Institute of Human Resources Development (IHRD) v. Kerala State Electricity Regulatory Commission, Kerala State Electricity Board, Appellate Tribunal for Electricity

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 14[TH] DAY OF AUGUST 2023 / 23RD SRAVANA, 1945 WP(C) NO. 26497 OF 2023 ``` ## **`PETITIONER:`** ``` THE INSTITUTE OF HUMAN RESOURCES DEVELOPMENT (IHRD) PRAJO'E TOWERS, VAZHUTHACAUD, THIRUVANANTHAPURAM – 14, REPRESENTED BY ITS DIRECTOR. ``` ``` BY ADVS. DEEPU THANKAN UMMUL FIDA LAKSHMI SREEDHAR LEKSHMI P. NAIR NAMITHA K.M. ``` ## **`RESPONDENTS:`** - **`1 KERALA STATE ELECTRICITY REGULATORY COMMISSION K.P.F.C. BHAVANAM, CV RAMAN PILLAI RD, VELLAYAMBALAM, THIRUVANANTHAPURAM - 695 010 REPRESENTED BY ITS SECRETARY.`** - **`2 KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VIDYUT BHAVAN, PATTAM, THIRUVANANTHAPURAM, PIN – 695 004.`** - **`3 APPELLATE TRIBUNAL FOR ELECTRICITY 7TH FLOOR, CORE-4, SCOPE COMPLEX, PRAGATI VIHAR, NEW DELHI, PIN – 110 003.`** ``` R1 - SRI. NANDAGOPAL S.KURUP – SC SRI. B. PREMOD – SC, KSEB VIPIN P VARGHESE ADARSH MATHEW MERLINE MATHEW CELINE JOHN MEHNAZ P. MOHAMMED ANIRUDH G. KAMATH ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C).No.26497 OF 2023 ``` ``` 2 ``` ## **`JUDGMENT`** The petitioner is an autonomous educational institution established by the Government of Kerala and registered under the provisions of the Travancore - Cochin Literary Scientific and Charitable Societies Act 12 of 1955. According to the petitioner, the IHRD was categorized among the Government or aided educational institutions and was getting the benefit under LT-VI (A) as per Ext.P3 order issued by the Kerala State Electricity Regulatory Commission. However, by Ext.P5 circular dated 11.07.2019, the Board re-categorised the IHRD institutions under LTVI (F) Tariff. Challenging the re-categorisation and to retain the electricity tariff category under LT-VI (A), though the petitioner approached the Kerala State Electricity Regulatory Commission, the same was rejected by Ext.P6 order. ``` WP(C).No.26497 OF 2023 ``` ``` 3 ``` 2. The petitioner challenged Ext.P6 order before this Court by filing W.P.(C) No.12720 of 2022. This Court, by Ext.P7 judgment, observed that Ext.P6 order is appealable under Section 110 of the Indian Electricity Act, 2003 (for short, ‘the Act’) and permitted the petitioner to pursue the appeal before the Appellate authority, within a period of 45 days from the date of the judgment. 3. Challenging Ext.P7 judgment, the petitioner filed W.A No.1637 of 2022 and this Court by Ext.P8 judgment, dismissed the appeal. However, this Court granted fifteen days’ time from the date of the judgment to prefer an appeal before the Appellate Tribunal. 4. Pursuant to Ext.P8 judgment, the petitioner preferred Ext.P9 appeal before the Appellate Tribunal invoking the provisions of Section 110 of the Act. Since, the appeal was not preferred within the time ``` WP(C).No.26497 OF 2023 ``` ``` 4 ``` granted by the Division Bench, the petitioner also filed Ext.P11 application for condoning the delay. However, Appellate Tribunal, by Ext.P12 order, rejected the appeal on the ground of delay. Challenging Ext.P12, the petitioner has preferred this writ petition. 5. When the writ petition came up for admission, Sri.B.Premod, the learned Standing Counsel for the Kerala State Electricity Board raised a preliminary objection that the writ petition is not maintainable in view of the provisions contained under Section 125 of the Act. Section 125 of the Act reads as follows:- ## “ **125. Appeal to Supreme Court** Any person aggrieved by any decision or order of the Appellate Tribunal, may, file an appeal to the Supreme Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal, to him, on any one or more of the grounds specified in section 100 of the Code of Civil Procedure, 1908 PROVIDED that the Supreme Court may, if it is satisfied that the appellant was prevented by ``` WP(C).No.26497 OF 2023 ``` ``` 5 ``` sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days”. 