Meghalaya High Court
Byrnihat Industries Association vs Meghalaya State Electricity … on 2 June, 2025
Author: H. S. Thangkhiew
Bench: H. S. Thangkhiew
2025:MLHC:463
Serial No. 01
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C). No. 339 of 2024 with
WP(C). No. 9 of 2025
WP(C). No. 13 of 2025
Date of Decision: 02.06.2025
WP(C). No. 339 of 2024
Byrnihat Industries Association,
A Society registered under the
Meghalaya Societies Registration Act
Having its registered office at Upper
Baliyan, Umtru Road, Byrnihat,
Ri-Bhoi District, Meghalaya
Represented by its Executive Committee
Member, Shri. Prasanna Kumar Mishra,
S/o (L) J.B.Mishra,
R/o Dona Presidency,
Sixth Floor, B-Block VIP Road,
Six Mile, Guwahti-781002
Assam.
... Petitioner
-Versus-
1. Meghalaya State Electricity Regulatory Commission,
New Administrative Building,
1st Floor, Left Wing.
Lower Lachumiere,
Shillong-793001, Meghalaya.
2. The Secretary,
Meghalaya State Electricity Regulatory Commission,
New Administrative Building,
1st Floor, Left Wing.
Lower Lachumiere,
Shillong-793001, Meghalaya.
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3. The Director,
Meghalaya Power Generation
Corporation Limited,
Lumjingshai Shillong,
East Khasi Hills District
Meghalaya.
4. The Director,
Meghalaya Power Transmission
Corporation Limited,
Lumjingshai Shillong,
East Khasi Hills District,
Meghalaya.
5. The Director,
Meghalaya Power Distribution
Corporation Limited,
Lumjingshai Shillong
East Khasi Hills District
Meghalaya.
...Respondents
WP(C). No. 9 of 2025
1. M/s. Pioneer Carbide Pvt. Ltd.
Through its authorized representative
Mr. Utkarsh Agarwal, Executive
Director, Upper Baliyan, Umtru Road,
Byrnihat – 793101,
Meghalaya.
2. Maithan Alloys Ltd. through its
Authorized representative
Mr. Prasanna Kumar Misra, A-6, EPIP,
RAJABAGAN, BYRNIHAT, DIST-
RIBHOI, MEGHALAYA- 793101.
…Petitioners
-Versus-
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1. Meghalaya State Electricity Regulatory Commission,
New Administrative Building,
1st Floor, Left Wing.
Lower Lachumiere,
Shillong-793001, Meghalaya.
2. The Secretary,
Meghalaya State Electricity Regulatory Commission,
New Administrative Building,
1st Floor, Left Wing.
Lower Lachumiere,
Shillong-793001, Meghalaya.
3. The Director,
Meghalaya Power Generation
Corporation Limited,
Lumjingshai Shillong,
East Khasi Hills District,
Meghalaya.
4. The Director,
Meghalaya Power Transmission
Corporation Limited,
Lumjingshai Shillong,
East Khasi Hills District,
Meghalaya.
5. The Director,
Meghalaya Power Distribution
Corporation Limited,
Lumjingshai Shillong
East Khasi Hills District
Meghalaya.
…Respondents
WP(C). No. 13 of 2025
M/s. Shyam Century Ferrous Limited
Represented by Mr. Venkata Krishna
Nageswara Rao Majji, Director having
Its registered office at Lumshnong,
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P.O. Khliehriat, East Jaintia Hills,
Meghalaya – 793210.
…Petitioner
-Versus-
1. Meghalaya State Electricity Regulatory Commission,
New Administrative Building,
1st Floor, Left Wing.
Lower Lachumiere,
Shillong-793001, Meghalaya.
2. The Secretary,
Meghalaya State Electricity Regulatory Commission,
New Administrative Building,
1st Floor, Left Wing.
Lower Lachumiere,
Shillong-793001, Meghalaya.
3. The Director,
Meghalaya Power Generation
Corporation Limited,
Lumjingshai Shillong,
East Khasi Hills District,
Meghalaya.
4. The Director,
Meghalaya Power Transmission
Corporation Limited,
Lumjingshai Shillong,
East Khasi Hills District,
Meghalaya.
5. The Director,
Meghalaya Power Distribution
Corporation Limited,
Lumjingshai Shillong
East Khasi Hills District
Meghalaya.
…Respondents
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Coram:
Hon’ble Mr. Justice H. S. Thangkhiew, Chief Justice (Acting)
Appearance:
In WP(C). No. 339 of 2024
For the Petitioner(s) : Mr. K. Paul, Sr. Adv. with
Mr. S. Chanda, Adv.
For the Respondent(s) : Mr. S. Venkatesh Adv. with
Mr. A. Nangia, Adv.
Mr. A. Nigotia, Adv.
Mr. A. Singh, Adv.
Ms. F. Langbnang, Adv.
Ms. G.C. Marboh, (For R 1&2)
Mr. A. Kumar, Sr. Adv. with
Ms. S. Laloo, Adv. (For R 3-5).
Appearance:
In WP(C). No. 9 of 2025 and
WP(C). No. 13 of 2025For the Petitioner(s) : Mr. P.K.Tiwari, Sr. Adv. with
Mr. R.J.Das, Adv.
Ms. A.Pradhan, Adv.
For the Respondent(s) : Mr. S. Venkatesh Adv. with
Mr. A. Nangia, Adv.
Mr. A. Nigotia, Adv.
Mr. A. Singh, Adv.
Ms. F. Langbnang, Adv.
Ms. G.C. Marboh, (For R 1&2)
Mr. A. Kumar, Sr. Adv. with
Mr. A.S.Pandey, Adv.
Ms. S. Laloo, Adv. (For R 3-5).
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
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JUDGMENT AND ORDER
1. The petitioners in the lead case i.e. WP(C). No. 339 of 2024, who
are stated to belong to a Society known as the Byrnihat Industries
Association constituting of different industrial units, are before this
Court assailing an order dated 23-08-2024, passed by the Respondent
Commission, which is arrayed herein as respondent No.1, whereby
certain intervention applications were allowed and orders dated 05-06-
2024 and 06-06-2024 withdrawn, while fixing the entire matter for
hearing afresh, for fixation of tariff for the financial years 2024-2025 and
2026-2027, under Section 62 and 64 of the Electricity Act, 2003. The
said orders dated 05-06-2024 and 06-06-2024 were the subject matter of
challenge before this Court in WP(C). No. 216 and 217 of 2024, which
had been preferred by the MePDCL, MePGCL and MePTCL who have
been arrayed herein as party respondents. The grounds that were taken
was that the said two orders had been passed by the Regulatory
Commission without proper quorum and in violation of Regulation 18(3)
of the Meghalaya State Electricity Regulatory Commission (Conduct of
Business) Regulations, 2007.
2. This Court on taking up the aforementioned two writ petitions vide
order dated 25-06-2024, stayed the orders dated 05-06-2024 and 06-06-
2024, passed by the Regulatory Commission, which was then
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immediately taken on appeal by the Petitioner Association. However
thereafter, on 23-07-2024, these two writ petitions were withdrawn by
the MePDCL, MePGCL and MePTCL with liberty to reagitate the matter
before the Commission. Applications were then accordingly filed by the
MePDCL, MePGCL and MePTCL under Sections 62 and 64 of the
Electricity Act, 2003 before the Commission for rehearing of
applications filed by the three Corporations for fixation of tariff, and for
recall of the orders dated 05-06-2024 and 06-06-2024. Notices were
issued to the parties concerned by the Commission which also came to
be challenged, but however, by order dated 23-08-2024 which is sought
to be interfered with in the instant writ application, the Regulatory
Commission on a finding that a patent error had occurred in issuance of
the orders dated 05-06-2024 and 06-06-2024, withdrew the same and
fixed the matter for rehearing on the fixation of tariff. On these set of
circumstances, the instant writ petition is therefore before this Court.
