WEST BENGAL STATE ELECTRICITY TRANSMISSION COMPANY LIMITED vs CENTRAL ELECTRICITY REGULATORY COMMISSION & Ors. on 15 December 2023

JUDGEMENT

PER HON’BLE MR. VIRENDER BHAT, JUDICIAL MEMBER

1. The appellant West Bengal State Electricity Transmission Company Limited (WBSETCL) has assailed the order dated 03.12.2018 passed by Respondent No. 1, the Central Electricity Regulatory Commission (CERC) whereby its application for condonation of delay in filing the review petition has been dismissed. There was a delay of 53 days in filing the review petition.

2. The 2nd respondent herein, India Power Corporation Limited (IPCL) had filed petition No.158/MP/2012 before the CERC seeking certain directions against the 3rd respondent herein. The petition was disposed of by the Commission vide order dated 21.09.2012 with the following directions:- “15. We direct the CTU to expeditiously process the application of the petitioner for grant of connectivity in accordance with Connectivity Regulations and convey its decision to the applicant within two weeks of receipt of this order.

16. We further direct the CTU to ensure that the applications for connectivity and long term access and medium term open access are processed and decisions on the applications are conveyed within the timeline specified in the Connectivity Regulations.”

3. It appears that in terms of these directions, the 3rd respondent granted connectivity to IPCL vide letter dated 12.10.2012, but later on cancelled the same vide letter dated 27.10.2016 when the 3rd respondent sought certain modifications in the same. The 2nd respondent IPCL submitted a fresh application dated 18.01.2017 for connectivity which was rejected by Central Transmission Utility (CTU) vide letter dated 12.04.2017. Vide subsequent letter dated 24.05.2017, the CTU also denied the request of 2nd respondent IPCL to consider the closure of its application for connectivity.

4. The 2nd respondent then filed a fresh petition No.168/MP/2017 before the CERC, New Delhi, seeking quashing of the said letter dated 24.05.2017 of CTU with further directions to CTU to grant connectivity in terms of Commission’s previous order dated 21.09.2012. Vide order dated 29.01.2018, the Commission quashed the said letter dated 24.05.2017 of CTU and disposed of the petition by directing the CTU to grant connectivity to the 2nd respondent.

5. It is against the said order dated 29.01.2018 of the Commission that the appellant filed review petition which was found to be delayed by 53 days and was accordingly dismissed as being barred by time vide impugned order dated 03.12.2018.

6. It was argued by the learned counsel for the appellant that the delay in filing the review petition was not deliberate and occasioned on account of the situation beyond control of the appellant. He submitted that the appellant had never entered appearance before the Commission in the petition No.168/MP/2017 and expected the CTU i.e. 3rd Respondent PGCIL to espouse its cause also before the Commission. He pointed out that the appellant gained knowledge about the order dated 29.01.2018 of the Commission on 07.02.2018 when its copy was received from 3rd Respondent and it came to be known from the perusal of the order that it has been passed against both, the 3rd respondent as well as the appellant. He further submitted that the appellant requested the 3rd respondent PGCIL to approach the Commission by seeking review of the said order dated 29.01.2018 and upon refusal of PGCIL to do so, the Board of Directors of the appellant met in the 1st week of March 2018 to chalk out further strategy. Legal opinion was sought by the appellant and it was advised to file review petition for which the Board of Directors of the appellant again met in the last week of March 2018 and decided to file review petition. He further argued that as per the advice of the lawyer, certified copy of the order dated 29.01.2018 was applied for and the same was obtained from the Registry of the Commission on 26.04.2018, and thereafter the review petition was filed. He argued that the delay in filing the review petition was caused only for the reason that the appellant expected the 3rd respondent to seek review of the said order dated 29.01.2018 of the Commission and further due to multiple hierarchical levels of involvement of various departments of the appellant in taking decision against the said order, engaging a lawyer, obtaining certified copy of the order to be reviewed and drafting/ filing of review petition. It is his submission that no malafide or inaction can be attributed to the appellant in these circumstances and the appellant had made out a sufficient cause for condonation of delay. He further argued that the Commission has committed a grave error in refusing to condone the delay in filing the review petition and therefore the impugned order is liable to be set aside.

