi Rishav Rai Harsh Chauhan Rithvik Mathur for Res. 3

S. Sriranga Subbanna Sumana Naganand Balaji Srinivasan Medha M Puranik Aishwarya Choudhary Garima Jain

for Res. 8

S. Vallinayagam for Res. 9

R. Venkatramani, Attorney General M. G. Ramachandran, Sr. Adv. Ranjitha Ramachandran Srishti Khindaria Aneesh Bajaj for Res. 26 APL No. 24 OF 2020 & IA No. 1341 OF 2024 & IA No. 712 OF 2025 Himachal Sorang Power Pvt. Ltd. .... Appellant(s) Versus Central Electricity Regulatory Commission & Ors. .... Respondent(s)

Counsel on record for the Appellant(s) : Hemant Singh Lakshyajit Singh Bagdwal Soumya Singh Karan Govel Tushar Srivastava Shruti Awasthi Anirban Mondal for App. 1

Counsel on record for the Respondent(s) : for Res. 1

Suparna Srivastava for Res. 2

Sitesh Mukherjee Abhishek Kumar Aryaman Saxena Harneet Kaur Arjun Agarwal Karan Arora Sahil Mendiratta for Res. 34

Ravi Kishore Niraj Singh Prerna Singh

Rajshree Chaudhary for Res. 45

Ranjitha Ramachandran Srishti Khindaria Aneesh Bajaj for Res. 46 APL No. 29 OF 2020 & IA No. 1340 OF 2024 & IA No. 713 OF 2025 Vedanta Limited .... Appellant(s) Versus Central Electricity Regulatory Commission & Ors. .... Respondent(s)

Counsel on record for the Appellant(s) : Hemant Singh Shruti Awasthi Mridul Chakravarty Tushar Srivastava Anirban Mondal Lakshyajit Singh Bagdwal Soumya Singh for App. 1

Counsel on record for the Respondent(s) : for Res. 1

Suparna Srivastava for Res. 2

Arijit Maitra for Res. 26

Sitesh Mukherjee Karan Arora Arjun Agarwal Harneet Kaur Abhishek Kumar Aryaman Saxena Sahil Mendiratta for Res. 33

Ranjitha Ramachandran Srishti Khindaria

Aneesh Bajaj for Res. 46 APL No. 31 OF 2020 & IA No. 1347 OF 2024 & IA No. 740 OF 2025 IL and FS Tamil Nadu Power Company Limited .... Appellant(s) Versus Central Electricity Regulatory Commission & Ors. .... Respondent(s)

Counsel on record for the Appellant(s) : Hemant Singh Mridul Chakravarty Lakshyajit Singh Bagdwal Soumya Singh Karan Govel Tushar Srivastava Shruti Awasthi Anirban Mondal for App. 1

Counsel on record for the Respondent(s) : for Res. 1

Suparna Srivastava for Res. 2

Sitesh Mukherjee Aryaman Saxena Karan Arora Arjun Agarwal Harneet Kaur Abhishek Kumar Sahil Mendiratta for Res. 33

Ranjitha Ramachandran Srishti Khindaria Aneesh Bajaj for Res. 46 APL No. 42 OF 2020 & IA No. 1342 OF 2024 & IA No. 715 OF 2025 Jindal India Power Limited .... Appellant(s) Versus Central Electricity Regulatory Commission & Ors. .... Respondent(s)

Counsel on record for the Appellant(s) : Hemant Singh Hemant Singh Mridul Chakravarty Biju Mattam Sourav Roy Supriya Rastogi Agarwal Lakshyajit Singh Bagdwal Ankita Bafna Chetan Kumar Garg Nehul Sharma Harshit Singh Lavanya Panwar Alchi Thapliyal Sanjeev Singh Thakur Indrayudh Chowdhury for App. 1

Counsel on record for the Respondent(s) : for Res. 1

Suparna Srivastava for Res. 2

Sitesh Mukherjee Aryaman Saxena Abhishek Kumar Harneet Kaur Arjun Agarwal Karan Arora Sahil Mendiratta for Res. 33

Ravi Kishore Niraj Singh Prerna Singh Rajshree Chaudhary for Res. 44

Ranjitha Ramachandran Srishti Khindaria Aneesh Bajaj for Res. 46 APL No. 269 OF 2019 & IA No. 1349 OF 2024 & IA No. 1365 OF 2020 & IA No.

Vedanta Limited (Formerly Sesa Sterlite Limited) .... Appellant(s) Versus Power Grid Corporation of India Limited & Ors. .... Respondent(s)

Counsel on record for the Appellant(s) : Hemant Singh Nishant Kumar Lakshyajit Singh Bagdwal Ambuj Dixit Tushar Srivastava for App. 1

Counsel on record for the Respondent(s) : Suparna Srivastava for Res. 1

Prabhas Bajaj Priyanshu Tyagi Rishav Rai for Res. 3

S. Sriranga Subbanna Garima Jain Sumana Naganand Balaji Srinivasan Medha M Puranik Aishwarya Choudhary for Res. 10

S. Vallinayagam for Res. 11

Ranjitha Ramachandran Srishti Khindaria Aneesh Bajaj for Res. 31 APL No. 365 OF 2019 & IA No. 1350 OF 2024 & IA No. 717 OF 2025 MB Power (Madhya Pradesh) Limited .... Appellant(s) Versus Central Electricity Regulatory Commission & Ors. .... Respondent(s)

Counsel on record for the Appellant(s) : Hemant Sahai Nitish Gupta Molshree Bhatnagar Shubhi Sharma

Nimesh Jha Nipun Sharma Tushar Srivastava Shaida Das Aparna Tiwari Paritosh Bisen Deepak Thakur Punyam Bhutani Divyansh Kasana Kamya Sharma Samprati Singh Varnika Tyagi Amaan Ahmed Khan for App. 1

Counsel on record for the Respondent(s) : for Res. 1

Suparna Srivastava for Res. 2

Prabhas Bajaj Priyanshu Tyagi Rishav Rai for Res. 3

Ravi Kishore Niraj Singh Rajshree Chaudhary for Res. 4

Balaji Srinivasan S. Sriranga Subbanna Sumana Naganand Medha M Puranik Aishwarya Choudhary Anini Debbarman Garima Jain for Res. 10

S. Vallinayagam for Res. 11

Ranjitha Ramachandran Srishti Khindaria

Aneesh Bajaj for Res. 30 APL No. 416 OF 2019 & IA No. 1338 OF 2024 & IA No. 716 OF 2025 Himachal Sorang Power Pvt. Limited .... Appellant(s) Versus Powergrid Corporation of India ltd. & Ors. .... Respondent(s)

Counsel on record for the Appellant(s) : Hemant Singh Ambuj Dixit Tushar Srivastava Lakshyajit Singh Bagdwal Soumya Singh Ali Moid for App. 1

Counsel on record for the Respondent(s) : Suparna Srivastava for Res. 1

Ravi Kishore Niraj Singh Prerna Singh Rajshree Chaudhary for Res. 4

Anini Debbarman Balaji Srinivasan Garima Jain S. Sriranga Subbanna Sumana Naganand Medha M Puranik Aishwarya Choudhary for Res. 10

S. Vallinayagam for Res. 11

Ranjitha Ramachandran Srishti Khindaria Aneesh Bajaj for Res. 31

APL No. 437 OF 2019 & IA No. 1329 OF 2024 & IA No. 2099 OF 2019 & IA No. 2199 OF 2019 & IA No. 767 OF 2025 Adani Power Limited .... Appellant(s) Versus Powergrid Corporation of India ltd. & Ors. .... Respondent(s)

Counsel on record for the Appellant(s) : Hemant Singh Nishant Kumar Ambuj Dixit Tushar Srivastava Lakshyajit Singh Bagdwal Soumya Singh Karan Govel Mridul Chakravarty Ali Moid for App. 1

Counsel on record for the Respondent(s) : Suparna Srivastava for Res. 1

Balaji Srinivasan S. Sriranga Subbanna Sumana Naganand Medha M Puranik Aishwarya Choudhary Anini Debbarman Garima Jain for Res. 10

S. Vallinayagam for Res. 11

Ranjitha Ramachandran Srishti Khindaria Aneesh Bajaj for Res. 31 APL No. 448 OF 2019 & IA No. 1325 OF 2024 & IA No. 252 OF 2020 & IA No.

Adani Power Limited .... Appellant(s) Versus Powergrid Corporation of India ltd. & Ors. .... Respondent(s)

Counsel on record for the Appellant(s) : Hemant Singh Shruti Awasthi Tushar Srivastava Lakshyajit Singh Bagdwal Karan Govel Mridul Chakravarty Ali Moid for App. 1

Counsel on record for the Respondent(s) : Suparna Srivastava for Res. 1

Balaji Srinivasan S. Sriranga Subbanna Sumana Naganand Medha M Puranik Aishwarya Choudhary Anini Debbarman Garima Jain for Res. 10

S. Vallinayagam for Res. 11

Ranjitha Ramachandran Srishti Khindaria Aneesh Bajaj for Res. 31 APL No. 82 OF 2023 & IA No. 1348 OF 2024 & IA No. 256 OF 2026 Sarda Energy and Minerals Limited .... Appellant(s) Versus Central Electricity Regulatory Commission & Ors. .... Respondent(s)

Counsel on record for the Appellant(s) : Matrugupta Mishra Swagatika Sahoo Nipun Dave Sonakshi Akanksha V. Ingole Vanshika Saraf Kushagra Kundan for App. 1

Counsel on record for the Respondent(s) : for Res. 1

Suparna Srivastava for Res. 2

Ranjitha Ramachandran Srishti Khindaria Aneesh Bajaj for Res. 40 APL No. 254 OF 2023 & IA No. 1328 OF 2024 & IA No. 766 OF 2025 & IA No.

Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO) .... Appellant(s) Versus Central Electricity Regulatory Commission & Ors. .... Respondent(s)

Counsel on record for the Appellant(s) : S. Vallinayagam for App. 1

Counsel on record for the Respondent(s) : for Res. 1

Suparna Srivastava for Res. 2

Hemant Singh Mridul Chakravarty Biju Mattam Sourav Roy Supriya Rastogi Agarwal Chetan Kumar Garg Lakshyajit Singh Bagdwal Ankita Bafna Harshit Singh Nehul Sharma Alchi Thapliyal Sanjeev Singh Thakur Lavanya Panwar Indrayudh Chowdhury Devansh Pundir for Res. 9

S. Sriranga Subbanna Sumana Naganand Balaji Srinivasan Medha M Puranik Pallavi Sen Gupta Mohd Shahrukh Prateek Yadav Deepthi Cr for Res. 10

Hemant Singh Mridul Chakravarty Biju Mattam Sourav Roy Supriya Rastogi Agarwal Chetan Kumar Garg Lakshyajit Singh Bagdwal Ankita Bafna Harshit Singh Nehul Sharma Alchi Thapliyal Sanjeev Singh Thakur Lavanya Panwar Indrayudh Chowdhury Devansh Pundir for Res. 21

Ranjitha Ramachandran Srishti Khindaria Aneesh Bajaj for Res. 30 APL No. 252 OF 2019 & IA No. 1339 OF 2024 & IA No. 1562 OF 2019 & IA No. 26 OF 2020 & IA No. 711 OF 2025 & IA No. 1002 OF 2025 Jindal India Power Limited .... Appellant(s) Versus Power Grid Corporation of India Limited & Ors. .... Respondent(s)

Counsel on record for the Appellant(s) : Hemant Singh Hemant Singh Mridul Chakravarty Biju Mattam Sourav Roy Supriya Rastogi Agarwal Lakshyajit Singh Bagdwal

Ankita Bafna Chetan Kumar Garg Nehul Sharma Harshit Singh Lavanya Panwar Alchi Thapliyal Sanjeev Singh Thakur Indrayudh Chowdhury for App. 1

Counsel on record for the Respondent(s) : for Res. 1

Prabhas Bajaj Priyanshu Tyagi Rishav Rai for Res. 3

Anand K. Ganesan Swapna Seshadri Ashwin Ramanathan Utkarsh Sharma for Res. 8

S. Sriranga Subbanna Sumana Naganand Balaji Srinivasan Medha M Puranik Aishwarya Choudhary Garima Jain for Res. 10

S. Vallinayagam for Res. 11

Ranjitha Ramachandran Srishti Khindaria Srishti Khindaria Aneesh Bajaj for Res. 30 APL No. 292 OF 2019 & IA No. 1351 OF 2024 & IA No. 147 OF 2020 & IA No.

IL and FS Tamil Nadu Power Company Ltd. .... Appellant(s)

Versus Power Grid Corporation of India Limited & Ors. .... Respondent(s)

Counsel on record for the Appellant(s) : Hemant Singh Nishant Kumar Lakshyajit Singh Bagdwal Ambuj Dixit Tushar Srivastava Shariq Ahmed Jyotshna Khatri for App. 1

Counsel on record for the Respondent(s) : Suparna Srivastava for Res. 1

Prabhas Bajaj Priyanshu Tyagi Rishav Rai for Res. 3

S. Sriranga Subbanna Aishwarya Choudhary Garima Jain Sumana Naganand Balaji Srinivasan Medha M Puranik for Res. 10

S. Vallinayagam for Res. 11

Ranjitha Ramachandran Srishti Khindaria Aneesh Bajaj for Res. 31 APL No. 322 OF 2019 & IA No. 1337 OF 2024 & IA No. 744 OF 2025 Odisha Power Generation Corporation Ltd. .... Appellant(s) Versus Central Electricity Regulatory Commission & Ors. .... Respondent(s)

Counsel on record for the Appellant(s) : Divyanshu Bhatt Deep Rao Palepu Vishal Binod

Arjun Agarwal Syed Jafar Alam for App. 1

Counsel on record for the Respondent(s) : for Res. 1

Suparna Srivastava for Res. 2

Prabhas Bajaj Priyanshu Tyagi Rishav Rai for Res. 3

Ravi Kishore Niraj Singh Deepak Jaiswal Rajshree Chaudhary for Res. 4

S. Sriranga Subbanna Sumana Naganand Balaji Srinivasan Medha M Puranik Aishwarya Choudhary Garima Jain for Res. 10

S. Vallinayagam for Res. 11

Ranjitha Ramachandran Srishti Khindaria Aneesh Bajaj for Res. 31 APL No. 336 OF 2019 & IA No. 635 OF 2024 & IA No. 797 OF 2019 & IA No. 553 OF 2022 & IA No. 554 OF 2022 & IA No. 322 OF 2025 & IA No. 1097 OF

Moxie Power Generation Limited .... Appellant(s) Versus Power Grid Corporation of India Limited & Ors. .... Respondent(s)

Counsel on record for the Appellant(s) : Hemant Singh Mridul Chakravarty Biju Mattam Sourav Roy Lakshyajit Singh Bagdwal Harshit Singh Supriya Rastogi Agarwal Chetan Kumar Garg Pawan Singh Syed Fazl Askari Ankita Bafna Nehul Sharma Alchi Thapliyal Lavanya Panwar Sanjeev Singh Thakur Indrayudh Chowdhury Jay Lal Arun Lal Gaurav Prakash Pathak Akashaya Lal for App. 1

Counsel on record for the Respondent(s) : Suparna Srivastava for Res. 1

Prabhas Bajaj Priyanshu Tyagi Rishav Rai for Res. 3

S. Sriranga Subbanna Sumana Naganand Balaji Srinivasan Medha M Puranik Aishwarya Choudhary Garima Jain for Res. 10

S. Vallinayagam for Res. 11

Alok Shankar for Res. 31 APL No. 37 OF 2021 & IA No. 1330 OF 2024 & IA No. 254 OF 2026

Sarda Energy and Minerals Ltd. .... Appellant(s) Versus Central Electricity Regulatory Commission & Ors. .... Respondent(s)

Counsel on record for the Appellant(s) : Matrugupta Mishra Swagatika Sahoo Nipun Dave Sonakshi Akanksha V. Ingole Vanshika Saraf Kushagra Kundan for App. 1

Counsel on record for the Respondent(s) : for Res. 1

Suparna Srivastava for Res. 2

S. Vallinayagam for Res. 12

Ranjitha Ramachandran Srishti Khindaria for Res. 31 APL No. 87 OF 2021 & IA No. 1380 OF 2024 & IA No. 745 OF 2025 Odisha Power Generation Corporation Limited .... Appellant(s) Versus Central Electricity Regulatory Commission & Ors. .... Respondent(s)

Counsel on record for the Appellant(s) : Parth Parikh Deep Rao Palepu Arjun Agarwal Mohd Munis Siddique Shikha Sood for App. 1

Counsel on record for the Respondent(s) : for Res. 1

Ravi Kishore Niraj Singh

Prerna Singh Rajshree Chaudhary for Res. 12

Ravi Kishore Niraj Singh Prerna Singh Rajshree Chaudhary for Res. 45

Ranjitha Ramachandran Srishti Khindaria Aneesh Bajaj for Res. 46 APL No. 460 OF 2022 & IA No. 1327 OF 2024 & IA No. 739 OF 2025 Chhattisgarh State Power Distribution Company Limited .... Appellant(s) Versus Powergrid Corporation of India ltd. & Ors. .... Respondent(s)

Counsel on record for the Appellant(s) : Amit Kapur Hemant Singh Lakshyajit Singh Bagdwal Tushar Srivastava Soumya Singh Rishabh Sehgal Harshit Singh for App. 1

Counsel on record for the Respondent(s) : Suparna Srivastava for Res. 1

S. Vallinayagam for Res. 11

Ranjitha Ramachandran Srishti Khindaria Aneesh Bajaj for Res. 31 APL No. 459 OF 2023 & IA No. 1336 OF 2024 & IA No. 265 OF 2023 & IA No. 754 OF 2025 & IA No. 1004 OF 2025 & IA No. 253 OF 2026 M/s. Maruti Clean Coal and Power Limited .... Appellant(s)

Versus Central Electricity Regulatory Commission & Ors. .... Respondent(s)

Counsel on record for the Appellant(s) : Matrugupta Mishra Swagatika Sahoo Nipun Dave Sudha Reddy Sonakshi Akanksha V. Ingole Satish Kumar Sharma Vanshika Saraf Kushagra Kundan for App. 1

Counsel on record for the Respondent(s) : for Res. 1

Manoj Kumar Dubey for Res. 3

Ranjitha Ramachandran Srishti Khindaria Aneesh Bajaj for Res. 4 APL No. 460 OF 2023 & IA No. 1335 OF 2024 & IA No. 257 OF 2023 & IA No. 756 OF 2025 & IA No. 250 OF 2026 M/s. Maruti Clean Coal and Power Limited .... Appellant(s) Versus Central Electricity Regulatory Commission & Ors. .... Respondent(s)

Counsel on record for the Appellant(s) : Matrugupta Mishra Swagatika Sahoo Nipun Dave Sudha Reddy Sonakshi Akanksha V. Ingole Satish Kumar Sharma Vanshika Saraf Kushagra Kundan for App. 1

Counsel on record for the Respondent(s) : for Res. 1

Ranjitha Ramachandran Srishti Khindaria Aneesh Bajaj for Res. 6 APL No. 413 OF 2019 & IA No. 1324 OF 2024 & IA No. 721 OF 2025 & IA No.

Madhya Bharat Power Corporation Limited .... Appellant(s) Versus Central Electricity Regulatory Commission & Ors. .... Respondent(s)

Counsel on record for the Appellant(s) : Matrugupta Mishra Swagatika Sahoo Nipun Dave Sonakshi Akanksha V. Ingole Vanshika Saraf Kushagra Kundan for App. 1

Counsel on record for the Respondent(s) : for Res. 1

Suparna Srivastava for Res. 2

S. Vallinayagam for Res. 12

Ranjitha Ramachandran Srishti Khindaria Aneesh Bajaj for Res. 31 APL No. 83 OF 2023 & IA No. 1352 OF 2024 & IA No. 720 OF 2025 & IA No.

Madhya Bharat Power Corporation Limited .... Appellant(s) Versus Central Electricity Regulatory Commission & Ors. .... Respondent(s)

Counsel on record for the Appellant(s) : Matrugupta Mishra Swagatika Sahoo Nipun Dave Sonakshi Akanksha V. Ingole Vanshika Saraf Kushagra Kundan for App. 1

Counsel on record for the Respondent(s) : for Res. 1

Suparna Srivastava for Res. 2

Ranjitha Ramachandran Srishti Khindaria Aneesh Bajaj for Res. 40 DFR No : 331 of 2025 & IA No. 1357 OF 2025 & IA No. 1358 OF 2025 & IA No.

Sprng Vayu Vidyut Private Limited & Anr. .... Appellant(s) Versus Central Electricity Regulatory Commission & Ors. .... Respondent(s)

Counsel on record for the Appellant(s) : Deep Rao Palepu Arjun Agarwal Shikha Sood Parth Parikh Iqra Khan Prajeet Ghosh for App. 1

Arjun Agarwal Shikha Sood Parth Parikh Iqra Khan Prajeet Ghosh for App. 2

Counsel on record for the Respondent(s) : for Res. 1

Sumana Naganand Garima Jain Tushar Kanti Mohindroo Nidhi Gupta Arnav Khanna Vismaya Simha for Res. 10

O R D E R

PER HON’BLE MR. AJAY TALEGAONKAR, TECHNICAL MEMBER

1. We shall, in this order, be dealing with the plea raised by the appellants for recusal of one of us namely Mr. Ajay Talegaonkar, Technical Member, from hearing the applications filed by the respondent Central Transmission Utility of India Limited (CTUIL) seeking vacation of the interim order dated 08.10.2020 passed in these appeals.

2. Before adverting to the rival submissions of the parties on the aspect of recusal, we find pertinent to note in brief the relevant facts and circumstances upon which the said plea of recusal is founded.