3. Mr. K.Paul, learned Sr. counsel assisted by Mr. S.Chanda, learned
counsel on behalf of the petitioner has submitted that the respondent
No.1 MSERC, does not possess the inherent power or jurisdiction to
recall an order once passed, and that the Electricity Act, 2003, and the
Regulation does not vest the Commission with the power of recall. It is
submitted that the recall of the orders dated 05-06-2024 and 06-06-2024,
was not a suo moto action on the part of the Commission, but had been
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undertaken on the basis of an application filed by the Electricity
Corporations. The learned Sr. counsel contends that the recall of the
orders was not in exercise of powers arising from the discovery of an
error apparent on the face of the record, or a palpable mistake in the
orders dated 05-06-2024 and 06-06-2024. It is argued that it cannot be a
case of the exercise of inherent powers vested in the Commission as per
Regulation 26 thereof, as this provision does not confer any independent
power of recall to the Commission, and would only operate as a savings
clause to powers that are already provided, or made available to it under
the Act, which he submits, does not arise in the instant matter. It is also
further submitted that Regulation 21, which pertains to the power of
review, mandates that such a review may only be exercised upon
application made by an aggrieved party. In support of this argument, the
learned Sr. counsel has placed reliance in Special Reference No. 1 of
1964 reported in (1965) 1 SCR 413.
4. The learned Sr. counsel has impressed upon this Court, the
contention that the fundamental issue for determination, is whether the
Commission acted without jurisdiction in recalling the orders dated 05-
06-2024 and 06-06-2024, which he submits is not available to the
Commission. The recall of the orders he submits, is wholly without
jurisdiction and in such cases where a Regulatory Body or a Tribunal
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lacks jurisdiction, an appeal as provided by statute would be rendered
nugatory as the Appellate Tribunal for Electricity (APTEL) does not
possess the authority to validate an action which is totally without
jurisdiction. It is further submitted that though it is not disputed that the
Commission is empowered to fix tariffs within the State of Meghalaya,
the power to recall an order however, is not expressly conferred under
the relevant statutory framework. He therefore, submits that the
availability of an appellate remedy under Section 111 of the Electricity
Act does not bar the invocation of the writ jurisdiction of this Court.
Learned Sr. counsel has placed reliance on the case of Whirlpool
Corporation vrs. Registrar of Trade Marks, Mumbai & Ors. reported in
(1998) 8 SCC 1 to further his argument that the existence of alternative
remedy does not operate as an absolute bar to the exercise of powers
under Article 226 of the Constitution.
5. On other points, it has been submitted that the Commission having
exercised its powers under Section 62 and 64 of the Electricity Act, 2003,
with regard to the fixation of tariff, it had become functus officio and had
no further jurisdiction or authority to re-adjudicate or rehear the function
which it had already discharged. The learned Sr. counsel has also sought
to distinguish the facts of the case from the directives contained in order
dated 05-09-2022, passed by the Division Bench of this Court in
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MC(WA). No. 13/2022 arising from WA. No. 33/2022, by submitting
that the said order dealt with the fixation of special tariff and the validity
of termination of an MOU between the petitioner and the respondents
and had nothing to do with a challenge to the jurisdiction of the
Commission. In the instant case, he reiterates the issue is with regard to
jurisdiction of the Commission in recalling the orders dated 05-06-2024
and 06-06-2024. It is also submitted that the petitioner had in the first
instance challenged the jurisdiction of the Commission in passing the
order dated 23-08-2024 before this Court in WP(C). No. 274 of 2024,
wherein this Court by order dated 08-08-2024, had given liberty to the
petitioner to raise the objections including jurisdiction before the
Commission. He lastly submits that the impugned order dated 23-08-
2024, being bad in law and without jurisdiction is liable to be set aside
and quashed.
6. Mr. S.Venkatesh, learned counsel appearing on behalf of the
respondents No. 1 & 2, at the outset has submitted that the impugned
order has been passed in accordance with law i.e. the Electricity Act of
2003 and the Rules and Regulations framed thereunder, whereas the
orders dated 05-06-2024 and 06-06-2024 were not signed as per law in
terms of the Meghalaya State Electricity Regulatory Commission
(Conduct of Business) Regulations, 2007, inasmuch as, it is necessary
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that orders are to be signed by Members who heard the matter. The
Conduct of Business Regulations, it is submitted, at Regulation 10
thereof, which deals with the quorum of the Commission and Regulation
18(3) mandates that all orders of the Commission shall be signed and
dated by the Chairperson and Members hearing the matter and shall not
be altered except to correct any apparent error. In the present case, he
submits, the orders dated 05-06-2024 and 06-06-2024, were signed by a
single Member even though the matter was heard by two Members,
which makes them invalid in view of the operation of the Electricity Act
and the Conduct of Business Regulations.
7. The Commission, he contends, has not exercised sou moto power
but upon the application made by the respondents No. 3, 4 & 5
(MePDCL, MePGCL and MePTCL), but has exercised its inherent
powers under Regulation 111 of the Meghalaya State Regulatory
Commission Multi Year Tariff Regulations, 2014 (MYT Regulation)
2014. Adverting to the facts, learned counsel has submitted that on 31-
07-2024, the respondents No. 3, 4 & 5 had filed an application under
Sections 62 and 64 of the Electricity Act before the Commission seeking
rehearing of earlier petitions filed by the respective utilities for fixation
of tariff and true up and consequently for recall of the orders dated 05-
06-2024 and 06-06-2024 and for passing fresh orders. After notices were
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issued vide notice dated 02-08-2024, the petitioner he submits,
challenged the same by way of WP(C). No. 274 of 2024 before this Court
which was disposed of by order dated 08-08-2024, on the ground that the
notice was not a suo moto action but had been made on the basis of
applications filed by respondents No. 3, 4 & 5. The petitioner he further
submits, had themselves acknowledged this position in view of the order
dated 08-08-2024, and that there is no prohibition in law which restricts
the Commission’s exercise of its inherent powers even on sou moto
basis.
8. The learned counsel has then submitted that Regulation 111 of the
MYT Regulation, 2014 has invested the Commission with such powers
to recall its orders in the interest of justice. The learned counsel has also
refuted the stand of the petitioner that the Greater Noida Industrial
Development Authority vrs. Prabhjit Singh Soni & Anr. reported in
(2024) 6 SCC 767 would have no application on the ground that the
inherent powers granted to the National Company Law Tribunal are
distinct from the inherent powers granted to the respondent Commission
under the MSERC (Conduct of Business) Regulations, 2007. This is
because he contends the Supreme Court while deciding the issue and
holding that the NCLT had powers to recall its order had examined Rule
11 of the NCLT Rules which dealt with inherent powers and that Rule
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11 of the NCLT Rules being akin to Regulation 111 of the MYT
Regulation, 2014, the Greater Noida case would be applicable to the
instant case.
9. On the other contention of the petitioner that neither the Electricity
Act nor the MSERC (Conduct of Business) Regulations, 2007 and MYT
Regulations, 2014 provide that the respondent Commission can recall its
orders, he submits that in the absence of any express position, the
respondent Commission can resort to its inherent powers especially,
considering the fact that the earlier order was non est. In support of this
submission, reliance has been placed upon the case of K.K.Velusamy vrs.
N.Palanisamy (2011) 11 SCC 275 and Durgesh Sharma vrs. Jayshree
(2008) 9 SCC 648. The learned counsel has also placed a judgment
passed by APTEL in Jindal India Thermal Power Limited vrs. Odisha
Electricity Regulatory Commission (2024 SCC Online APTEL 7) and
submits that was held that where one of the Members who demits office
before passing of the final order, it is not permissible for the remaining
Members to sign the order. In this context, the respondent Commission
he submits, had exercised its inherent powers to recall its earlier orders
and that the exercise of determination of tariff/truing up of tariff is to be
done annually in a timely manner as it would otherwise be detrimental to
the utilities and consumers’ interest.
