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2003 DIGILAW 2899 (ALL)

Samtel Color Limited v. U. P. Power Corporation

2003-12-11

K.S.RAKHRA, PRADEEP KANT

body2003
( 1 ) THESE are the five appeals which have been filed by Sri Vishal dixit challenging the order dated 12. 9. 2002 as well as 4. 10. 2002 passed by the Regulatory Commission. On a specific query being put to the counsel for the appellants regarding the order dated 4. 10. 2002, he has stated that no order has been passed on that date but the same has wrongly been mentioned in the memo of appeal. In view of this statement, the question of limitation in challenging the order dated 12. 9. 2002 may also have to be seen,to find out that whether the appeals have been filed within the period prescribed. ( 2 ) THESE matters, as already observed in our order passed on earlier occasion, were filed before the learned Single Judge whereas certain matters having the same controversy and decided by the Regulatory commission were filed before the Division Bench. Learned counsel for the respondents, therefore, prayed that all matters be taken up together and in pursuance thereof these matters which were filed before the learned single Judge were directed to be taken up before the Division Bench alongwith other appeals on the ground that the learned counsel for the respondent stated that the valuation of the appeal which have been shown in the present appeals have wrongly been shown inasmuch the demand was of more than Rs. 5 lacs in every case but by showing the appeals undervalued, it was filed before the learned Single Judge and a blanket stay order was obtained from the court of learned Single Judge. ( 3 ) IN support of his submission learned counsel for the respondents drew our attention to all the appeals and for example in Appeal No. 78 of 2002 in the affidavit filed alongwith the stay application, the appellant himself has stated in para 9 that the demand which was agitated before the regulatory Commission was of Rs. 1,23,29,401=60 whereas in the memo of appeal valuation has been shown as Rs. 2,04,310/ -. It is not clear as from where the appellant has valued the appeal to the aforesaid amount. 1,23,29,401=60 whereas in the memo of appeal valuation has been shown as Rs. 2,04,310/ -. It is not clear as from where the appellant has valued the appeal to the aforesaid amount. ( 4 ) ON specific query being put, the learned counsel submitted that because in the claim rejected by the Regulatory Commission, the question on merit was not decided nor the liability was fixed upon the appellant of any particular amount, therefore, he has fixed this amount of Rs. 2,04,310/ -. To the query made that while assessing the valuation of the appeal, it is the demand which has been made and the demand which might have been challenged in the appeal could have been the real valuation for the purpose of filing the appeal, learned counsel could not show any rule or authority that for an existing demand of Rs. 1,23,29,401=60 when the claim has been rejected, may be on technical ground or for any other reason, the valuation of the appeal would stand reduced to any amount other than the amount for which the claims were filed. So is the case in all other four appeals. ( 5 ) LEARNED counsel for the respondents has also pointed out that on the one hand the appellant has stated that the valuation of the appeal is much below 5 lacs but in the stay application prayer for stay of recovery of the amount which is under demand has been prayed for and an order of stay has been passed with respect to the entire demand. ( 6 ) APART from this, the impugned order does not say that the demand was unjustified nor there is any interference by the Regulatory commission to the demand made. The Regulatory Commission only stated that in view of the Division Bench judgment passed by the High court in the case of M/s LML Ltd. v. State of U. P. and others, the circular which have already been declared void and non est cannot be looked into. In the light of this the appellant thought of moving an application praying that they may be granted time for seeking clarification from the High Court. The Commission, vide order dated 12. 9. In the light of this the appellant thought of moving an application praying that they may be granted time for seeking clarification from the High Court. The Commission, vide order dated 12. 9. 2002 very clearly observed that it is not for the Commission to permit the petitioner to approach the High Court but it was for the petitioners themselves to take decision in the matter, as they may deem appropriate as per the legal advice tendered to them. In the aforesaid order, the Commission has also taken note of the controversy and refused to grant any relief. Thus, prima facie, it cannot be said that the matter of the appellants has not been considered by the Commission and, therefore, a lesser valuation could have been fixed for filing the appeal. We also fail to appreciate that if the appellants were of the view that a clarification is needed of the order passed by the Division Bench, instead of moving the Division Bench, they have preferred to file an appeal before the learned Single Judge. Obviously, the learned Single Judge would not be in a position to clarify or modify the order passed by the Division Bench. ( 7 ) ANOTHER objection has been raised by the learned counsel for the appellants that this court sitting in Division Bench cannot hear the matter nor can modify the interim order unless the Honble Chief Justice or the learned Single Judge passes an order that the appeals be heard by the division Bench. Similar maters are pending before the Division Bench and on the request of the learned counsel for the respondents, these matters have come before the Division Bench. In view of the facts stated above, it is just possible that the appeals may not be maintainable before the learned Single Judge but on the request made by the learned counsel for the appellant, we deem it appropriate that the matter be listed before honble the Chief Justice in the next week for passing appropriate orders. ( 8 ) LEARNED counsel for the respondents have also submitted that the action of the appellants is nothing but abuse of the process of the court wherein the appeal has been got entertained by the learned Single Judge by concealment of real valuation in which blanket stay order has also been obtained. We do not intend to advert to this argument at present. We do not intend to advert to this argument at present. ( 9 ) LET First Appeal Nos. 75/2002,76/2002,78/2002,82/2002 and 96/2002 be delinked and the same be listed, on any day, when possible, in the next week before Honble the Chief Justice for passing appropriate orders. . .