3. The appellants are the independent power producers and have, in these appeals, impugned the order dated 08.03.2019 passed by Central Electricity Regulatory Commission (hereinafter referred to as “CERC” or “the Commission”) in petition no.92/MP/2015 wherein the Commission inter alia, provided a methodology/formula for computation of relinquishment charges under Regulation 18 of the Central Electricity Regulatory Commission (Grant of Connectivity, Long Term Open Access and Medium Term Open Access in Inter State Transmission and Related

Matters) Regulations, 2009 (hereinafter referred to as the “2009 Connectivity Regulations”).

4. It appears that Kerala State Electricity Board Ltd. (KSEBL) had filed a petition before the CERC bearing no.92/MP/2014 challenging the denial of Medium Term Open Access by CTUIL for which the applications, on behalf of the Board, were made by NVVN Limited and PTC India Ltd. Several other petitions also came to be filed before the CERC by various interstate transmission users desiring relinquishment of long-term access rights due to various reasons. Upon hearing all the stakeholders, the CERC disposed of the petitions vide order dated 16.02.2015 observing that as per Regulation 18 of the 2009 Connectivity Regulations, Long Term Access (in short LTA) may be relinquished by paying the compensation for the stranded capacity.

5. Subsequently, CTUIL filed petition no.92/MP/2015 bringing to the notice of CERC certain difficulties encountered by it in implementing the directions given in order dated 16.02.2015 passed in petition no.92/MP/2014. CTUIL expressed difficulty in assessing stranded capacity on account of meshed network of the Inter State Transmission System. According to the CTUIL identification of utilization/non-utilization of the transmission elements in a meshed network for a long period is not possible except for dedicated transmission lines as utilization/non- utilization of various elements of the grid would depend on a large number of factors like generation dispatch, seasonal load variation, market mechanism etc. Per contra, it was contended on behalf of the generators that there should not be any relinquishment charges in a meshed network as there would be no unutilized or stranded capacity, and if at all, there

has to be some charge on relinquishment of LTA, it should be levied only if there is positive determination of stranded capacity.

6. Upon taking note of the rival submissions on behalf of the parties, CERC vide order dated 28.08.2015 constituted a committee to, inter alia, suggest the methodology for assessment/determination of stranded capacity in case of relinquishment of LTA rights and alternative method to compute relinquishment charges and mode of recovery of some charges and to suggest amendments, if any, required to be made to the existing provisions of Connectivity Regulations to make process of relinquishment of LTA rights and calculation of compensation simple, fair and equitable keeping in view the need of any expansion of ISTS network. The Expert Committee constituted by the Commission comprised of following members: - i. Shri Pravinbhai Patel, Former Chairperson, GERC ii. Shri V J Talwar, Former Member Technical, APTEL iii. Shri Ashok Khurana, Director General, APP iv. Shri Mrutyunjay Sahoo, Ex-Additional Chief Secretary, GoAP v. Shri S K Soonee, CEO, POSOCO vi. Shri Ajay Talegaonkar, SE, NRPC vii. Representative of CTU (Ms. Seema Gupta, COO (CTU- plg), POWERGRID) viii. Representative of CEA (Shri Pardeep Jindal, Director, CEA) ix. Shri Akhil Kumar Gupta, Joint Chief (Engg), CERC, Convenor and Member Secretary of the Committee

7. As is seen, I was also a member of the Expert Committee in the capacity of Superintending Engineer in Northern Regional Power Committee (NRPC) as I then was.

8. The terms of reference for the committee were as under: - a) Identify the events/circumstances which are likely to result in relinquishment of long term access right by an LTA customer in terms of the provisions of the Connectivity Regulations. b) Suggest the methodology(ies) for assessment/determination of the stranded capacity in case of relinquishment of long term access right by a long term customer, keeping in view the meshed network of the inter-State transmission system. c) Alternative methodology for computation of relinquishment charges. d) The manner and mode of recovery of the relinquishment charges e) Any other suggestion that the Committee considers appropriate in the light of the suggested terms of reference by the parties. f) Suggest changes, if any, required to be made to the existing provisions of the Connectivity Regulations to make the process of relinquishment of long term access right and calculation of compensation therefor simple, fair and equitable keeping in view the need for expansion of ISTS network.

9. It is to be noted that Ms. Seema Gupta, who is at present officiating as Chairperson of this Tribunal, was also nominated by CTU as member

of the Committee as she was holding the post of COO (CTU-Plg) Power Grid at that time.

10. The committee submitted its report to the Commission in July, 2016. However, in the record of proceedings dated 02.07.2017, the Commission clarified that the said report of the committee is not of any assistance to it for deciding the issue of stranded capacity and relinquishment charges and accordingly, the Commission did not accept the report. The relevant portion of the record of proceedings dated 02.07.2017 is extracted hereinbelow: - “At the outset, the Commission clarified that the Committee appointed for determination of stranded capacity and relinquishment charges submitted its report which was posted on the website of the Commission. The Commission further clarified that the report is not of any assistance to the Commission to decide the issues of stranded capacity and relinquishment charges and accordingly, the Commission has not accepted the report. The Commission observed that the issues of stranded capacity and relinquishment charges would be decided after hearing all concerned parties.”

11. It is, therefore, manifest that the Commission discarded the report of the committee altogether and has proceeded to adjudicate the issues of stranded capacity and the relinquishment charges after hearing all the concerned parties.

12. Ultimately, the petition no.92/MP/2015 was disposed of by the Commission vide order dated 08.03.2019 which has been assailed in these appeals.

13. When these appeals came up for hearing before this Tribunal on 08.10.2020, an interim order was passed restraining the respondent

CTUIL from raising any invoices for relinquishment charges in terms of the impugned order of the Commission till the pendency of the appeals before this Tribunal. However, CTUIL was permitted to raise invoices upon the entities undergoing insolvency proceedings. The said interim order came to be modified on 28.03.2022 specifically in appeal no.292 of 2019 permitting CTUIL to raise invoices to the companies undergoing proceedings under Sections 241 and 242 of the Companies Act, 2013, but at the same time directed CTUIL not to take any precipitative action in pursuance to those invoices.

14. CTUIL preferred applications in the months of July, 2024 seeking vacation of interim order dated 08.10.2020.

15. When these applications came up for hearing before the bench of this Tribunal comprising of the then Chairperson Mr. Justice Ramesh Ranganathan, and Ms. Seema Gupta (Technical Member), applications were filed by the appellants seeking recusal of Ms. Seema Gupta on the ground that in her capacity as officer of CTUIL, she represented CTUIL before the Commission and also was member of the committee appointed by the Commission during the proceedings of the petition. These applications were allowed vide order dated 04.02.2025 and thereafter the batch of appeals was taken up for hearing by special bench comprising of the then Hon’ble Chairperson Mr. Justice Ramesh Ranganathan, and Mr. Sandesh Kumar Sharma (Ld. Technical Member). However, the hearing on the applications for vacation of stay could not be completed before Mr. Sandesh Kumar Sharma, Ld. Technical Member, demitted office upon his superannuation on 15.09.2025.

16. Post this, the matter was listed before the Bench comprising of the then Hon’ble Chairperson Mr. Justice Ramesh Ranganathan and myself wherein, I declared my involvement in the Expert Committee constituted by CERC. The appellants had sought my recusal but before matter could be heard, the then Hon’ble Chairperson demitted the office.

17. It is, in these circumstances, that the batch of appeals was transferred from Court-1 to Court-2 of this Tribunal to be heard by the bench comprising of myself and Hon’ble Shri Virender Bhat (Judicial Member). Before this bench also, the appellants have sought my recusal on the ground that I, as a member of the committee constituted by the Commission during the proceedings of the petition, had expressed my views which are now being contested between the parties in these appeals.

18. We have heard Mr. Parag P. Tripathi, learned senior counsel as well as Mr. Amit Kapur, learned counsel appearing for the appellants. We have also heard Mr. M. G. Ramachandran, learned senior counsel along with Ms. Ranjitha Ramachandran, learned counsel appearing on behalf of the Respondent CTUIL, Mr. S. Vallinayagam, learned counsel for the Tamil Nadu Discoms and Mr. Rithvik Mathur, learned counsel for the Kerala Discoms. We have also perused the written notes/ submissions filed by the learned counsels.

Submissions of the Parties:

19. Mr. Parag P. Tripathi, learned senior counsel appearing on behalf of the appellants vociferously argued that there is a perception of bias in the minds of the appellants on account of the fact that I have participated

in the deliberations as a member of the committee constituted by the Commission vis-à-vis the issue of applicability of Regulation 18 and determination of stranded capacity in the meshed transmission network. It is submitted that the perception of bias in the minds of the appellants becomes more accentuated on account of the fact that views expressed by me in the committee report have material bearing on the various grounds/questions of law raised by the appellants in this batch of appeals. It is argued that even though the report of the committee has been rejected by the Commission, yet, the Commission has applied power/load flow study as a methodology for determination of stranded transmission capacity which is in consonance with my views in the committee report. It is also pointed out that the Commission, in the impugned order, has rejected the contention of the generators that compensation for relinquishment has to be decided on the basis of principles envisaged in Sections 73 and 74 of Indian Contract Act, 1872 i.e. on the basis of demonstration of actual loss and also the contentions that in case LTA has been granted without augmentation no compensation is payable as there will be no stranded capacity created on account of relinquishment, which is specifically in line with my views as recorded in the expert committee report. In this regard, the learned senior counsel also referred to a chart providing my views as a member of the expert committee which has been adopted by the Commission in the impugned order.

20. According to the learned senior counsel, in case this bench proceeds to hear these appeals on merits it would lead to peculiar situation where I would be called upon to judge my own views and I may have to either concur with those views or disagree with the same. It is submitted that during the discussions of the committee, I have stated that the determination of stranded transmission capacity and consequent

compensation by use of well-established engineering tools like load flow analysis is more likely to withstand judicial scrutiny and therefore, as a natural consequence, the appellants apprehend that I would be constrained to follow my own views. It is argued that as a judicial practice, wherever a person in his earlier official capacity, has either represented a person or entity before a court of law on a particular legal issue or has rendered any opinion on a particular case, should the said person be elevated as a judge he must recuse himself from the case which he has represented before a court of law or the issue before him as a judge is directly related to an opinion which he has earlier rendered. The learned senior counsel would further argue that not only have I personal knowledge of the issues involved in the present matter but my views are challenged by way of grounds/questions of law raised by the appellants in these appeals, and therefore, overall interest of justice demand that I ought not to hear these appeals. In this context, reliance is placed upon the judgments of the Hon’ble Supreme Court in Ranjit Thakur v. Union of India and Ors (1987) 4 SCC 611, P.D. Dinakaran v. Judges Inquiry Committee and Ors (2011) 8 SCC 380, State of West Bengal & Ors. v. Shivananda Pathak & Ors. (1998) 5 SCC 513, and Locabail (UK) Ltd. v. Bayfield Properties Ltd (1999) APPELLANT L.R. 11/17.