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10. The learned counsel has lastly submitted that the petitioner’s
contention that there is no alternative remedy available by way of appeal,
on the ground that the respondent Commission lacked the jurisdiction to
issue an order of recall is fallacious, inasmuch as, Regulation 111 of the
MYT Regulations, 2014 provides that all orders passed by the State
Commissions are appealable before APTEL.
11. Mr. A.Kumar, learned Advocate General assisted by Ms. S.Laloo,
learned counsel appearing for the respondents No. 3-5, has in his
submissions also supported the arguments and contentions of the learned
counsel for the respondents No. 1 & 2 and has further submitted
Regulation 21 and Regulation 26 of the MSERC (Conduct of Business)
Regulations, 2007 provide for review of the decisions and orders of the
Commission and has also conferred the Commission with inherent
powers. Learned Sr. counsel has also submitted on the aspect of
Regulation 111 of the MYT Regulations, 2014 and has emphasised that
the Regulation has invested the Commission with inherent powers and
further, also clothed it with the discretion that the Commission may deal
with such matters, in a manner it thinks fit in the public interest. It is
further submitted Section 95 of the Electricity Act has also provided that
all proceedings before the appropriate Commission shall be deemed to
be judicial proceedings within the meaning of Sections 193 and 228 of
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the Indian Penal Code and that the Commission be deemed to be a Civil
Court for the purposes of Sections 345 and 346 of the Code of Criminal
Procedure. As such, he submits all proceedings before the Commission
are deemed to be judicial/adjudicatory proceedings and that it is a settled
position of law that the tariff orders are quasi-judicial orders.
12. In the instant case, learned Sr. counsel submits, the recall
proceedings were initiated on the basis of the application of the
respondent, and WP(C). No. 216, 217 and 218 of 2024, were withdrawn
on the basis of the undertaking of the Commission before this Court that
the Commission will look afresh at the matter which was accordingly
done upon the respondent filing the applications. As such, he submits,
the impugned recall order dated 23-08-2024 and subsequent tariff order
dated 24-10-2024 passed by the Commission, cannot be said to be a case
of an action without jurisdiction. It is also submitted that the members of
the Byrnihat Industries Association in gross abuse of the process of law,
have also individually preferred several writ petitions challenging the
aforementioned orders that is, 23-08-2024 and the fixation of tariff order
dated 24-10-2024.
13. Learned Advocate General has then placed before this Court a
series of judgments showing that the order passed by the Commission
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are all appealable under Section 111 of the Electricity Act, 2003, and has
heavily relied upon a judgment of the Division Bench of this Court in
WP(C). No. 515 of 2022, wherein by order dated 16-12-2022, it was held
that APTEL is an efficacious alternative remedy under Section 111 of
the Electricity Act, 2003 and that the writ Court would exercise self-
restraint when statutory remedy is available. The learned Advocate
General has also cited the following cases in support of this argument:
(i) Order dated 31-07-2024, passed in WP(C). No. 191 of 2024
Meghalaya Steels Pvt. Ltd. v. MePDCL.
(2024) 6 SCC 579 – Paras 22 to 28.
(iii) Jaipur Vidyut Vitran Nigam Ltd. & Ors. vs. MB Power
(Madhya Prodesh) Ltd. & Ors. (2024) 8 SCC 513 – Paras
128-133.
14. Learned Advocate General then submits that the impugned recall
order dated 23-08-2024 and subsequent tariff order dated 24-10-2024,
passed by the Commission is not a case of the orders being wholly
without jurisdiction, and contends that the heading of Regulation 26
which states ‘inherent power’ allows the Commission to do any act
which is not part of the Regulation in order to subserve the spirit of the
Act. Section 92 of the Act, he submits, specifically speaks about quorum
and Regulation 10 of the MSRC (Conduct of Business) Regulations,
2007, lays down the requirement of two Members as a valid quorum. The
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orders dated 05-06-2024 and 06-06-2024, he submits, were passed
contrary to the Act and Regulations, inasmuch as, a Chairperson is
necessary and that all who hear must decide, these orders therefore being
without any jurisdiction, were non est and void ad initio. Even otherwise,
it is contended, the exercise of jurisdiction of recall and passing of
subsequent tariff order by the Commission is not an incorrect exercise of
power, in view of the fact that the orders dated 05-06-2024 and 06-06-
2024, suffered from a patent error due to the non-signing of the tariff
order by the Chairperson who heard the tariff proceedings, which is in
contravention of the Electricity Act, 2003, MSERC (Conduct of
Business) Regulations, 2007, as well as settled law by the Supreme Court
and APTEL.
15. Before proceeding further, at this juncture in the considered view
of this Court, it would be expedient to also examine two subsequent writ
petitions which are tagged together with the instant matter i.e. WP(C).
No. 339 of 2024 namely, WP(C). No. 9 of 2025 (M/s Pioneer Carbide
Pvt. Ltd. vrs. MSERC) and WP(C). No. 13 of 2025 (M/s. Shyam Century
Ferrous Ltd. vrs. MSERC) which are common and similar to WP(C). No.
339 of 2024, wherein the submissions of the respective parties have been
recorded. In WP(C). No. 9 of 2025 the same order impugned in WP(C).
No. 339 of 2024, i.e. order dated 23-08-2024 has been assailed and in
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WP(C). No.13 of 2025, the resultant tariff order dated 24-10-2024 has
been impugned.
16. Mr. P.K.Tiwari, learned Sr. counsel assisted by Mr. R.J.Das,
learned counsel for the petitioner has also placed submissions on the
questions of alternative remedy, inherent powers of the Commission, and
in brief they are as follows:
(i) The impugned order dated 23-08-2024 was not made by the
Commission under any provision of the Electricity Act and
hence, no alternative remedy of appeal under Section 111 is
available.
(ii) The order of recall made by the Commission in exercise of
inherent powers is not provided under any provisions of the
Act.
(iii) Though under Section 94(f) of the Act, the Commission has
a power to review its decisions, directions and orders, the
power of review is not power to recall and mentioning of
inherent powers in the heading or title of Regulation 26 of
the MSRC (Conduct of Business) Regulations, 2007, has a
very limited role to play in the construction of Regulation
26, as Regulation 26(1) only declares that nothing in the
Regulation shall prevent the Commission from exercising
its powers under the Act for which provisions have not been
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of the Act. There is no question therefore of exercise of a
non-existent power by the Commission to recall the order
as it is controlled by statute and cannot act beyond the limits
of the statute.
(iv) The Commission thus has no inherent power to recall its
tariff order and to rehear the matter involving determination
of tariff. Hence, the recall order dated 23-08-2024 is without
jurisdiction and is a nullity. As such, the remedy of appeal
under Section 111 of the Electricity Act against an order of
the Commission which has not been passed under any
provision of the Act is not available.
17. Submissions have also been advanced by the learned Sr. counsel
on the scope of writ of certiorari and the rule of exhaustion of alternative
remedy which he submits, that even if alternative remedy of appeal is
available, then the petitioner cannot be denied relief against the
impugned order under certiorari jurisdiction of this Court. Learned Sr.
counsel has referred to the following judgments in support of this
argument.
(i) South Indian Bank Limited & Ors. vrs. Naveen Mathew
Philip & Anr. 2023 SCC OnLine SC 435 (Para 14).
(ii) Hari Vishnu Kamath vrs. Syed Ahmad Ishaque & Ors. ::
(1954) SCC OnLine SC 8 (Para 24, 24.3)
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(iii) T.C.Basappa vrs. T.Nagappa :: 1955 SCR 250.
(iv) State of U.P. vrs. Mohd. Nooh :: AIR 1958 SC 86.
