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2000 DIGILAW 161 (ORI)

CHANDRA SEKHAR SWAIN v. STATE OF ORISSA

2000-03-23

P.K.MISRA, P.K.MISRA

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JUDGMENT : P.K. Misra, J. - The Petitioner has challenged the constitution of a Selection Committee for appointment of Member to the Orissa Electricity Regulatory Commission and prayed for quashing the proceeding dated 4-6-1999 and sought for a direction prohibiting the State of Orissa (opposite party No. 1) from filling-up the vacancy in the Orissa Electricity Regulatory Commission. The main contention of the Petitioner is that opposite party No. 1 has constituted the Selection Committee under the provisions contained in the Orissa Electricity Reform Act, 1995, even though it is required to follow the procedure contemplated in the Electricity Regulatory Commissions Act, 1998 (Central Act 14 of 1998). 2. To appreciate the contentions raised by the Petitioner, a historical prospective of the different enactments in the field is necessary. The generation, transmission, distribution and supply of electricity in the State of Orissa was being managed and controlled by the Orissa State Electricity Board constituted under the Electricity (Supply) Act, 1948. The State Legislature enacted the Orissa Electricity Reform Act, 1995 (hereinafter called the "Orissa Act") with the object to provide re-structuring of electricity industry for rationalisation of generation,transmission and supply of electricity in the State. This Act after obtaining the assent from the President was enforced with effect from 1st. April, 1996, as per the provision contained in Section 1(3) of such Act. The validity of such Act was challenged in several writ applications and ultimately, its validity was upheld by the decision of a Bench of this Court, reported in 1998 (2) O.L.R 667 (M/s. Eastern Metals,etc., etc. v. State of Orissa and Ors.. 3. It appears that such Act paved the way for enacting similar enactments particularly by the State of Haryana and subsequently by the Parliament. The Electricity Regulatory Cemmissions Act, 1998 (hereinafter called the "Central Act") which came into force with effect from 25th, April,J998, was enacted to provide for establishment of Central Electricity Regulatory Commission and state Electricity,Regulatory Commissions, rationalisation of electricity tariff, transparent policies regarding subsidies, promotion of efficient and enviromentally benign policies and for matters connected therewith or incidental thereto. 4. The Orissa Act, inter alia, has provided for establishment and constitution of a Commission to be known as the Orissa Electricity Regulatory Commission, which is envisaged to be a body corporate with perpetual successor as per Section 3(1) of the Orissa Act. 4. The Orissa Act, inter alia, has provided for establishment and constitution of a Commission to be known as the Orissa Electricity Regulatory Commission, which is envisaged to be a body corporate with perpetual successor as per Section 3(1) of the Orissa Act. Section 3(2) envisages that the Commission is to consist of three members to be appointed by the State Government from persons selected by the Selection Committee constituted for the purpose. Section 4(2) of the Orissa Act envisages that the Selection Committee shall consist of the Chairman of the Public Service Commission as its Chairman, the Secretary in charge of the Department of Energy of the State Government as its Convenor, and the Chairman or any other Member of the Central Electricity Authority as its other Member. The only function of such Selection Committee constituted in accordance with Section 4 of the Orissa Act is to recommend candidates for appointment as Member of the Orissa Electricity Regulatory Commission and recommending of names for filling-up of vacancies in such Commission from time to time. 5. At this stage, it is necessary to notice some of the provisions contained in the Central Act. Chapter-IV of the Central Act contains provisions regarding establishment and incorporation of a Commission for the State to be known as the Electricity Regulatory Commission of the particular State as laid down in Section 17(1) of the Central Act. Sub-section (2) of Section 17 envisages that such Commission shall be a body corporate having perpetual succession. Section 17(4) envisages that the State Commission shall consist of not more than three members including the Chairperson and Sub-section (6) envisages that the Chairperson and Members of the State Commission shall be appointed by the State Government on the recommendation of the Selection Committee. The Selection Committee as provided in Section 18(1) shall consist of a person who has been a Judge of the High Court as Chairperson, the Chief Secretary of the State and Chairperson or Member of the Central Electricity Authority as its other Member. A comparison of the provisions contained in the Orissa Act and the Central Act relating to constitution of Selection Committee thus, makes it clear that the two provisions are quite dissimilar. 6. A comparison of the provisions contained in the Orissa Act and the Central Act relating to constitution of Selection Committee thus, makes it clear that the two provisions are quite dissimilar. 6. The main contention of the Petitioner is that the Central Act being a latter Act has overriding effect over the provisions contained in the Orissa Act and the Selection Committee constituted by the State Government in accordance with the provisions contained in Section 4 of the Orissa Act and by ignoring the provisions contained in Section 18 of the Central Act must be taken to be illegal and as such the Orissa Electricity Regulatory Commission should not be reconstituted and the vacancy arising in the Orissa Electricity Regulatory Commission should not be filled up on the basis of recommendation of such illegally constituted Selection Committee. 7. In this context, apart from relying upon the provisions contained in Article 254 of the Constitution of India, the learned Counsel appearing for the Petitioner has also placed reliance upon the provisions contained in Section 52 of the Central Act. The provisions contained in Article 254 of the Constitution are quoted hereunder: 254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States.