21. Reference is also made by the learned senior counsel to the order dated 25.02.2022 passed by the Hon’ble Supreme Court in Civil Appeal No.7467-7468 of 2021 titled Sravanti Energy Private Ltd v. GAIL whereby the Apex Court expressly stayed all the proceedings before the P&NG bench in this Tribunal related to GAIL India Ltd on the ground that the Technical Member (P&NG) on the bench had served as an officer in GAIL India Ltd.

22. It is argued that since a person, who has given an expert opinion on the subject matter of dispute, is ineligible for appointment as an arbitrator, my presence on the bench hearing these appeals may prejudice rights and interests of the appellants who have challenged the impugned order of the Commission on the grounds/issues on which I have already expressed my opinion during the deliberations of the committee, and therefore, I must recuse from hearing these appeals.

23. It has been contended that, unlike the views of Judicial Members on questions of law, the opinions expressed by Technical Members, being founded on engineering, economic and commercial principles, are not expected to change.

24. The plea of recusal is strongly contested on behalf of the respondent CTUIL. It was submitted by the learned senior counsel for CTUIL that I had been appointed as a member of the committee as a representative of Northern Regional Power Committee which is a statutory body recognized under the Electricity Act, 2003, and not as a representative of any of the parties involved in the case. The committee report was only intended to be an input material for the Commission; not intended to be a final decision on the subject matter deliberated upon by the committee. It is pointed out that my participation in the committee deliberations was only in official capacity. It is further submitted that the contention on behalf of the appellants that the Commission proceeded on the committee report or any of the views expressed therein is not correct and is contrary to the record of proceedings dated 02.05.2017. It is submitted that the Commission has passed the impugned order after inviting comments/views from all stakeholders including power generators and upon considering those views/comments the Commission has, upon

independent analysis of the objections of the stakeholders, arrived at an independent finding dehors the report of the committee. However, in the present proceedings, the parties would address the issues through their counsels which would be adjudicated upon by the bench, being the bench of a quasi-judicial tribunal, with open mind and upon appreciating the rival contentions of the parties. Therefore, there is no reason or occasion for any of the appellants to have any apprehension that such process would not accord due consideration to the issues raised by them in these appeals.

25. It is further argued that a Technical Member is being appointed to this Tribunal on the basis of his qualifications, experience and expertise in the electricity matters and there cannot be any assumption that he ought not to have participated in the meeting in a statutory or administrative body in his official capacity in the past. It is, thus, submitted that there is no basis for the plea that the Technical Member cannot be in a position to appreciate the submissions of the parties by virtue of having participated in the deliberations of the committee despite the fact that the hearing would take place before a bench which also comprises a Judicial Member apart from the Technical Member.

26. Learned senior counsel would further submit that the test of likelihood of bias is required on the basis of reasonable apprehension of a reasonable man. There should not be a mere apprehension based on surmises but there must be a real danger of bias. In support of his submissions, the learned senior counsel relied upon Lalit Kumar Modi v. Board of Control for Cricket in India (2011) 10 SCC 106, Tata Cellular v. Union of India (1994) 6 SCC 651 and Indore Development Authority (Recusal Matter) v. Manohar Lal and Ors. (2020) 6 SCC 304. He would

also distinguish the judgments relied upon by the learned senior counsel for the appellants saying that those are not applicable to the facts of the instant case.

27. The learned senior counsel for the CTUIL invoked the “Doctrine of Necessity” and submitted that even in case of bias or interest in the matter, a judge may be required to adjudicate upon a dispute if there is no other authority or judge to decide the issue. He would submit that the law does not contemplate a vacuum and if choice is between allowing a biased person to act or stifle the action altogether, the choice must be in favour of former, otherwise, machinery of justice or administration would break. According to the learned senior counsel for CTUIL, in the present case, if the Doctrine is not applied, the Tribunal cannot hear the matter at all and the parties would have to wait at least till October, 2027 and thereafter also it would be anybody’s guess as to whether the new Technical Member may or may not have participated in the proceedings of this case or taken a view in any forum.

28. Rebutting the invocation of Doctrine of Necessity, learned senior counsel for the appellant submitted that same can be applied where there exists a case of imminent urgency or refusal to decide would result in failure of justice. It is submitted that mere inconvenience of reassigning or delay does not justify “necessity” in order to invoke the said doctrine. According to learned senior counsel, CTUIL has failed to meet the essential requirement of the Doctrine and there are no compelling circumstances for its application for the reason that CTUIL has not sought vacation of the order dated 08.10.2020 for about six years; non-payment of relinquishment charges has not caused any irreparable injury in terms

of under recovery of transmission charges by CTUIL or the transmission licensees and no irreparable injury would be caused to the discoms in case the hearing of the appeals is postponed.

29. Additionally, it is argued by the learned senior counsel for the appellants that an alternate remedy is available to CTUIL in the form of writ jurisdiction before the Delhi High Court and therefore, where an alternate remedy is available to a litigant, Doctrine of Necessity cannot be invoked.

30. Ld. Counsels for the Tamil Nadu and Kerala Discoms submitted that they adopt the submissions made on behalf of the CTUIL.

Our Analysis:

31. The issue before us is whether the Technical Member on the bench i.e. myself is debarred from hearing these appeals in view of the fact that I had participated in the deliberations of the committee constituted by the Commission during the proceedings of the petition no.92/MP/2015 to, inter alia, suggest the methodology for assessment/determination of stranded capacity and relinquishment charges in case of relinquishment of LTA right by an entity.

32. In the peculiar facts of the instant case, my answer to this issue would be emphatic “No”.

33. Mere fact that in my capacity as an officer of NRPC, I had been picked up as member of the committee, and had participated in the deliberations of the committee and had expressed my views on the issues being discussed in the committee, do not disentitle me from hearing the applications for vacation of stay in these appeals as well as the appeals themselves, even though, there might be some similarity between the grounds/issues raised in these appeals by the appellants and the points of deliberations in the committee. There are more than one reasons on the basis of which I have come to this conclusion.

34. At the outset, I would like to state that as a Technical Member, I have always endeavoured to remain fully conscious of the high standards of impartiality, independence and ethics expected of every adjudicatory authority. Consistent with these standards, I had voluntarily disclosed my association with the said Committee during hearing on 27.11.2025, leaving it entirely open to the parties to raise such objections, if any, as they considered appropriate. Equally significant is the fact that, in another unrelated Appeal No. 298 of 2025, I recused myself on 30.10.2025 from hearing the matter upon being satisfied that the facts of that case warranted such recusal. This demonstrates that the present decision not to recuse does not stem from any reluctance to do so where the circumstances genuinely so require, but from a considered view that the facts of the present case do not give rise to any real likelihood or reasonable apprehension of bias. The disclosure made and the objection raised have therefore received anxious consideration, but for the reasons recorded hereinbelow, no sustainable ground for recusal is found to exist.

35. It must be borne in mind that I had expressed the said opinion in committee meetings held nearly a decade ago. We must distinguish between a previously expressed opinion and a settled belief. Opinions are ordinarily provisional intellectual conclusions, capable of revision in the light of subsequent experience, reflection, evidence and reasoned arguments. Beliefs, in contrast, represent deeper and relatively enduring commitments that form part of an individual’s underlying cognitive framework.

36. This distinction finds support in the seminal work of William Stephenson1, “Definition of Opinion, Attitude and Belief (1965)”, where he explains that opinions are numerous and situation-specific, whereas beliefs are few, deeply rooted and comparatively stable. Indeed, he observes that “opinions are as numerous as the waves of the sea…. beliefs are few indeed.” His work lends considerable support to the proposition that repeated expression of substantially the same opinion over a prolonged period may disclose an underlying belief, whereas a solitary opinion, particularly one expressed long ago and in a different context, is more appropriately regarded as a provisional intellectual view rather than an enduring commitment.

37. A mere expression of opinion in the past cannot, by itself, give rise to a reasonable apprehension of present bias in the mind of a reasonable person. Such an inference does not arise merely because an opinion was expressed earlier. It arises only where the material discloses an 1 William Stephenson, “Definition of Opinion, Attitude and Belief,” The Psychological Record, Vol. 15, 1965, pp. 281-288

entrenched belief or fixed commitment. In such a case, it may reasonably be apprehended that the decision-maker is unlikely to approach the issue with an open and impartial mind.

38. There can be little dispute that it is entrenched beliefs, rather than isolated opinions, that have the potential to generate cognitive bias. By contrast beliefs tend to resist contradictory information. Modern cognitive psychology recognises this phenomenon in the form of confirmation bias, which is the tendency to seek, interpret and recall information in ways that reinforce pre-existing beliefs while giving inadequate consideration to evidence pointing in the opposite direction2. It is for this reason that the existence of an entrenched belief, rather than the mere expression of an opinion at some earlier point in time, is of far greater relevance when assessing whether there exists a reasonable apprehension of bias.

39. The next important consideration is the very purpose for which a Technical Member is appointed to this Tribunal. The Section 113 of the Electricity Act, 2003 which is relevant to the discussion is extracted blow:

“Section 113. (Qualification for appointment of Chairperson and Members of Appellate Tribunal): --- (1) A person shall not be qualified for appointment as the Chairperson of the Appellate Tribunal or a Member of the Appellate Tribunal unless he- (a) in the case of the Chairperson of the Appellate Tribunal, is, or has been, a judge of the Supreme Court or the Chief Justice of a High Court; and (b) in the case of a Member of the Appellate Tribunal,-

(i) is, or has been, or is qualified to be, a Judge of a High Court; or

2 Tom Stafford, “Biases in decision making: Anti-bias strategies,” Tribunals, Winter 2017 (Courts and Tribunals Judiciary, UK).

(ii) is, or has been, a Secretary for at least one year in the Ministry or Department of the Central Government dealing with economic affairs or matters or infrastructure; or

(iii) is, or has been, a person of ability and standing, having adequate knowledge or experience in dealing with the matters relating to electricity generation, transmission and distribution and regulation or economics, commerce, law or management.

……….”

(Emphasis Supplied)

40. The legislative intent is to ensure that the Tribunal benefits from the specialised knowledge, experience and expertise that Technical Member brings to the adjudicatory process. A person possessing such expertise cannot reasonably be expected to have remained silent throughout his or her professional career. On the contrary, active participation in technical committees, professional deliberations, policy discussions and academic or institutional forums would inevitably require the expression of views on issues within the Technical Member’s domain of expertise.

41. If every opinion expressed in the course of such professional engagements were to be treated as giving rise to bias, Technical Members would be disqualified from hearing a substantial number of matters falling within their very field of expertise. Such an approach would defeat the very purpose of constituting specialised Tribunals and would render the appointment of domain experts largely self-defeating. Surely, that could never have been the legislative intent.