18. On another limb of submission, learned Sr. counsel has submitted
that the petitioners in the instant two writ petitions did not submit itself
to the jurisdiction of the Commission and never participated in a
proceeding which culminated in the impugned order dated 23-08-2024,
by which the earlier tariff order was recalled. According to the learned
Sr. counsel, during the pendency of writ petitions filed by the public
utilities challenging the tariff order passed by a single Member, on the
Commission expressing its readiness to re-examine the matter, the writ
petitions were withdrawn and applications were then filed before the
Commission for recall of the tariff order. The Byrnihat Industries
Association (petitioner in WP(C). No. 339 of 2024) then challenged the
said action on the ground that the Commission had no jurisdiction to hear
the matter suo moto and the writ application being WP(C). No. 274 of
2024, was then disposed of by this Court by allowing the BIA to raise
objections before the Commission. Thus, he submits, it was only the BIA
that appeared before the Commission and raised the issue of inherent lack
of jurisdiction.
19. On the submission of the learned Advocate General that the
petitioners having participated in the proceedings before the Commission
are now estopped from challenging the order on the point of inherent lack
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of jurisdiction, Mr. P.K.Tiwari, learned Sr. counsel has reiterated his
submissions that it was the BIA that raised the question of inherent lack
of jurisdiction before the Commission and the petitioners themselves
never participated in the proceedings which culminated in the impugned
order dated 23-08-2024, by which the earlier tariff order was recalled.
The learned Sr. counsel has also denied the assertion made in the counter
affidavit of the respondents, wherein it has been stated that the petitioners
by their own letters dated 20-12-2024, 23-12-2024 and 24-12-2024,
agreed to make payment in terms of the impugned tariff order and as
such, had waived their rights to challenging it. It is submitted that the
letters were protest letters wherein, the petitioners had pointed out
infirmities in the electricity bill, as to the energy charges being calculated
as per the Commission’s tariff order dated 24-10-2024. It is further
submitted that the allegation in the counter affidavit that the petitioners
had suppressed material facts in not disclosing certain letters dated 18-
01-2025 and 21-01-2025 is incorrect, as the said letters are neither
relevant nor had any material bearing on the merits of this case, inasmuch
as, in the said letters, the petitioners have only sought for copies of the
revised bills after making necessary corrections. He therefore submits,
the allegation of suppression of facts, not being material, would have no
effect on the adjudication of the case.
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20. The learned Sr. counsel has also contended that the doctrine of
resjudicata, or constructive resjudicata, can only be invoked when the
petition filed by the petitioner is either withdrawn or disposed of, and on
the same cause of action, a different petition is filed by the same
petitioner, which is not the situation in the present case, inasmuch as, the
earlier writ petition was filed by BIA, an umbrella of organisation of
which the petitioners are also members. The cause of action, he submits
for the petitioners became complete when the consequential tariff order
dated 24-10-2024, was issued and that the fundamental and legal rights
of the petitioners are different from the rights of the BIA. He further
asserts that there is no legal bar which prohibits the filing of a second
writ petition by a petitioner when the first writ petition on a subsequent
cause of action is pending.
21. The learned Sr. counsel has then stressed upon the requirement of
following the mandate given in the MSERC (Conduct of Business)
Regulations, 2007, and submits that the Regulation which is made under
Section 182 (2) (zl) and Section 92 (1) of the Electricity Act, 2003, does
not provide for any quorum of the Commission for making Regulations
and that Regulation is only made in the meeting of the Commission as
envisaged in Section 92 of the Act. He submits that the heading prefixed
to Section 92 i.e. proceedings of appropriate Commission and the
provisions of Section 92 (1) to (5) are related to meetings of the
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Commission for transaction of business for which Regulation provides
for quorum. The heading, initiation of proceedings prefixed to
Regulation 12, he submits, covers proceedings under Section 94 and 95
of the Act. The expression proceedings used in Section 94 and 95 of the
Act, he submits, has the trappings of a judicial proceeding and are
different from proceedings under Section 92 which only deal with
transaction of business in a meeting of the Commission.
22. Regulation 18 (3) it is then submitted, is linked to the meetings of
the Commission within the meaning of Section 92 of the Act and
provides that, decisions and orders of the Commission shall be signed
and dated, but however, it cannot be construed to mean that if the
Chairperson hearing the matter retires, the hearing by the Chairperson
and Members hearing the matter cannot be completed by the Member
present, or that such Member alone cannot sign the order. Such
interpretation, he argues, would be in violation of Section 93 of the Act
of which Regulation 18 (3) is subject to, and that this Regulation only
underlines the principle that one who decides must hear, or vice versa
and cannot be expanded to mean that all those who hear must collectively
decide. The learned Sr. counsel has again emphasised that Regulation 18
(3) is linked to meetings of the Commission under Section 92 for
transaction of business and cannot be interpreted to mean that it provides
a quorum for the Commission to initiate proceedings under Section 86,
23
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94, 95 etc. and is relatable only to proceedings ‘of the Commission’ and
not to proceedings ‘before the Commission’. Section 93, it is submitted,
is a saving clause and widely worded and it protects proceedings ‘of the
Commission’ as well as proceedings ‘before the Commission’ from
getting invalidated on the ground of vacancy or defect in the constitution
of the Commission. He finally submits that when the Act does not
provide for quorum and only the Regulation under the Act provides the
same, it would mean that there is no requirement of quorum in the
Commission while making Regulations under Section 181 of the Act.
Hence, he submits, quorum is not a mandatory requirement for discharge
of functions of the Commission under Sections 94, 95, 86 and 181 of the
Act.
23. This Court having heard the respective counsels in these three writ
petitions notes that the issues in question is with regard to the jurisdiction
of the Commission to recall its own orders in exercise of its inherent
powers and whether the writ petitions on the availability of alternate
statutory remedy will be maintainable in an application under Article 226
of the Constitution. As noted earlier, the counsels for the petitioners have
contended that the statutory appellate remedy available would not serve
to address the grievances of the petitioners, inasmuch as, the impugned
order of recall dated 23-08-2024 and the subsequent tariff order dated
24-10-2024 are wholly without jurisdiction and patently illegal on the
24
2025:MLHC:463
face of the record. This Court therefore, would examine as to whether
the statutory alternate remedy provided under Section 111 of the
Electricity Act, 2003 would not be efficacious as contended by the
petitioners.
24. Section 111 of the Electricity Act, 2003, has provided for appeal
against orders made by the appropriate Commission, in this case, the
MSERC which is established under Section 82 of this Act, and by powers
conferred by Section 181 (2) (zl) read with Section 92 (1) also the
authority to make Regulations consistent with the Act. The impugned
orders in question revolve around the challenge that the Regulation as
framed under Section 181 (2) (zl) by the Commission, does not
contemplate such action which has been impugned in the current
proceedings i.e. the recall of order dated 05-06-2024 and 06-06-2024.
Further, the next question is that the Commission having exercised its
powers under Section 62 and 64 of the Electricity Act, 2003, and having
fixed the tariff, whether it still possessed the jurisdiction or authority to
re-hear or re-adjudicate the said re-fixation of tariff as has been done by
the Commission.
25. In this context, the relevant provisions of the Electricity Act, 2003,
MSERC (Conduct of Business) Regulations, 2007 and Meghalaya State
Electricity Regulatory Commission (Multi Year Tariff) Regulation, 2014
25
2025:MLHC:463
which will be necessary for this discourse are reproduced herein below
for the sake of convenience:
Section 92. (Proceedings of Appropriate
Commission): – (1) The Appropriate Commission
shall meet at the head office or any other place at
such time as the Chairperson may direct, and shall
observe such rules of procedure in regard to the
transaction of business at its meetings (including the
quorum at its meetings) as it may specify.