7. Per contra, the learned counsels appearing for 2nd and 3rd Respondents would support the impugned order submitting that it does not suffer from any error or infirmity. It is submitted that the appellant itself has been negligent in defending the petition before the CERC as it never appeared before the Commission on any date and even after coming to know about the Commission’s impugned order dated 29.01.2018, did not take any immediate steps for assailing the same and instead chose to ride on the back of the 3rd Respondent by expecting it to seek review of the said order. It is argued that the appellant has taken inordinately long time in filing the review petition and has miserably failed to make out any cogent ground which prevented it to file the review petition within stipulated period of 45 days in terms of Regulation 103 of CERC (Conduct of Business Regulations), 1999. It is further argued that the appellant cannot claim a preferential treatment merely for the reason that it is a government body and cannot claim condonation of delay in filing the review petition mechanically in the absence of any plausible and acceptable explanation for the same. In this regard, reliance is placed upon the judgment of the Hon’ble Supreme Court in State of Madhya Pradesh and Others versus Berulal SLP (C) No.9217 of 2020 decided on 15.10.2020.

8. We have gone through the impugned order and have considered the rival submissions made by the learned counsels for the parties.

9. Admittedly, there has been a delay of 53 days in filing the petition for review of the order dated 29.01.2018 by the appellant before the

CERC, New Delhi. It is also admitted position that there was no representation on behalf the appellant before the Commission on 29.01.2018 when the said order was passed and the appellant gained knowledge of the same on 07.02.2018 upon receipt of a copy of the said order from 3rd respondent. It is further manifest that immediately thereafter, appellant sent letter dated 12.02.2018 to 3rd Respondent asking it to seek a review of the said order dated 29.01.2018 and upon refusal of the 3rd respondent to do so, it initiated steps for assailing the said order by convening a meeting of its Board of Directors and by seeking legal opinion thereafter. It is further to be noticed that subsequent to the refusal by 3rd Respondent to seek review of Commission’s order dated 29.01.2018, the Appellant approached its Board initially for filing appeal against the said order and in pursuance to the legal opinion received thereafter, again approached the Board for filing a review petition and thereafter initiated process for the same. In these circumstances and considering the actions initiated by the appellant upon gaining knowledge of the order dated 29.01.2018 of the Commission, as noted hereinabove, it is difficult to say that the appellant remained negligent and was not diligent in commencing process for assailing the said order.

10. We are constrained to note here that the primary function of the courts/tribunals is to do justice and they must endeavor to decide the matters on merits while adopting a liberal approach towards condoning the delay on sufficient cause. They must avoid adopting pedantic and technical approach, thereby legalizing injustice. We find it apposite to refer to the following observations of the Hon’ble Supreme Court made way back in 1998 in the case titled N. Balakrishnan versus M. Krishnamurthy (1998) 7 SCC 123: - “… A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. … It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. … The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. … Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. …”

11. In the instant case, it cannot be said that there was any gross negligence or deliberate inaction or lack of bonafide on the part of the appellant in filing the review petition. Even though it had initially expected the 3rd Respondent to seek review of the order dated 29.01.2018 of the Commission and accordingly sent a letter dated 12.02.2018 in this regard to the said respondent yet upon refusal of the said respondent to do so, it immediately approached its Board and initiated the process for assailing the said order. In our opinion, the explanation put forward by the appellant for not having been able to file the review petition within the stipulated time appears to be plausible as well as acceptable and the Commission has erred in not accepting the same.

12. The reliance placed on behalf of the respondent on the judgment of the Hon’ble Supreme Court in Berulal’s case (supra) is totally misplaced for the reason that the delay in filing appeal in that case was 663 days i.e. more than 1-1/2 years and no acceptable reason had been put forward by the appellant for condonation of delay. As already noted hereinabove, in the case at hand there was delay of only 53 days in filing the review petition which has been satisfactorily explained by the appellant.

13. In the light of above discussion, the impugned order of the Commission cannot be sustained in the eyes of law. The same is hereby set aside. The Appeal is allowed and the delay in filing the review petition stands condoned.

14. The Commission shall hear the review petition now on merits. Pronounced in the open court on this 15th Day of December, 2023.

(Virender Bhat) Judicial Member (Sandesh Kumar Sharma) Technical Member (Electricity)

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