42. When I was included in the committee constituted by CERC, I was serving as Superintending Engineer in the secretariat of the Northern Regional Power Committee. The officers of the RPC Secretariat are employees of, and are posted by, the Central Electricity Authority, a statutory body under the Electricity Act, 2003.It is also to be noted that neither was the committee a judicial forum nor did my views/opinions tantamount to a judicial opinion. These were not binding on any party including Commission and the Commission in its wisdom decided to discard the report of the committee. Now, being a Technical Member on the bench of this Tribunal hearing these appeals, I cannot and ought not to take any decision merely on the basis of my own knowledge and perceptions. My decision has to be based upon the pleadings of the parties and the arguments to be advanced by their learned counsels. It would be a judicial order of which I would be a signatory apart from the Judicial Member on the bench. All decisions/orders to be passed by the bench would be based upon the collective deliberations between the members i.e. the Technical Member as well as the Judicial Member and would reflect the collective opinion of the members on the issues under consideration. Further, it is undeniable that the issues involved in these appeals are not of pure technical nature. The issues have more legal ramifications for the reason that these involve the interpretation of Regulation 18 of 2009 Connectivity Regulations. There are well- established principles for interpretation of statutes and regulations, which, in no case can be given a go by. Therefore, the views/opinions expressed by me during the deliberations of the committee have no significance at all in hearing and deciding the issues involved in these appeals.

43. I am conscious of the legal position founded upon the principles of natural justice that where there is a real likelihood of bias, the judge must

recuse. In Ranjit Thakur v. Union of India & Ors., the Hon’ble Supreme Court has observed on this aspect as under: - “15. The second limb of the contention is as to the effect of the alleged bias on the part of Respondent 4. The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely and is whether Respondent 4 was likely to be disposed to decide the matter only in a particular way.

16. It is the essence of a judgment that it is made after due observance of the judicial process; that the court or tribunal passing it observes, at least the minimal requirements of natural justice; is composed of impartial persons acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial "coram non-judice". (See Vassiliades v. Vassiliades [AIR 1945 PC 38: 221 IC 603].)

17. As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the Judge is not to look at his own mind and ask himself, however, honestly, "Am I biased?"; but to look at the mind of the party before him.

18. Lord Esher in Allinson v. General Council of Medical Education and Registration [(1894) 1 QB 750, 758-59] said:

‘The question is not whether in fact he was or was not biased. The court cannot inquire into that.... In the administration of justice, whether by a recognised legal court or by persons who, although not a legal public court, are acting in a similar capacity, public policy requires that, in order that there should be no doubt about the purity of the administration any person who is to take part in it should not be in such a position that he might be suspected of being biased.’

19. In Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon [(1969) 1 QB 577, 599] Lord Denning M.R. observed: ‘… in consideration whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or

whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit.’

20. Frankfurter, J. in Public Utilities Commission of the District of Columbia v. Pollak [343 US 451, 466-67: 96 L Ed 1068, 1079] said:

‘The judicial process demands that a Judge move within the framework of relevant legal rules and the covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that on the whole Judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self-discipline and that fortunate alchemy by which men are loyal to the obligation with which they are entrusted. But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgement or may not unfairly lead others to believe they are operating, Judges recuse themselves. They do not sit in judgment.”

44. These observations have been cited with approval by the Apex Court in the subsequent judgment in the case of P.D. Dinakaran (supra) wherein it has been held as under: -

“67. The real likelihood test was again applied in Ranjit Thakur v. Union of India [(1987) 4 SCC 611: 1988 SCC (L&S) 1: (1987) 5 ATC 113.... … … … …

71. The principles which emerge from the aforesaid decisions are that no man can be a judge in his own cause and

justice should not only be done, but manifestly be seen to be done. Scales should not only be held even but they must not be seen to be inclined. A person having interest in the subject-matter of cause is precluded from acting as a Judge. To disqualify a person from adjudicating on the ground of interest in the subject- matter of lis, the test of real likelihood of the bias is to be applied. In other words, one has to enquire as to whether there is real danger of bias on the part of the person against whom such apprehension is expressed in the sense that he might favour or disfavour a party. In each case, the court has to consider whether a fair-minded and informed person, having considered all the facts would reasonably apprehend that the Judge would not act impartially. To put it differently, the test would be whether a reasonably intelligent man fully apprised of all the facts would have a serious apprehension of bias. In cases of non-pecuniary bias, the “real likelihood” test has been preferred over the “reasonable suspicion” test and the courts have consistently held that in deciding the question of bias one has to take into consideration human probabilities and ordinary course of human conduct. We may add that real likelihood of bias should appear not only from the materials ascertained by the complaining party, but also from such other facts which it could have readily ascertained and easily verified by making reasonable inquiries.

72. In Halsbury's Laws of England [Vol. 29(2), 4th Edn., Reissue 2002, para 560, p. 379], the test of disqualification due to apparent bias has been elucidated in the following words:

"560. Test of disqualification by apparent bias. - The test applicable in all cases of apparent bias, whether concerned with Justices, members of inferior tribunals, jurors or with arbitrators, is whether, having regard to the relevant circumstances, there is a real possibility of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard with favour, or disfavour, the case of a party to the issue under consideration by him. In considering this question all the circumstances which have a bearing on the suggestion that the Judge or Justice is biased must be considered. The question is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. Cases may occur where all the Justices may be affected by an appearance of bias, as, for instance, where a fellow Justice or the Justices' clerk is charged with an offence;

where this occurs, it has been recommended that Justices from another petty-sessional division should deal with the case, or, if the offence is indictable, that it should be committed for trial by a jury.

It is because the court in the majority of cases does not inquire whether actual bias exists that the maxim that justice must not only be done but be seen to be done is applied, and the court gives effect to the maxim by examining all the material available and concluding whether there is a real possibility of bias...”

45. Similarly, the Hon’ble Supreme Court again in State of West Bengal & Ors. v. Shivanand Pathak & Ors. has observed as under: - “33. Bias, as pointed out earlier, is a condition of mind and, therefore, it may not always be possible to furnish actual proof of bias. But the courts, for this reason, cannot be said to be in a crippled state. There are many ways to discover bias; for example, by evaluating the facts and circumstances of the case or applying the tests of "real likelihood of bias" or "reasonable suspicion of bias". de Smith in Judicial Review of Administrative Action, 1980 Edn., pp. 262, 264, has explained that "reasonable suspicion" test looks mainly to outward appearances while "real likelihood" test focuses on the court's own evaluation of the probabilities.”

46. In Locabail case (supra) it has been held as under: - “89. We have found this a difficult and anxious application to resolve. There is no suggestion of actual bias on the part of the recorder. Nor, quite rightly, is any imputation made as to his good faith. His voluntary disclosure of the matters already referred to show that he was conscious of his judicial duty. The views he expressed in the articles relied on are no doubt shared by other experienced commentators. We have, however, to ask, taking a broad common sense approach, whether a person holding the pronounced pro-claimant anti-insurer views expressed by the recorder in the articles might not unconsciously have leant in favour of the claimant and against the defendant in resolving the factual issues between them. Not without misgiving, we conclude that

there was on the facts here a real danger of such a result. We do not think a lay observer with knowledge of the facts could have excluded that possibility, and nor can we. We accordingly grant permission to appeal on this ground, allow the defendant's appeal and order a re-trial. We should not be thought to hold any view at all on the likely or proper outcome of any re-trial.”

47. The principles of law and natural justice evolved in these judgments are salutary and undisputable. However, it is to be noted that these judgments were rendered in altogether different fact situations than the fact situation appearing in the instant case. For example, in Locabail case, the judge in question had written extensively on the subject expressing vocal pro-claimant and anti-insurer views which led the court to observe that it is inappropriate for a judge to use intemperate language about the subject which he has adjudicated or will have to adjudicate. Accordingly, the court came to conclusion that there was a real danger of bias in the mind of the defendants3. That is not the case herein. No such articles have been written by me on the issues raised by the appellants in these appeals. Nor do my views/opinions expressed during the deliberations of the committee demonstrate any tone of trenchancy or intemperate language. To the contrary, the Hon’ble Supreme Court has specifically held in J.Y. Kondala Rao v. A.P. State Road Transport Corporation, AIR 1961 SC 82 that being member of a sub-committee does not establish any bias nor does a decision taken by the sub-committee constitute any predetermination.

3 In this case, the repeated expression of opinion, that too in intemperate language, actually hints at entrenched belief, and which as we have discussed in our proposition in earlier paragraphs had potential to give rise to bias.

48. The case, facts of which are almost identical to the facts of the instant case, is Indore Development Authority (Recusal Matter) v. Manohar Lal (supra). In that case, the recusal of one of the Hon’ble judges from a Five-Judge Bench was sought on the ground that the Hon’ble judge, while sitting in a Division Bench had expressed a strong opinion in favour of one of the parties on the issue which was referred to the Constitution Bench. After referring to all the previous judgments of the court as well as the judgment of the foreign courts on the aspect of recusal, the Hon’ble judge, whose recusal has been sought, observed as under: - “46. Having surveyed the precedents cited at the Bar, and having considered the arguments, it is my considered view that a Judge rendering a judgment on a question of law would not be a bar to her or his participation if in a larger Bench if that view is referred for reconsideration. The previous judgment cannot constitute bias, or a predisposition-nor can it seem to be such, so as to raise a reasonable apprehension of bias. Nor can expressions through a judgment (based on the outcome of arguments in an adversarial process) be a "subject-matter" bias on the merits of a norm or legal principle or provisions. The previous decisions and practice of this Court have clearly shown that there can be and is no bar as the respondents, Senior Counsel argue. Accepting the plea of recusal would sound a death knell to the independent system of justice delivery where litigants would dictate participation of Judges of their liking in particular cases or causes.

47. Recusal is not to be forced by any litigant to choose a Bench. It is for the Judge to decide to recuse. The embarrassment of hearing the lengthy arguments for recusal should not be a compelling reason to recuse. The law laid down in various decisions has compelled me not to recuse from the case and to perform the duty irrespective of the consequences, as nothing should come in the way of dispensation of justice or discharge of duty as a Judge and judicial decision-making. There is no room for prejudice or bias. Justice has to be pure, untainted, uninfluenced by any factor, and even decision for recusal cannot

be influenced by outside forces. However, if I recuse, it will be a dereliction of duty, injustice to the system, and to other Judges who are or to adorn the Bench(es) in the future. I have taken an informed decision after considering the nitty-gritty of the points at issue, and very importantly, my conscience. In my opinion, I would be committing a grave blunder by recusal in the circumstances, on the grounds prayed for, and posterity will not forgive me down the line for setting a bad precedent. It is only for the interest of the judiciary (which is supreme) and the system (which is nulli secundus) that has compelled me not to recuse.” (Emphasis supplied)

49. Even though the judgment in the said case was written by the Hon’ble judge whose recusal had been sought, yet, the other Hon’ble judges on the Constitution Bench have concurred with the same. Therefore, it is now well settled that where a judge has rendered a judgment on a question of law while sitting in a smaller combination like a Division Bench, that would not be a bar to his or her participation in a larger bench to which his/her view is referred for reconsideration. The previous judgment of that judge cannot constitute bias or predisposition and cannot be taken to be such as to raise a reasonable apprehension of bias.