(2) The Chairperson, or if he is unable to attend a
meeting of the Appropriate Commission, any other
Member nominated by the Chairperson in this behalf
and, in the absence of such nomination or where
there is no Chairperson, any Member chosen by the
Members present from amongst themselves, shall
preside at the meeting.
(3) All questions which come up before any meeting
of the Appropriate Commission shall be decided by a
majority of votes of the Members present and voting,
and in the event of an equality of votes, the
Chairperson or in his absence, the person presiding
shall have a second or casting vote.
(4) Save as otherwise provided in sub-section (3),
every Member shall have one vote.
(5) All orders and decisions of the Appropriate
Commission shall be authenticated by its Secretary
or any other officer of the Commission duly
authorised by the Chairperson in this behalf.
Section 93. Vacancies, etc., not to invalidate
proceedings.- No act or proceeding of the
Appropriate Commission shall be questioned or shall
be invalidated merely on the ground of existence of
any vacancy or defect in the constitution of the
Appropriate Commission.
26
2025:MLHC:463
Section 111. Appeal to Appellate Tribunal: – (1) Any
person aggrieved by an order made by an
adjudicating officer under this Act (except under
section 127) or an order made by the Appropriate
Commission under this Act may prefer an appeal to
the Appellate Tribunal for Electricity:
Provided that any person appealing against the
order of the adjudicating officer levying any penalty
shall, while filing the appeal, deposit the amount of
such penalty:
Provided further that where in any particular
case, the Appellate Tribunal is of the opinion that the
deposit of such penalty would cause undue hardship
to such person, it may dispense with such deposit
subject to such conditions as it may deem fit to
impose so as to safeguard the realisation of penalty.
(2) Every appeal under sub-section (1) shall be filed
within a period of forty-five days from the date on
which a copy of the order made by the adjudicating
officer or the Appropriate Commission is received by
the aggrieved person and it shall be in such form,
verified in such manner and be accompanied by such
fee as may be prescribed:
Provided that the Appellate Tribunal may
entertain an appeal after the expiry of the said period
of forty-five days if it is satisfied that there was
sufficient cause for not filing it within that period.
(3) On receipt of an appeal under sub-section (1), the
Appellate Tribunal may, after giving the parties to
the appeal an opportunity of being heard, pass such
orders thereon as it thinks fit, confirming, modifying
or setting aside the order appealed against.
(4) The Appellate Tribunal shall send a copy of every
order made by it to the parties to the appeal and to
the concerned adjudicating officer or the
Appropriate Commission, as the case may be.
27
2025:MLHC:463
(5) The appeal filed before the Appellate Tribunal
under sub-section (1) shall be dealt with by it as
expeditiously as possible and endeavour shall be
made by it to dispose of the appeal finally within one
hundred and eighty days from the date of receipt of
the appeal:
Provided that where any appeal could not be
disposed of within the said period of one hundred
and eighty days, the Appellate Tribunal shall record
its reasons in writing for not disposing of the appeal
within the said period.
(6) The Appellate Tribunal may, for the purpose of
examining the legality, propriety or correctness of
any order made by the adjudicating officer or the
Appropriate Commission under this Act, as the case
may be, in relation to any proceeding, on its own
motion or otherwise, call for the records of such
proceedings and make such order in the case as it
thinks fit.
Section 181. (Powers of State Commissions to make
regulations): –
(2) In particular and without prejudice to the
generality of the power contained in sub-section (1),
such regulations may provide for all or any of the
following matters, namely :-
(zl) rules of procedure for transaction of business
under sub-section (1) of section 92.
MSERC (Conduct of Business) Regulations, 2007 –
10. Quorum
Where the Commission has also one Member or more
the quorum of any meeting shall be two including the
Chairperson.
12. Initiation of proceedings
(1) Proceedings shall be initiated on a petition filed
by an affected person before the Commission:
28
2025:MLHC:463
Provided that the Commission may suo moto
initiate a proceeding on a matter that may come to its
notice if it is satisfied that it is necessary to do so in
public interest.
(2) If a petition is admitted, notices shall be issued for
filing of replies by the parties concerned as the
Commission may direct:
Provided that before admission of a petition the
Commission may, if it considers it necessary, direct
that the facts of the subject matter of the petition be
examined or enquired into by an officer or any other
person it deems fit.
(3) The Commission may, if it considers necessary,
order publication of the petition or reply inviting
comments from members of the public on the
substantial issues involved.
18. Decision and orders of the Commission
(1) On completion of a hearing or consideration of a
matter the Commission shall give its decision with
reasons therefor and shall pass orders, including
orders with regard to costs.
(2) The Commission may also pass interim orders as
may be necessary from time to time.
(3) All orders of the Commission shall be signed and
dated by the Chairperson and Members hearing the
matter and shall not be altered except to correct any
apparent error.
(4) In any proceeding the decision taken by the
majority shall be the decision of the Commission and
in case of dissent the dissenting Member shall give
his views separately.
21. Review of the decisions and orders of the
Commission
(1) A person aggrieved by a decision or order of the
Commission from which no appeal is preferred, or is
29
2025:MLHC:463
not allowed to be preferred, can seek a review of the
order if new and important facts which, after the
exercise of due diligence, were not within his
knowledge or could not be produced by him at the
time when the order was passed or on account of
some mistake or error apparent on the face of record
or for any other sufficient reason, by making an
application within 60 days of the date of the order.
(2) The procedure for filing a review application
shall be the same as in case of filing of a petition.
26. Inherent powers of the Commission and
removal of difficulties.
(1) Nothing in these regulations shall be construed
as barring the Commission from exercising its
power under the Act for which provisions have not
been made or have been made inadequately, in
order to subserve the spirit of the Act.
(2) If the Commission is satisfied that there are
genuine difficulties in the implementation of any of
the provisions of these regulations it may relax the
provisions to such extent and subject to such
conditions as it may by reasoned orders decide.
Meghalaya State Electricity Regulatory
Commission (Multi Year Tariff) Regulation, 2014 –
111.1 Nothing in these regulations shall be deemed
to limit or otherwise affect the inherent power of the
Commission to make such orders as may be
necessary for ends of justice to meet or to prevent
abuses of the process of the Commission”.
26. The Commission by the impugned order dated 23-08-2024 had
addressed the multiple issues that had arisen and had taken into
consideration the fact that WP(C). No. 216, 217 and 218 of 2024 were
withdrawn and by order of this Court dated 23-07-2024, allowed the
30
2025:MLHC:463
utilities to reagitate the matter afresh before the Commission. On the
Commission having issued notice for hearing, the petitioner Association
(BIA) had approached this Court on the question of jurisdiction of the
Commission for hearing on suo moto basis by way of WP(C). No. 274
of 2024 which was disposed of by order dated 08-08-2024 granting
liberty to the BIA to raise whatever objections as deemed necessary
before the Commission. As it was clear that it was not on the basis of suo
moto action, the Commission by the impugned order, at para 62 thereof,
had observed and directed as follows:
“62. Based on the submissions made by the parties,
the Judgements of Hon’ble APTEL, various other
Judgements of High Courts and Supreme Courts as
quoted above in regard to the question in matter, and
in line with the provisions of the COB, the
Commission pronounce that
a) A patent error had transpired in issuing the
orders dated 05.06.2024 and 06.06.2024.
b) it is appropriate to withdraw the order dated
05.06.2024 and 06.06.2024 and hear the
matter afresh.
c) The dates of the rehearing shall be announced
through separate notification.”