6. The learned counsel for the petitioner submits that the Appellate Authority has rejected the appeal only on the ground of delay, this Court is not precluded from considering the legality of Ext.P12, on merits. The learned counsel relied on the decision of the Apex Court in **DSR Steel (P) Ltd. Vs. State of Rajasthan and Ors** . [AIR 2012 SC 1602] wherein it was held in Paragraph No.7 as follows:- “We have heard learned Counsel for the parties at considerable length. An appeal Under Section 125 of the Electricity Act, 2003 is maintainable before this Court only on the grounds specified in Section 100 of the Code of Civil Procedure. Section 100 of the Code of Civil Procedure in turn permits filing of an appeal only if the case involves a substantial question of law. Findings of fact recorded by the Courts below, which would in the present case, imply the Regulatory Commission as the Court of first instance and the Appellate Tribunal as the Court hearing the first appeal, cannot be re-opened before this Court in an appeal Under Section 125 of the Electricity Act, 2003. Just as the High Court cannot interfere with the concurrent findings of fact recorded by the Courts below in a second ``` WP(C).No.26497 OF 2023 ``` ``` 6 ``` appeal Under Section 100 of the Code of Civil Procedure, so also this Court would be loathed to entertain any challenge to the concurrent findings of fact recorded by the Regulatory Commission and the Appellate Tribunal. The decisions of this Court on the point are a legion. **Reference to Govindaraju v. Mariamman** (MANU/SC/0084/2005 : AIR 2005 SC 1008), **Hari Singh v. Kanhaiya Lal** (MANU/SC/0548/1999 : AIR 1999 SC 3325), **Ramaswamy Kalingaryar v. Mathayan Padayachi** (MANU/SC/0018/1992 : AIR 1992 SC 115), **Kehar Singh v. Yash Pal and Ors.** (MANU/SC/0390/1990 : AIR 1990 SC 2212), **Bismillah Begum (Smt.) (Dead) by L.Rs. v. Rahmatullah Khan (Dead) by L.Rs.** (MANU/SC/0051/1998 : AIR 1998 SC 970) should, however, suffice.” 7. The learned counsel for the petitioner also placed reliance on the decision of a Division Bench of this Court in **Sreenivasan V.K v. Commissioner of Income Tax** [2012 KHC 3], wherein, this Court, while considering an appeal filed against the orders of the Income Tax Appellate Tribunal declining to entertain the appeals on account of delay, held that though a statutory appeal under Section 260 (A) of the Income Tax Act is not maintainable against the ``` WP(C).No.26497 OF 2023 ``` ``` 7 ``` order of the Tribunal declining to condone the delay, the jurisdiction of the High Court under Article 226 of the Constitution of India can be invoked. Paragraph ## No.7 of the said decision reads as follows:- “7. Even though a statutory appeal under S.260A is not maintainable against the orders of the Tribunal declining to condone the delay, the aggrieved person can probably invoke the jurisdiction of the High Court under Art.226 and Art.227 of the Constitution and probably, in appropriate cases, the High Court can grant relief. The appeals are dismissed with the above observations.” 8. I am afraid both the above decisions cannot be made applicable to the facts of the case on hand. 9. When Section 125 of the Act provides for an appeal to Supreme Court against any decision or order of the Appellate Tribunal, the petitioner cannot invoke the jurisdiction of this Court to challenge the same. It is to be noted that the Act provides for hierarchy of remedies against the categorization of tariff. Challenging Ext.P5, the petitioner has approached the Appellate Tribunal invoking the ``` WP(C).No.26497 OF 2023 ``` ``` 8 ``` provisions under Section 110 of the Act and the Appellate Tribunal has passed Ext.P12 impugned order. It is for the petitioner to invoke the remedies as provided under the Act against Ext.P12 and the petitioner cannot switch over to another remedy in midway and invoke the jurisdiction of this Court. Therefore, leaving open the contentions of the petitioner, the writ petition is dismissed. ## **`Sd/-`** ``` MURALI PURUSHOTHAMAN JUDGE ``` SPR ``` WP(C).No.26497 OF 2023 ``` ``` 9 ``` ## **`APPENDIX`** ## **`PETITIONER’S EXHIBITS:-`** ``` EXHIBIT P1A TRUE COPY OF THE G.O.(MS) NO. 91/94/HEDN DATED 08/06/1994. EXHIBIT P2A TRUE COPY OF THE G.O. (MS) NO. 55/2017/HEDN DATED 14/02/2017. EXHIBIT P3A TRUE COPY OF THE RELEVANT PAGES OF THE PROCEEDINGS FOR THE DETERMINATION TARIFF FOR THE FINANCIAL YEAR BY ORDER NO. 1007/F&T/2016/KSERC DATED 17/04/2017. EXHIBIT P4. A TRUE COPY OF THE RELEVANT PAGES OF THE ORDER IN OA NO. 15/2018. EXHIBIT P5A TRUE COPY OF THE CIRCULAR DATED 11/07/2019. EXHIBIT P6A TRUE COPY OF THE ORDER 29/09/2021 ISSUED BY THE FIRST RESPONDENT ALONG WITH THE COVERING LETTER COMMUNICATING THE SAME. EXHIBIT P7A TRUE COPY OF THE JUDGMENT DATED 01/09/2022 IN WPC NO. 12720/2022. EXHIBIT P8A TRUE COPY OF THE JUDGMENT DATED 14/11/2022 IN W.A NO. 1637/2022. EXHIBIT P9A TRUE COPY OF THE APPEAL NUMBERED AS DFR NO. 551/2022 DATED 14/12/2022 FILED BY THE PETITIONER BEFORE THE APPELLATE TRIBUNAL WITHOUT EXHIBITS. EXHIBIT P10A TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE APPELLATE TRIBUNAL WITHOUT EXHIBITS ARE PRODUCED. EXHIBIT P11A TRUE COPY OF THE DELAY PETITION FILED BY THE PETITIONER BEFORE THE APPELLATE TRIBUNAL WITHOUT EXHIBITS IS EXHIBIT P12A TRUE COPY OF THE ORDER N DRF NO.551/2022 AND IA NO. 450/2023 DATED 25/05/2023. ``` ## **`RESPONDENTS EXHIBITS: NIL.`**