50. My position in this case is much stronger. I was not a judge or a member of this Tribunal when I had participated in the deliberations of the expert committee constituted by the Commission in which I had expressed my views. Therefore, those views, which had been expressed by me in the committee meetings would not constitute bias or predisposition on my part and ought not to raise any reasonable apprehension of bias against me.

51. It is also important to note that the report of the committee was totally discarded by the Commission and Commission has passed the

impugned order dehors that report upon consideration of the contentions/submissions advanced on behalf of the stakeholders. Mere fact that the conclusion reached by the Commission on certain issues is similar to the opinion rendered by me in meetings of the expert committee does not suggest that the impugned order of the Commission is based upon the report of the said committee or the views expressed by the members of the committee during its deliberations.

52. An argument has been advanced that, while Judicial Members primarily express views on questions of law, which are inherently capable of evolution through judicial precedent and statutory interpretation; the opinions expressed by Technical Members are founded on engineering, economic and commercial principles and are therefore not expected to change. I am unable to accept this proposition.

53. The distinction sought to be drawn proceeds on an erroneous assumption that technical or techno-commercial opinions are immutable. Science, technology, engineering, economics and commerce are all dynamic disciplines. New knowledge, evolving industry practices, technological advancements, changing commercial realities and accumulated professional experience constantly reshape accepted understanding. The application of technical principles to complex factual situations frequently admits of more than one reasonable conclusion, as evidenced by the diversity of expert opinion encountered in technical and regulatory matters.

54. Further, the role of a Technical Member of a Tribunal cannot be viewed in isolation. While each Member brings specialised expertise to the Bench, adjudication is a collaborative exercise. Technical Members do not confine themselves exclusively to technical issues, nor do Judicial Members refrain from engaging with techno-commercial questions. Judgments frequently involve substantial consideration of both legal and technical issues, and are the product of collective deliberation and mutual exchange of views. Indeed, it is not uncommon for a Technical Member to author a judgment dealing extensively with legal issues, just as a Judicial Member may address intricate technical questions, each benefiting from the expertise and inputs of the other.

55. Significantly, the Committee itself comprised at least seven members with technical expertise out of its nine members, yet unanimity could not be achieved. This itself demonstrates that even among experts, honest differences of opinion may exist on techno-commercial issues. It would therefore be wholly incorrect to presume that a technical opinion once expressed necessarily reflects an immutable or enduring commitment incapable of change.

56. CTU has relied upon the doctrine of necessity to submit that, even if a reasonable apprehension of bias were assumed, this bench must nevertheless proceed to hear the matter; otherwise, the statutory decision-making process would be stifled and the Tribunal would be rendered incapable of effectively discharging the jurisdiction conferred upon it by the statute. Election Commission of India v. Dr. Subramaniam Swamy, (1996) 4 SCC 104, is a landmark decision of the Hon’ble Supreme Court on the interplay between the rule against bias and the

doctrine of necessity. The dispute arose from proceedings under Article 192 of the Constitution concerning the alleged disqualification of the then Chief Minister of Tamil Nadu, Ms J. Jayalalithaa. She objected to the participation of the then Chief Election Commissioner, Shri T. N. Seshan, on the ground of alleged bias arising from his relationship with the complainant, Dr. Subramanian Swamy. During the pendency of the proceedings, the Election Commission became a multi-member body with the appointment of two additional Election Commissioners, thereby altering the constitutional framework within which the issue fell to be decided.

57. The Hon’ble Supreme Court explained that the doctrine of necessity is invoked where, in the absence of the participation of the allegedly disqualified authority, the statutory decision-making process would otherwise be rendered incapable of functioning. The Court observed that where the choice lies between permitting the allegedly biased authority to act and stifling the decision-making process altogether, the law favours the former in order to prevent a failure of justice. Applying this principle to the facts before it, the Court observed:- “If the choice is between allowing biased person to act or to stifle the action altogether, the choice must fall in favour of the former as it is the only way to promote decision-making. In the present case also if the two Election Commissioners are able to reach a unanimous decision, there is no need for the Chief. Election Commissioner to participate, if not the doctrine of necessity may have to be he invoked.”

58. The Appellant’s have relied on the judgement of Hon’ble Supreme Court dated 25.02.2022 passed in Civil Appeal No 7467-7468 of 2021 titled “Sravanthi Energy Pvt Ltd vs GAIL” to contend that Supreme Court did not apply the doctrine of necessity while staying proceedings before this Tribunal. This stay was ordered because the then Ld. Technical

Member (PNG), APTEL was previously employed by GAIL (India) Limited and was hearing cases involving their former employer. However, the facts of this case are not applicable in the instant case; I was not employed at any point of time by any of the parties involved in the present dispute. Therefore, even if some Appellants have perception that I may be biased in any way, in addition to assuring that such perception is unfounded, I find this is fit case for invoking doctrine of necessity.

59. In the light of the above discussion, I am of the considered opinion that there is no room for any perception of prejudice or bias against me. The law laid down by the Apex Court in above noted judgments compels me not to recuse from the case and to perform my duty irrespective of the consequences. Hence, I have taken a conscious decision not to recuse and to continue on the bench to hear the applications for vacation of stay preferred by the respondent CTUIL as well as the appeals.

Ajay Talegaonkar Technical Member (Electricity)

PER HON’BLE MR. VIRENDER BHAT, JUDICIAL MEMBER

60. I had the occasion of going through the draft judgment penned by my learned colleague on the bench Shri Ajay Talegaonkar (learned Technical Member) and I fully concur with the same.

61. I am aware that a plea of recusal of a judge from hearing a case is always directed to the concerned judge and not to the bench as a whole. Accordingly, such plea raised in these appeals has been dealt with by the concerned member on the bench. However, I find it my duty to express my views also in the context of recusal of a judge from hearing a case.

62. Be that as it may, recusal from hearing a particular case should be left to the sole decision of the concerned Judge/Tribunal Member which he/she shall take as per his/her conscience and upon keeping in mind the oath of office by which he/she is bound. A litigant has no right and cannot be permitted to force recusal upon a judge from hearing a case. If the requests for recusal like the present one made in these appeals by the appellants, are acceded to merely on the asking of a litigant it would tantamount to interference in the judicial system by an unscrupulous litigant and would set a very bad precedent. It would tantamount to permitting the unscrupulous litigant to have a judge of his choice who can share his views, to hear his case. I am afraid that no such right can be given to any litigant in the guise of recusal which he/she seeks on flimsy ground just in order to have his case heard by a judge of his choice.

63. In the judgement of the Hon’ble Supreme Court in Supreme Court Advocates-on-Record Association (Recusal Matter) Vs. Union of India (2016) 5 SCC 808, two principles for recusal of a judge from hearing a case have been culled out. The first principal is that a Judge should be impartial. The second principal is Latin maxim nemo judex in re sua i.e. no man shall be a Judge in his own cause. A Judge could be dis-qualified from hearing a case only if he has a direct pecuniary interest or consanguinity, affinity,

friendship or enmity with a party or because he was or had been a party’s advocate.

64. None of these two principles/tests have been invoked by the appellants in this case. There was not even a whisper in the entire arguments advanced by the appellant’s counsels that Shri Ajay Talegaonkar, the learned Technical Member has any direct pecuniary interest or any other interest in the subject matter of the appeal.

65. In this regard, I also find it profitable to quote the observations of the Hon’ble Supreme Court in Civil Writ Petition No. 1045 of 2018 order dated 7th May, 2019 in Harsh Mander Vs. Union of India & Anr. :- “We would like to say that a litigant should not be permitted and allowed to question a judge on perceived bias especially after hearing has commenced and orders on different dates have been passed. Normally, this should be left to the Judge himself who is bound by the oath of office to administer justice to all persons alike without fear, favour and prejudice. The litigant, without any firm basis, cannot be permitted to raise such objection on the basis of the court hearing. To do so, would encourage parties to ask for change of the Judge in the hope that someone else is more likely to agree with them and not take a contrary view. Choosing judges in such a manner during the course of hearing would directly interfere with the administration of justice.”

66. Way back in 1998, the Hon’ble Supreme Court had occasion to deal with the aspect under consideration in State of West Bengal Vs. Shivananda Pathak (1998) 5 SCC 513 and it was held:- “25. Bias may be defined as a pre-conceived opinion or a pre- disposition or pre-determination to decide a case or an issue in a particular manner, so much so that such pre- disposition does

not leave the mind open to conviction. It is, in fact, a condition of mind, which sways judgments and renders the Judge unable to exercise impartially in a particular case.

26. Bias has many forms. It may be pecuniary bias, personal bias, bias as to subject matter in dispute, or policy bias etc. In the instant case, we are not concerned with any of these forms of bias. We have to deal, as we shall presently see, a new form of bias, namely, bias on account of judicial obstinacy.

27. Judges, unfortunately, are not infallible. As human beings, they can commit mistakes even in the best of their judgements reflective of their hard labour, impartial thinking and objective assessment of the problem put before them. In the matter of interpretation of statutory provisions of while assessing the evidence in a particular case or deciding questions of law or facts, mistakes may be committed bona fide which are corrected at the appellate stage. This explains the philosophy behind the hierarchy of courts. Such a mistake can be committed even by a Judge of the High Court which are corrected in the Letters Patent Appeal, if available.

28. If a judgment is over-ruled by the higher court, the judicial discipline required that the Judge whose judgment is over-ruled must submit to that judgment. He cannot, in the same proceedings or in collateral proceedings between the same parties, re-write the over-ruled judgment. Even if it was a decision on a pure question of law which came to be over-ruled, it cannot be reiterated in the same proceedings at the subsequent stage by reason of the fact that the judgment of the higher court which has over-ruled that judgment, not only binds the parties to the proceedings but also the Judge who had earlier rendered that decision. That Judge may have his occasion to reiterate his dogmatic views on a particular question of common law or constitutional law in some other case but not in the same case. If it is done, it would be exhibitive of his bias in his own favour to satisfy his egoistic judicial obstinacy.

29. As pointed out earlier, an essential requirement of judicial adjudication is that the Judge is impartial and neutral and is in a position to apply his mind objectively to the facts of the case put up before him. If he is pre- disposed or suffers from prejudices or has a biased mind, he disqualifies himself from acting as a

Judge. But frank, J.. of the United States in In re Linahan, 138 F. 2nd 650 says:-

"If, however, 'bias' and 'particularly' be defined to mean the total absence of preconceptions in the mind of the judge, then no one has ever had a fair trial and no one will. The human mind, even, at infancy, is no blank piece of paper. We are born with predispositions....Much harm is done by the myth that, merely by.... taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine."

(See also Griffith and Street, Principles of Administrative Law (1973 Edn.) 155; Judicial Review of Administrative Action by de Smith (1980 Edn.) 272; II Administrative Law Treatise by Davis (1958 Edn.) 130.)