27. A perusal of the above quoted order shows that the Commission
in passing the impugned order, had invoked its inherent powers in
revisiting and recalling the orders dated 05-06-2024 and 06-06-2024,
which as observed earlier, had been contested by the petitioner to be a
31
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power that the Commission no longer possessed, having once passed the
earlier orders. At this juncture, it would be apposite to refer to the
judgment in the case of Greater Noida Industrial Development
Authority vrs. Prabhjit Singh Soni & Anr. reported in (2024) 6 SCC
767 wherein at paras 37, 47 and 48, the Supreme Court has held as
follows:
37. Per contra, on behalf of the respondents, it was
urged that:
[
(a) the appellant had pressed its case only on the
ground that it was a financial creditor, once this plea
is found unsustainable, no relief can be granted to the
appellant, as commercial wisdom of the CoC is not
justiciable;
(b) NCLT has no power to recall its order of
approval, the remedy for the appellant was to file an
appeal within the time provided by the statute; and
(c) there has been inordinate delay on the part of the
appellant in questioning the order of approval.
47. In Budhia Swain v. Gopinath Deb [Budhia
Swain v. Gopinath Deb, (1999) 4 SCC 396], after
considering a number of decisions, a two-Judge
Bench of this Court observed: (SCC p. 401, para 8)
“8. In our opinion a tribunal or a court may
recall an order earlier made by it if
(i) the proceedings culminating into an order
suffer from the inherent lack of jurisdiction
and such lack of jurisdiction is patent,
(ii) there exists fraud or collusion in obtaining
the judgment,
(iii) there has been a mistake of the court
prejudicing a party, or
32
2025:MLHC:463
(iv) a judgment was rendered in ignorance of
the fact that a necessary party had not been
served at all or had died and the estate was not
represented.
The power to recall a judgment will not be exercised
when the ground for reopening the proceedings or
vacating the judgment was available to be pleaded in
the original action but was not done or where a
proper remedy in some other proceeding such as by
way of appeal or revision was available but was not
availed. The right to seek vacation of a judgment may
be lost by waiver, estoppel or acquiescence.”
48. The law which emerges from the decisions above
is that a tribunal or a court is invested with such
ancillary or incidental powers as may be necessary
to discharge its functions effectively for the purpose
of doing justice between the parties and, in absence
of a statutory prohibition, in an appropriate case, it
can recall its order in exercise of such ancillary or
incidental powers.
28. By applying the analogy of the above noted case, the same will
run true to the facts of the instant case, inasmuch as, the Commission
also has inherent powers under Regulation 26 of the MSERC (Conduct
of Business) Regulations, 2007 and Regulation 111 of the Meghalaya
State Electricity Regulatory Commission (Multi Year Tariff) Regulation,
2014, which have both been quoted earlier, as the said provisions are
similar to Rule 11 of the NCLT Rules. As observed by the Supreme
Court, inherent power can be exercised by a Court or a Tribunal in the
absence of any provision to the contrary, to recall an order to secure the
ends of justice and/or to prevent abuse of the process of the Court.
Similarly, there being no express provisions in the Electricity Act, 2003,
33
2025:MLHC:463
MSERC (Conduct of Business) Regulations, 2007 or the Meghalaya
State Electricity Regulatory Commission (Multi Year Tariff) Regulation,
2014, it therefore cannot be assumed that the Commission in the instant
case, could not have exercised its inherent powers.
29. The other question that deserves consideration is whether the
earlier orders met with the requirements as prescribed by extant law,
considering the fact that both the members who had heard the matter had
not signed the orders. In this regard, reference can be made to orders
passed by APTEL, wherein similar circumstances have arisen, such as in
the case of Global Energy Private Limited vrs. Karnataka Electricity
Regulatory Commission (2016 SCC Online APTEL 118) wherein at
paras 15, 22 – 26, it has been held as follows:
“15. Regulation 31 speaks about orders of the
Commission. It lays down a strict procedure. It is
clear and unambiguous and puts certain restraint on
the Members obviously to secure that all orders of the
Commission meet with the accepted principles
underlying judicial decision-making. Regulation
31(1) states that no Member shall exercise his vote
on a decision unless he was present during all
substantial hearings of the Commission on the
matter. This provision forbids a Member who has not
participated in hearings and not applied his mind to
the issue involved from voting. Regulation 31(2) is
more explicit. It states that the Commission shall pass
orders on the petition in writing and the Members of
the Commission who heard the matter and voted on
the decision will sign the orders. Regulation 31(3)
states that the reasons given by the Commission in
support of the orders, including those by a dissenting
Member shall form part of the order and shall be
34
2025:MLHC:463available for inspection and supply of copies in
accordance with these Regulations. Thus those who
hear the matter have a joint responsibility to
conclude it. Only they can vote on the decision as
having participated in the substantial hearings, it is
obvious that they have applied their mind to the
matter. The Commission has to pass orders in writing
and those who heard the matter and voted on the
decision will sign the orders. Thus the responsibility
to sign the orders is fixed. As per Regulation 31(3),
the orders have to be reasoned orders. The reasons
form part of the order. Regulation 31(3) takes care of
a situation where a Member dissents. In that event the
dissenting Member has to give reasons for his dissent
and these reasons shall form part of the order.
Section 31(3) requires that the reasons given by the
Members shall be available for inspection and supply
of copies in accordance with the said regulations. It
is clear from Regulation 31 that signing of order by
those who heard the matter and voted on the decision
is a must. Even a dissenting Member must give
reasons for his dissent and sign the reasons for the
dissent. They form part of the order. No Member can
avoid the responsibility of signing the order. It is
implicit in Regulation 31 that all those who heard the
matter must be present in the meeting. This is in tune
with the principle that all those who heard the matter
must sign the order. The order may be unanimous or
there may be a dissenting voice. But the requirement
is that all the Members who heard the matter have to
sign the order. The conclusion is that an order which
is not signed by all the Members who heard the
matter will be non est.
22. In our opinion the judgments of the Supreme
Court referred to by us, make it clear that the work of
the Commission which is of a quasi-judicial nature is
one of joint responsibility of all Members. The
Commission as a body should sit together and the
order of the Commission has to be the result of the
joint deliberations of all Members of the Commission
acting in a joint capacity. All Members of the
Commission who heard the matter should sign the
order. If the order is not signed by all Members who35
2025:MLHC:463heard the matter it will be invalid as it will not be
order of the Commission. This is in line with the
fundamental proposition that a person who hears
must decide and divided responsibility is destructive
of the concept of judicial hearing. If a Member
dissents he must give reasons for the dissent and that
shall form part of the order.
23. Thus Section 92 of the said Act, Regulation 31 of
the said Regulations and the judgments of the
Supreme Court which we have referred to, lead us to
conclude that the impugned order is non est and void
as the matter was heard by three Members and order
was signed by two Members. This is against the basic
principle that one who hears the matter should sign
the order.
24. We must also note that all the counsel except the
counsel for the State Commission have supported the
view taken by us though some of them have strongly
urged that on merits the Appellant has no case. In this
regard we clarify that we have not gone into the
merits of the case as the preliminary point raised by
the Appellant goes to the root of the matter. We
therefore leave the contentions of the parties on the
merits of the case open.
25. Before parting we must express our extreme
dissatisfaction about the manner in which the State
Commission has functioned in this matter. It has
ignored the fundamental principle of judicial
decision-making which applies to quasi judicial
bodies as well that one who hears the matter must
sign the order. We are told that the Member who
heard the matter could not sign the order dated
01/09/2016 because he was out of the country from
31/08/2016 to 02/09/2016 (both days inclusive) in
connection with a workshop on ‘Smart Grid’. We are
shocked at this explanation. Writing of a judgment is
a serious matter. Judgments deal with rights and
obligations of parties. In the power sector in most
cases huge stakes are involved and each matter has
commercial implications. But even if a matter does
not involve high stakes all the same it decides rights
36
2025:MLHC:463and obligations of parties. Consumers are affected by
such orders. Ideally workshops held on holidays
should be attended by Members so that the
Commission’s work does not suffer. But it is quite
possible that in a given case the workshop may be of
great significance and may make valuable addition
to the knowledge of the Member. In such a case if the
Member proceeds to attend a workshop signing of
orders must be deferred. Undoubtedly, this Tribunal
had fixed a time limit for deciding the instant matter.