- (1) If any provision of a law made by the Legislature of a State is repugnant to any provisions of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case, may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shal1, if it has been reserved for the consideration of the President and has received his assent, prevail in the State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law so made by the Legislature of the State. The provision contained in Section 52 of the Central Act is extracted hereunder: 52. Save as otherwise provided in Section 49, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act. 8. In view of the provisions contained in Article 254, there cannot be any doubt that when a State Legislature has enacted any law relating to a matter contained in the Concurrent List of the Seventh Schedule of the Constitution, the provisions contained in such State Act shall give way to any contrary provisions contained in the Central Act. There is no dispute that the Central Act in the present case is a latter Act and in normal course, the provisions contained in such Central Act would have overriding effect over any inconsistent provisions contained in the State Act. 9. The contention of the Petitioner based on aforesaid analysis, however, ignores an important provision contained in the Central Act in the shape of Section 41, which runs as follows: 41. The provisions of this Act in so far as they relate to the State Commission shall not apply to the Commissions established under the Orissa Electricity Reform Act, 1995 or the Haryana State Electricity Reform Act, 1997. The contention of the Petitioner has been met by the counsels appearing for the opposite parties as well as the Intervenors by relying upon the aforesaid provision contained in Section 41 of the Central Act. The contention of the Petitioner has been met by the counsels appearing for the opposite parties as well as the Intervenors by relying upon the aforesaid provision contained in Section 41 of the Central Act. The plain and unambiguous language of Section 41 leaves no room for doubt that the provisions contained in the Central Act relating to the State Commission are not to apply to the Commissions established under the Orissa Electricity Reform Act, 1995 or the Haryana State Electricity Reform Act, 1997. There cannot be any doubt that provisions contained in Chapter-IV of the Central Act relating to State Electricity Regulatory Commission are not to apply to the Commission established under the Orissa Act. 10. Faced with the aforesaid hurdle, the learned counsel for the Petitioner has rather ingeniously contended that Section 41 of the Central Act only saves the initial establishment of the Orissa Electricity Regulatory Commission, but subsequent reconstitution of such Commission must be in accordance with the provisions conitained in the Central Act. This submission ignores the basic concept that both under the Orissa Act as well as under the Central Act, a State Commission is a body corporate having perpetual succession and the provisions contained in a paricular Act relating to filling-up of subsequent vacancies cannot be dissociated from the other provisions. The clear language contained in section 41 of the Central Act does not brook any such exception. On the other hand, the intention is apparent that the Central Act has clearly taken note of the fact that State Commission had already been established under the Orissa Electricity Reform Act, 1995 and the provisions of the Central Act so far as they relate to State Commissions shall not apply to such Orissa Electricity Regulatory Commission established under the Orissa Act. Any other interpretation would be doing violence to the plain language used in Section 41. It is to be further noticed that in accordance with the provisions contained in Article 254 of the Constitution, the provisions contained in the State Act can be repealed or amended by a subsequent Central Act. Any other interpretation would be doing violence to the plain language used in Section 41. It is to be further noticed that in accordance with the provisions contained in Article 254 of the Constitution, the provisions contained in the State Act can be repealed or amended by a subsequent Central Act. As a corollary to aforesaid power, it can be said that the Parliament has also the specific jurisdiction to save all the provisions or particular provisions of a State Act and Section 41 of the Central Act is only reflective of such intention to save the Provisions of the Orissa Act in so far as they relate to the Orissa Electricity Regulatory Commission. 11. For the aforesaid reasons, the main contention of the Petitioner that the Selection Committee constituted by the State Government is illegal cannot be accepted. Accordingly, the writ application is bound to fail and is dismissed. 12. In the writ application, several allegations have been made relating to eligibility/suitabilityof certain persons shortlisted for the purpose of final selection. It is an admitted fact that in view of the order of stay, no such selection has taken place and in the facts and circumstances of the case, it would be premature to make any observation on the eligibility /suitability of such persons named in Annexure-2, particularly when those persons are not before this Court. Thus, the aforesaid question raised by the Petitioner is left open to be agitated if necessary in any appropriate forum. 13. In the writ application, no reference had been made to Section 41 of the Central Act. There is not an iota of doubt that if such provision would have been noticed, possibly no stay order would have been passed. The writ petition has been filed as a public interest litigation. In normal circumstances, keeping in view the fact that relevant provision had not been reflected in the writ application, one would have been tempted to award cost against the Petitioner. However, keeping in view the peculiar facts and circumstances of the case, it is not necessary to saddle the Petitioner with cost in the present case. Ch. P.K. Misra, J. 14. I agree. Writ application dismissed. Final Result : Dismissed