30. These remarks imply a distinction between pre-judging of facts specifically relating to a party, as against pre- conceptions or pre-dispositions about general questions of law, policy or discretion. The implication is that though in the former case, a Judge would disqualify himself, in the latter case, he may not. But this question does not arise here and is left as it is.”

67. Further, the observations of the Hon’ble Supreme Court in Subrata Roy Sahara Case Vs. Union of India, (2014) 8 SCC 470 SCC are also very pertinent in this regard :- “10. We have recorded the above narration, lest we are accused of not correctly depicting the submissions, as they were canvassed before us. In our understanding, the oath of our office, required us to go ahead with the hearing. And not to be overawed by such submissions. In our view, not hearing the matter, would constitute an act in breach of our oath of office, which mandates us to perform the duties of our office, to the best of our ability, without fear or favour, affection or ill will.

11. This is certainly not the first time, when solicitation for recusal has been sought by learned counsel. Such a recorded peremptory prayer, was made by Mr. R.K. Anand, an eminent Senior Advocate, before the High Court of Delhi, seeking the recusal of Mr. Justice Manmohan Sarin from hearing his personal

case. Mr. Justice Manmohan Sarin while declining the request made by Mr. R.K. Anand, observed as under:

"The path of recusal is very often a convenient and a soft option. This is especially so since a Judge really has no vested interest in doing a particular matter. However, the oath of office taken under Article 219 of the Constitution of India enjoins the Judge to duly and faithfully and to the best of his knowledge and judgment, perform the duties of office without fear or favour, affection or ill will while upholding the constitution and the laws. In a case, where unfounded and motivated allegations of bias are sought to be made with a view of forum hunting / Bench preference or brow-beating the Court, then, succumbing to such a pressure would tantamount to not fulfilling the oath of office."

The above determination of the High Court of Delhi was assailed before this Court in R.K. Anand v. High Court of Delhi. The determination of the High Court whereby Mr. Justice Manmohan Sarin declined to withdraw from the hearing of the case came to be upheld, with the following observations: (SCC p. 192, para

“263 ….. The above passage, in our view, correctly sums up what should be the Court's response in the face of a request for recusal made with the intent to intimidate the court or to get better of an `inconvenient' judge or to obfuscate the issues or to cause obstruction and delay the proceedings or in any other way frustrate or obstruct the course of justice.”

68. In Indore Development Authority (Recusal Matter-5 J) vs. Monohar Lal & Ors. 2020 6 SCC 304, recusal of one of the Hon’ble Judges constituting the five Judge Bench was sought. After noticing all the previous judgements of the Courts as well as the judgements of foreign Courts on the aspect of recusal, the Hon’ble Judge whose recusal had been sought observed as under :-

47. Recusal is not to be forced by any litigant to choose a Bench. It is for the Judge to decide to recuse. The embarrassment of hearing the lengthy arguments for recusal

should not be a compelling reason to recuse. The law laid down in various decisions has compelled me not to recuse from the case and to perform the duty irrespective of the consequences, as nothing should come in the way of dispensation of justice or discharge of duty as a Judge and judicial decision-making. There is no room for prejudice or bias. Justice has to be pure, untainted, uninfluenced by any factor, and even decision for recusal cannot be influenced by outside forces. However, if I recuse, it will be a dereliction of duty, injustice to the system, and to other Judges who are or to adorn the Bench(es) in the future. I have taken an informed decision after considering the nitty-gritty of the points at issue, and very importantly, my conscience. In my opinion, I would be committing a grave blunder by recusal in the circumstances, on the grounds prayed for, and posterity will not forgive me down the line for setting a bad precedent. It is only for the interest of the judiciary (which is supreme) and the system (which is nulli secundus) that has compelled me not to recuse.

69. Considering these salutary observations of the Apex Court in the context of recusal of a judge, I am of the opinion that my colleague Shri Ajay Talegaonkar (learned Technical Member) has taken a correct decision to not recuse from hearing these appeals and any decision to the contrary would have demonstrated that he has succumbed to the pressurizing tactics employed by the appellants. Undisputedly, he has no connection at all with any of the parties to these appeals nor is there any allegation of financial bias against him. Therefore, merely because he had expressed certain views during the deliberations of a committee several years ago, when he was a member of NRPC would not constitute an element of bias against him and do not debar him from hearing these appeals.

70. It is not that the judges do not change their views or perceptions about a subject or an issue confronting them in the

cases being heard by them. In this regard, Paragraph nos.15 and 16 of the judgment in Indore Development Authority case is very material and is extracted hereinbelow:- “15. Shri M.C. Setalvad, in his autobiography My Life, Law and Other Things has referred in Chapter 12 the events between 1955 to 1969. He has referred to one of the important decisions of this Court delivered by S.R. Das, J., who was the then Acting Chief Justice. It was Bengal Immunity case. In 1953, a Bench presided over by Sastri, C.J. of which Bhagwati, J. was a member held that State could impose sales tax on goods delivered for consumption in that State, even though the sale was an inter- State sale as held in State of Bombay v. United Motors (India) Ltd. with Bose and S. R. Das, JJ. Bose, J. delivered a dissenting judgment and S.R. Das, J. as a Junior Judge had also expressed a contrary opinion in another decision.

16. The same question arose in Bengal Immunity Co. Ltd. v. State of Bihar, which came up when S.R. Das, J. was acting as the Chief Justice. S.R. Das, J. who held strong views on the matter, had the matter placed before larger Bench of seven Judges, including the two, Bose and Bhagwati, JJ. Who had participated in the earlier decision. Bhagwati, J. who had formed part of the majority in the United Motors case, agreeing with the view of Sastri, C.J. had reversed his former view, giving his reasons in detail and held that earlier decision was erroneous. Following are the extracts from My Life, Law and Other Things by M.C. Setalvad:

"One of the important decisions of the Supreme Court delivered while S.R. Das was the Chief Justice, was Bengal Immunity case. That case had an interesting history. Article 286 of the Constitution (as it then stood) prohibited a State Legislature from imposing sales tax on transactions of inter- State sales and sales in the course of export. The Article was not, however, happily worded. In 1953, a Bench of the Supreme Court presided over by Sastri, C.J. of which Justice Bhagwati was a member, held that a State could

impose sales tax on goods delivered for consumption in that State, even though the sale was an inter-State sale. This decision was contrary to the express provision of the Constitution that Parliament alone could authorise the imposition of a tax on sales in the course of inter-State sales and was based on an Explanation to Article 286(1)(a), which was not applicable. Justice Bose had delivered a dissenting judgment, and S.R. Das as a puisne Judge had also expressed a contrary opinion in another decision.

The same question arose in Bengal Immunity Co. Ltd. v. State of Bihar which came up when S.R. Das was acting as the Chief Justice. Bengal Immunity Co. manufactured medicinal products in Bengal and sold them all over India including Bihar. The Company had no office or agent in Bihar but the Bihar Sales Tax Authorities sought to compel the Company to register as a dealer in Bihar and pay sales tax on the ground that goods delivered in Bihar for consumption in Bihar as a direct result of the sale were liable to sales tax in Bihar even though the sale had taken place in Bengal. The view of the State of Bihar was in accordance with the decision of the Supreme Court in United Motors case but Das, J. who held strong views in the matter, had the matter placed before a larger Bench of seven Judges including two, Bose, J. and Bhagwati, J. who had participated in the earlier decision.

The matter was of vital importance to the States, because under the g view expressed by Sastri, C.J. in United Motors case, one State-the State in which goods had been delivered for consumption as a direct result of the sale- would be entitled to levy sales tax on such transactions, while, under the other view, no State at all would be able to tax the goods, as the transaction of sale would be an inter- State sale. The Centre alone could make a law for levying a sales tax on inter-State sales. There is little doubt that the somewhat strained construction put upon the Explanation to Article 286(1)(a) by Sastri. C.J. and the majority was due to the consideration that the sources of revenue of the States under the Constitution which were already slender should not be diminished by denying to the States the opportunity of levying sales tax altogether in such cases.

Notices were issued to all the States and many of them intervened by their Advocates General. N.C. Chatterjee appeared for the Bengal Immunity Company and Lal Narayanan Sinha, then the Government Advocate of Bihar, appeared for the State of Bihar. I intervened on behalf of the State of West Bengal. Sikri, as the Advocate General, represented the State of East Punjab.

At the outset arose the question whether the Supreme Court could overrule its previous decision if it was satisfied that it was erroneous. That was the first occasion on which the Court was called upon to deal with this important question.

The Court naturally considered the practice followed in other final courts of appeal. The Privy Council had held that though it was not absolutely bound to follow its earlier decisions it would seldom differ from them in constitutional matters as they would have been acted upon both by Governments and subjects. The United States Supreme Court had on a number of occasions expressly overruled its previous decisions. The majority of the Supreme Court including Das, J. preferred to follow the American practice. Das, J. pointed out the difference between the position in England where the House of Lords had held that it was bound by its earlier decisions and India and observed: (Bengal Immunity case, AIR p. 672, para 15)

"15.... But, in a country governed by a federal Constitution, such as the United States of America and the Union of India are, it is by no means easy to amend the Constitution if an erroneous interpretation is put upon it by this Court....

An erroneous interpretation of the Constitution may quite conceivably be perpetuated or may at any rate remain unrectified for a considerable time to the great detriment to public well-being. The considerations adverted to in the decisions of the Supreme Court of America quoted above are, therefore, apposite and apply in full force in determining whether a previous decision of this Court should or should not be disregarded or overruled. There is nothing in our Constitution which prevents us from

departing from a previous decision if we convinced of its error and its baneful effect on the general interests of the public."

He then proceeded to point out a number of circumstances which made it necessary to set right what he considered to be the harmful effects of the earlier decision which he believed to be erroneous. He ultimately formulated the governing principle in these words: (Bengal Immunity case, AIR p. 673, para 19)

"19. Reference is made to the doctrine of finality of judicial decisions and it is pressed upon us that we should not reverse our previous decision except in cases where a material provision of law has been overlooked or where the decision has proceeded upon the mistaken assumption of the continuance of a repealed or expired statute and that we should not differ from a previous decision merely because a contrary view appears to us to be preferable.

It is needless for us to say that we should not lightly dissent from a previous pronouncement of this Court. Our power of review, which undoubtedly exists, must be exercised with due care and caution and only for advancing the public well-being in the light of the surrounding circumstances of each case brought to our notice; but we do not consider it right to confine our power within rigidly fixed limits as d suggested before us."

The minority, consisting of three Judges, did not, however, accept this position.

On the merits, the majority of the Court consisting of four Judges, including the acting Chief Justice, came to the conclusion that the provisions of several parts of Article 286 made it clear that it had to deal with different topics and one part could not be projected or read into another. The conclusion reached was that the Explanation to clause

(1) (a) could not be ultimately extended to clause (2) either as an exception or as a proviso and read as limiting the ambit of clause (2). Until Parliament provided otherwise by law in exercise of its powers under clause (2) of the Article,

no State could impose any tax on sales or purchases taking place in the course of inter-State trade or commerce. The decision of Sastri, C.J. to the extent that it decided to the contrary could not be accepted as well founded on principle or authority.