But an appropriate prayer could have been made to
this Tribunal to extend the time limit. Signing of order
is more important than attending a workshop.
26. In the circumstances we set aside the impugned
order. We remit the matter to the State Commission
for a de novo hearing. The State Commission shall
hear the parties afresh and deliver its judgment
independently and in accordance with law. We make
it clear that we have upheld the preliminary objection
raised by the appellant that the matter was heard by
three members and the order was signed only by two
members. We further make it clear that the impugned
order is set aside only on that ground. The appeal is
disposed of in the afore-stated terms.”
30. Similarly, in the case of Jindal India Thermal Power Limited vrs.
Odisha ERC (2024 SCC Online APTEL 7) at paras 15, 17 and 23, it has
been held as follows:
“15. Regulation 20(1) refers to the orders to be
passed by the State Commission and lays down very
strictly that the Chairperson as well as Members of
the Commission who heard the matter, shall sign the
orders. Regulation 20(2) goes further to provide that
the reasons given by the Commission in support of
the orders, including those by a dissenting Member,
shall form part of the order and shall be available for
inspection and supply of copies in accordance with
these Regulation. Therefore, it is mandatory that all
the Members of the Commission who hear the matter
37
2025:MLHC:463shall sign the order thereby concluding the
proceedings of the case before the Commission. Even
the opinion of a dissenting Member shall have to form
part of the final order of the Commission. No member
has the option of avoiding to sign the order. It is must
for all the Members of the Commission who heard the
matter, to sign the order. The order may be
unanimous or there may be a dissenting opinion also
but the requirement is that even the dissenting
Member shall also sign the order. What can be
deduced from the meaningful perusal of Regulation
20 is that Members of the Commission who hear the
case shall sit together and the final order has to be a
result of their joint deliberations acting in a joint
capacity. If, for any reason whatsoever, one of these
Members is not available for the deliberations and
the final order is prepared and signed by only
remaining Members of the Commission, it would not
be valid and proper order of the Commission. Such
an order would be in violation of the legal
proposition enunciated by the Hon’ble Supreme
Court in the case of Gullapalli Nageswara Rao v.
Andhra Pradesh State Road Transport Corporation,
and reiterated in Rasid Javed v. State of U.P. that a
person who hears must decide and the divided
responsibility is destructive of the concept of judicial
hearing.
17. The argument that the opinion of the third
Member in the present case, who retired before the
order could be signed, would not have been material
at all for the reason that the impugned order is signed
by the majority of the Members of the Commission
who had heard the matter, is devoid of any force. It
is for the reason that even the dissenting opinion by
a Member shall have to form part of the final order
of the Commission in view of the above
noted Regulation 20(2) and shall have to be
available for inspection etc. Further, such an order
cannot be treated to be outcome of joint deliberations
of all the Members of the Commission who heard the
matter. It is often seen that Members of a
Commission/Tribunal, come to the joint deliberations
over a matter with their own view which they put
38
2025:MLHC:463forward before the other Members and sometimes
even the majority of the Members having a contrary
view get convinced with the reasoning put forward by
the Member in minority and the minority view
becomes the final order of the Commission/Tribunal.
In the instant case also, the third Member of the
Commission, if consulted during joint deliberations
(had he been still in service at the time of preparation
of order) he may have convinced the remaining two
Members, who have signed the impugned order, to
take a contrary view. This actually is the advantage
of having joint deliberations between the Members of
the Commission at the time of preparing of final
order of the Commission.
23. We clarify and reiterate the legal principle that
where one of the Members of the Commission who
hear a matter, demits office by reason of
superannuation, death etc. before passing of the final
order, it is not permissible for the remaining
Member/Members of the Commission to sign the
order. In such a situation, the matter shall be heard
de novo and final order be passed / signed
accordingly.
31. In the context of the above noted decisions, as can be seen from
the quoted provisions of the Regulations governing the conduct of
business of the Commission, Regulation 10 had provided for a quorum,
but more importantly Regulation 18(3) has categorically provided that
all orders of the Commission shall be signed and dated by the
Chairperson and Members hearing the matter and shall not be altered
except to correct any apparent error. By operation of Regulation 18(3), it
is incumbent therefore, upon the Commission that all the orders have to
be signed by the Chairperson and Members hearing the matter for the
39
2025:MLHC:463
same to be valid. This principle holds true in all judicial or quasi-judicial
proceedings, as is evident from the pronouncements of the Supreme
Court on this aspect, a case in point being the case of Gullapalli
Nageswara Rao & Ors. vrs. Andhra Pradesh State Road Transport
Corporation & Anr. (1958 SCC Online SC 49) wherein at para 31, it has
been held as follows:
“31. The second objection is that while the Act and
the Rules framed thereunder impose a duty on the
State Government to give a personal hearing, the
procedure prescribed by the Rules impose a duty on
the Secretary to hear and the Chief Minister to
decide. This divided responsibility is destructive of
the concept of judicial hearing. Such a procedure
defeats the object of personal hearing. Personal
hearing enables the authority concerned to watch the
demeanour of the witnesses and clear up his doubts
during the course of the arguments, and the party
appearing to persuade the authority by reasoned
argument to accept his point of view. If one person
hears and another decides, then personal hearing
becomes an empty formality. We therefore hold that
the said procedure followed in this case also offends
another basic principle of judicial procedure.”
32. On this same principle, the case of Union of India & Ors. vrs.
Shiv Raj & Ors. (2014) 6 SCC 564, has apart from referring to the above
noted judgment, has at paras 17, 18 and 19 given as follows:
“17. This Court in Gullapalli Nageswara Rao held:
AIR 1959 SC 308 p.327, para 31.
“31. Personal hearing enables the authority
concerned to watch the demeanour of the
witnesses and clear up his doubts during the
course of the arguments, and the party
40
2025:MLHC:463appearing to persuade the authority by
reasoned argument to accept his point of view.
If one person hears and another decides, then
personal hearing becomes an empty formality.
We therefore hold that the said procedure
followed in this case also offends another basic
principle of judicial procedure.”
18. This Court in Rasid Javed v. State of U.P. AIR
2010 SC 2275 following the judgment in Gullapalli
Nageshwara Rao (supra) held that (Rasid Javed case
SCC p. 796, para 51)
“51. a person who hears must decide and
that divided responsibility is destructive of the
concept of judicial hearing is too fundamental
a proposition to be doubted”.
19. A similar view has been reiterated by this
Court in Automotive Tyre Manufacturers Association
v. Designated Authority & Ors., (2011) 2 SCC 258,
wherein this Court dealt with a case wherein the
Designated Authority (DA) under the relevant statute
passed the final order on the material collected by his
predecessor-in-office who had also accorded the
hearing to the parties concerned. This court held that
the order stood vitiated as it offended the basic
principles of natural justice.
33. The earlier orders therefore, suffering from a patent lack of
jurisdiction, considering the procedural errors that occurred i.e. the non-
signing by both Members, the Commission in exercising its inherent
powers to correct these errors or irregularity, cannot be said to be without
jurisdiction, or that once the orders had been passed, the Commission
was estopped from exercising its inherent powers, more so, taking into
account the absence of any express provision barring such exercise of
inherent power. In the case of Budhia Swain & Ors. vrs. Gopinath Deb
41
2025:MLHC:463
& Ors. (1999) 4 SCC 396 at para 8, the Supreme Court has held as
follows:
“8. In our opinion a tribunal or a court may recall
an order earlier made by it if
(i) the proceedings culminating into an
order suffer from the inherent lack of
jurisdiction and such lack of
jurisdiction is patent,
(ii) there exists fraud or collusion in
obtaining the judgment,
(iii) there has been a mistake of the court
prejudicing a party or
(iv) a judgment was rendered in ignorance
of the fact that a necessary party had
not been served at all or had died and
the estate was not represented.
The power to recall a judgment will not be exercised
when the ground for re-opening the proceedings or
vacating the judgment was available to be pleaded in
the original action but was not done or where a
proper remedy in some other proceeding such as by
way of appeal or revision was available but was not
availed. The right to seek vacation of a judgment may
be lost by waiver, estoppel or acquiescence.”
In the instant case, the condition given in para 8 (i) above would
apply.
34. In the case of SREI Infrastructure Finance Limited vrs. Tuff
Drilling Private Limited (2018) 11 SCC 470 at para 24 and 25 thereof,
the powers of the Commission to recall its orders, can also be traced to
the inherent powers of Courts to undertake review when the order suffers
from procedural irregularity.
42
2025:MLHC:463
“24. It is true that power of review has to be
expressly conferred by a statute. This Court in Para
13 has also stated that the word “review” is used in
two distinct senses. This Court further held that when
a review is sought due to a procedural defect, such
power inheres in every tribunal. In Paragraph 13, the
following was observed:-
“13. …. The expression “review” is used in the
two distinct senses, namely, (1) a procedural
review which is either inherent or implied in a
court or Tribunal to set aside a palpably
erroneous order passed under a
misapprehension by it, and (2) a review on
merits when the error sought to be corrected is
one of law and is apparent on the face of the
record. It is in the latter sense that the court in
Patel Narshi Thakershi case (1971) 3 SCC
844, held that no review lies on merits unless a
statute specifically provides for it. Obviously
when a review is sought due to a procedural
defect, the inadvertent error committed by the
Tribunal must be corrected ex debito justitiae
to prevent the abuse of its process, and such
power inheres in every court or Tribunal.”
25. In Kapra Mazdoor Ekta Union Vs. Birla Cotton
Spg. & Wvg. Mills Ltd. (2005) 13 SCC 777, this
Court again held that a quasi-judicial authority is
vested with the power to invoke procedural review. In
Paragraph 19 of the judgment, the following was laid
down:-
“19. Applying these principles it is apparent
that where a court or quasi-judicial authority
having jurisdiction to adjudicate on merit
proceeds to do so, its judgment or order can be
reviewed on merit only if the court or the
quasi-judicial authority is vested with power of
review by express provision or by necessary
implication. The procedural review belongs to
a different category. In such a review, the court
or quasi-judicial authority having jurisdiction
to adjudicate proceeds to do so, but in doing
so commits (sic ascertains whether it has
43
2025:MLHC:463committed) a procedural illegality which goes
to the root of the matter and invalidates the
proceeding itself, and consequently the order
passed therein. Cases where a decision is
rendered by the court or quasi-judicial
authority without notice to the opposite party
or under a mistaken impression that the notice
had been served upon the opposite party, or
where a matter is taken up for hearing and
decision on a date other than the date fixed for
its hearing, are some illustrative cases in
which the power of procedural review may be
invoked. In such a case the party seeking
review or recall of the order does not have to
substantiate the ground that the order passed
suffers from an error apparent on the face of
the record or any other ground which may
justify a review. He has to establish that the
procedure followed by the court or the quasi-
judicial authority suffered from such illegality
that it vitiated the proceeding and invalidated
the order made therein, inasmuch as the
opposite party concerned was not heard for no
fault of his, or that the matter was heard and
decided on a date other than the one fixed for
hearing of the matter which he could not attend
for no fault of his. In such cases, therefore, the
matter has to be reheard in accordance with
law without going into the merit of the order
passed. The order passed is liable to be
recalled and reviewed not because it is found
to be erroneous, but because it was passed in
a proceeding which was itself vitiated by an
error of procedure or mistake which went to
the root of the matter and invalidated the entire
proceeding. In Grindlays Bank Ltd. v. Central
Govt. Industrial Tribunal 1980 Supp SCC 420,
it was held that once it is established that the
respondents were prevented from appearing at
the hearing due to sufficient cause, it followed
that the matter must be reheard and decided
again.”
44
2025:MLHC:463
35. As such, as per the discussions and observations made herein
above, the fact that the earlier orders 05-06-2024 and 06-06-2024, are
incompetent and non est in law having been established, the exercise of
the inherent powers of the Commission therefore, cannot be said to be
without jurisdiction.
36. The submissions of the learned Sr. counsel for the petitioners in
WP(C). No. 9 and 13 of 2025, that Section 92 and 93 of the Electricity
Act, 2003, to which Regulation 18 (3) is subject to, only underlines the
principle that one who decides must hear, and cannot be expanded to
mean that all those who hear must collectively decide, and that further it
cannot be construed to mean that if the Chairperson retires, the hearing
cannot be completed by the Member present, or that such Member alone
cannot sign the order, and that quorum was not a mandatory requirement
for discharge of functions of the Commission, but is only for proceedings
of the Commission under Section 92 and not for the proceedings before
the Commission under Sections 94, 95 etc., these arguments in view of
the prior discussions, cannot be accepted. In this context, it is important
to note that the Commission has been constituted under Section 82 of the
Electricity Act, 2003, which specifically mentions that it consists of a
Chairperson and two Members and the object of Section 93 as can be
clearly understood, is only to provide that vacancy cannot invalidate
proceedings of the Commission, in order to avoid situations where the
45
2025:MLHC:463
Commission is not able to function due to vacancy. Section 93 thus
cannot be read in isolation, as this would militate against the very
purpose of Section 82 of the Electricity Act. It may not be out of place to
add herein, that the Commission as per Section 92 read with Section 181
(2) (zl) can frame its own Regulations for conducting its business which
has been done so in the form of MSERC (Conduct of Business)
Regulations, 2007. Reading these provisions together, the contention that
in view of Section 93, the order passed by the Commission is invalid,
therefore, is rejected.
37. On the issue of quorum and vacancy which has also been
canvassed by the learned Sr. counsel for the petitioner by placing reliance
on an order dated 02-12-2013, passed by a three Member Bench of
APTEL in OP. No. 1 of 2011, to buttress his arguments that Regulations
with regard to quorum cannot be framed against the substantive
provisions of the Electricity Act, 2003, it is to be noted that the directions
contained in the order dated 02-12-2013, passed in OP. No. 1 of 2011,
does not deal with the scenario where final orders were passed by a single
Member even though the proceedings were heard by two or more
Members. Moreover, the issue involved in the instant case is distinct
from the issue involved in OP. No. 1 of 2011, and the MSERC (Conduct
of Business) Regulations, 2007, having clearly provided that all orders
of the Commission should be signed by the Chairperson and Members
46
2025:MLHC:463
hearing the matter, the Commission is thus also bound by its own
Regulations.
38. The legality of the impugned order has been deemed necessary by
this Court to be deliberated and merits of the case discussed, is also to
discern as to whether exceptional circumstances such as, breach of the
principles of natural justice, or lack of jurisdiction exists, or that there is
patent illegality present in the face of the impugned order itself, that
would render statutory alternate remedy nugatory or futile, but as per the
discussions and observations made in this judgment, none exists. As
such, the impugned order will surely be amenable to an appeal under
Section 111 of the Electricity Act, 2003.
39. In the totality of circumstances, therefore, the impugned order
dated 23-08-2024 cannot be held to be illegal and without jurisdiction
and the writ petitioners having recourse to alternate efficacious remedy
under Section 111 of the Electricity Act, 2003, no case has been made
out to warrant any interference under Article 226 of the Constitution of
India and the writ petitions are accordingly dismissed.
Chief Justice (Acting)
Meghalaya
02.06.2025
“Samantha-PS”
Signature Not Verified 47
Digitally signed by
SAMANTHA ANNA LIYA
RYNJAH
Date: 2025.06.02 06:52:29 IST
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