The dissenting view was expressed in powerful opinions by each of the three dissenting Judges. They took the view that the scheme of the Article was that it fixed the situs of the sales with a view to avoid multiple taxation. For that purpose, it divided sales into two categories, "inside sales" and "outside sales", and enacted that a State cannot tax an outside sale. When, in the same context, the Explanation declared that a sale must be deemed to have taken place in the State in which the goods are delivered for consumption, its purpose clearly was to take such sales out of inter-State trade and stamp them with the character of inter-State sales.

The most powerful dissent was that delivered by Aiyar, J. whose judgment was the most exhaustive and the longest of the judgments delivered by the various Judges. One of the notable judgments in the case was that of Justice Bhagwati who had formed part of the majority in United Motors case, agreeing with the view of Sastri, C.J. He reversed his former view with skill, giving his reasons in detail. He had the courage to state that his opinion in the earlier decision "was clearly erroneous and public interest demand the same should be reversed.”

71. Another instance where a Hon’ble judge of the Supreme Court had to change his views in a subsequent case has been noted in Paragraph nos.18 and 19 of the judgment which are extracted hereinbelow: - “18. There is yet another instance of a Constitution Bench which comprised of Y.V. Chandrachud, C.J., P.N. Bhagwati, S. Murtaza Fazal Ali, Amarendra Nath Sen, P. Balakrishna Eradi, JJ. In Gian Devi Anand v. Jeevan Kumar, where the question which arose was whether statutory tenancy is heritable. In Gian Devi Anand, the correctness of the decision in Ganpat Ladha v. Sashikant Vishnu Shinde came up for consideration. The decision in Ganpat Ladha case had been overruled and

Damadilal v. Parashram was affirmed. The Court has observed thus: (Gian Devi Anand case, SCC p. 713, para 35)

“35. In our opinion, the view expressed by this Court in Ganpat Ladha v. Sashikant Vishnu Shinde and the observations made therein which we have earlier quoted, do not lay down the correct law. The said decision does not properly construe the definition of the "tenant" as given in Section 5(11)(b) of the Act and does not consider the status of the tenant, as defined in the Act, even after termination of the commercial tenancy. In our judgment in Damadilal v. Parashram, this Court has correctly appreciated the status and the legal position of a tenant who continues to remain in possession after termination of the contractual tenancy. We have quoted at length the view of this Court and the reasons in support thereof. The view expressed by a seven- Judge Bench of this Court in V. Dhanapal Chettiar v. Yesodai Ammal and the observations made therein which we have earlier quoted, lend support to the decision of this Court in Damadilal case. These decisions correctly lay down that the termination of the contractual tenancy by the landlord does not bring about a change in the status of the tenant who continues to remain in possession after the termination of the tenancy by virtue of the provisions of the Rent Act. A proper interpretation of the definition of tenant in the light of the provisions made in the Rent Acts makes it clear that the tenant continues to enjoy an estate or interest in the tenanted premises despite the termination of the contractual tenancy."

19. P.N. Bhagwati, J. concurred with the view and overruled his own decision in Ganpat Ladha case. Bhagwati, J. has observed thus: (SCC p. 576, раrа 3)

"3. On 6-11-1960 the appellant landlord filed a suit for eviction which is now before us. On 30-8-1962, the first date of hearing, the issues were framed. On 18-6-1963, the trial court decreed the suit on the following findings: the notice to quit was valid and duly served; the arrears of rent were properly demanded under Section 12(2) of the Act; the demand was not complied with in accordance with law by the tenant within a month of the demand; the case was governed by the provisions of Section 12(3)(b) and not by

the provisions of Section 12(3)(a) because a dispute about the fixation of standard rent was still pending when the notice demanding standard rent was given; nevertheless, the tenant was not entitled to the protection of Section 12(3)(b), since he had not paid the rent regularly in accordance with the conditions under which the protection of Section 12(3)(b) could be given to him.”

72. In Keshwanand Bharati v. State of Kerala (1973) 4 SCC 225 also, the earlier view propounded by the Hon'ble Supreme Court in Sajjan Singh v. State of Rajasthan AIR 1965 SC 845 was overruled even though some of the Hon’be judges in the two cases were common. Following observations of Jackson, J. of the United State Supreme Court in Commonwealth of Massachusetts v. United States 1948 SCC OnLine US SC 48 are very apt on this aspect: -

“‘ I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.’

73. Similarly, Lord Denning had also echoed the same observations in Ostime v. Australian Mutual Provident Society (1960) AC 459 in the following words: - “ ‘The doctrine of precedent does not compel Your Lordships to follow the wrong path until you fall over the edge of the cliff.’ ”

74. Thus, there are umpteen number of instances where the Hon’ble judges having rendered a decision in a case, took a contrary view in the subsequent case on finding that whatever they had said in the earlier judgment was not correct. In State of West Bengal v. Shivananda Pathak (supra) the Apex Court pointed out as under: - “29. As pointed out earlier, an essential requirement of judicial adjudication is that the Judge is impartial and neutral and

is in a position to apply his mind objectively to the facts of the case put up before him. If he is predisposed or suffers from prejudices or has a biased mind, he disqualifies himself from acting as a judge. But Frank, J. of the United States in Linahan Inc., In re says:

‘If, however, "bias" and "partiality" be defined to mean the total absence of preconceptions in the mind of the Judge, then no one has ever had a fair trial and no one will. The human mind, even at infancy, is no blank piece of paper. We are born with predispositions.... Much harm is done by the myth that, merely by ... taking the oath of office as a Judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine.' [See also Griffith and Street, Principles of Administrative Law (1973 Edn.), p. 155; Judicial Review of Administrative Action by de Smith (1980 Edn.), p. 272; II Administrative Law Treatise by Davis (1958 Edn.), p. 130.]

30. These remarks imply a distinction between prejudging of facts specifically relating to a party, as against preconceptions or predispositions about general questions of law, policy or discretion. The implication is that though in the former case, a judge would disqualify himself, in the latter case, he may not. But this question does not arise here and is left as it is.”

75. Therefore, it would be preposterous to assume that Shri Ajay Talegaonkar (learned Technical Member of the Bench) would, come what may, stick to the views expressed by him during the deliberations of the expert committee and would not be amenable to change his views in case the same appear to be incorrect upon consideration of the arguments to be advanced by the learned counsels for the parties. Such obstinacy cannot be expected from a judge or a Tribunal member while deciding a case. Moreover, the presence of Judicial Member on the bench strengthens the belief that there would be a proper judicial scrutiny of the contentions/submissions to be made on behalf of the parties and the possibilities of an impartial judgment cannot be undermined. When there is nothing wrong in holding a particular view on a subject in a previous

judgment for or against the views canvased by a litigant, views expressed by a member of the committee during its deliberations can not be made basis to debar him from hearing a case subsequently when he is appointed as a judge or a Tribunal member. Accepting plea of recusal on such an imagined apprehension of legal predisposition would actually tantamount to acceding to the requirement that a judge having a particular view and leaning in favour of the views which suites a particular litigant, should be on the bench. This would in reality permit bench hunting and would be against the judicial discipline. A litigant has got the right to make arguments and to convince the judge or the bench to change the decision or views expressed earlier by the judge or the bench.

76. Much was said on the “Doctrine of Necessity” also during the course of arguments by the learned counsels. The Doctrine was invoked by the learned senior counsel for respondent CTUIL and such invocation was sternly opposed by the learned senior counsel for the appellants. In my opinion, the instant case is a fit case where this Doctrine applies. At present, there are only two technical members in the Tribunal one of whom namely Ms. Seema Gupta (presently officiating as the Chairperson) was already made to recuse from hearing these appeals leaving only the other technical member Shri Ajay Talegaonkar to be with myself on the bench to hear these appeals. There is no prospect of any new technical member being appointed in the Tribunal in near future. There is an interim order operating in favour of the appellants, the vacation of which is being sought by respondent CTUIL by way of the applications preferred in this regard. It would be a travesty of justice to postpone the decision on these applications till a new technical member joins this Tribunal which may not be till the end of year 2027 or the beginning of the year 2028. The respondent CTUIL has a right to be heard on its applications which,

ultimately, may or may not be allowed by the Tribunal. However, such right of the respondent CTUIL cannot be denied merely on the basis of a misconceived apprehension of bias against Shri Ajay Talegaonkar (learned Technical Member) raised by the appellants.

77. The Doctrine of Necessity is an exception to the rule that no person shall be a judge in his own cause. Therefore, even in case of bias or interest in the matter, a judge may be required to adjudicate if there is no other authority or judge to decide the issue. It is well recognized that law does not contemplate a vacuum and if choice is between allowing a biased person to act or stifle the action altogether, the choice must be in favour of the former (see Lalit Kumar Modi v. Board of Control for Cricket in India (2011) 10 SCC 106). Therefore, in this case, even if there would have been any sort of merit in the apprehension of bias raised by the appellants, still it would have been imperative that Mr. Ajay Talegaonkar would sit along with the Judicial Member in the bench to hear and decide the applications for vacation of stay preferred by the respondent CTUIL.

78. The argument on behalf of the appellants that the respondent CTUIL has an alternate remedy by way of writ petition under Article 227 of the Constitution of India before the Hon'ble High Court which would negate the application of Doctrine of Necessity, is sans any force. In the instant case, the interim order dated 08.10.2020 has been passed by this Tribunal and as per well established legal jurisprudence the same cannot be vacated by any other judicial or quasi-judicial authority except this Tribunal itself. It is not a case where the appellants or the respondent CTUIL has filed a fresh appeal wherein apprehension of bias is raised against any member of the bench in this Tribunal. In that case, the parties would have

been relegated to the writ jurisdiction of the High Court for the reason that there would not have any application of mind by this Tribunal as the appeal would be a fresh one. That is not the case herein. The interim order passed in these appeals by this Tribunal on 08.10.2020 cannot be vacated by the Hon’ble High Court in a writ jurisdiction under Article 227 of the Constitution of India.

79. Hence, I entirely concur with the observations of shri Ajay Talegaonkar (learned Technical Member) in his separate judgment and fully agree to the decision taken by him.

Virender Bhat Judicial Member

ORDER OF THE BENCH In view of the judgment delivered by Shri Ajay Talegaonkar, learned Technical Member, on the plea of recusal directed against him by the appellants, as concurred by the learned Judicial Member, Shri Virender Bhat, the plea of recusal stands rejected.

List applications for vacation of stay order dated 08.10.2020 for hearing on 30.07.2026. PRONOUNCED IN THE OPEN COURT ON THIS 07th DAY OF JULY, 2026. Ajay Talegaonkar Technical Member (Electricity)

Virender Bhat Judicial Member

REPORTABLE / NON-REPORATBLE

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