LexKERALA STATE ELECTRICITY BOARD LTD. versus JHABUA POWER LIMITED AND OTHERS
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[2024] 9 S.C.R. 971 : 2024 INSC 768 Kerala State Electricity Board Ltd. v. Jhabua Power Limited and Others (Civil Appeal Nos. 10046-10047 of 2024) 30 September 2024 [Dr Dhananjaya Y Chandrachud, CJI, J.B. Pardiwala and Manoj Misra, JJ.] Issue for Consideration Whether the Appellate Tribunal for Electricity (APTEL) was right in passing the impugned judgment holding that the Kerala State Electricity Regulatory Commission (KSERC) was not bound by the directives of the State Government issued under Section 108 of the Electricity Act, 2003 and it exceeded its review jurisdiction under Section 94. Headnotes† Electricity Act, 2003 – s.108 – Scope – State Electricity Regulatory Commissions, if ‘bound’ by the directions issued by State Government u/s.108 – Kerala State Electricity Regulatory Commission (KSERC) allowed the review petition filed by the appellant and approved the Power Supply Agreements in view of the public interest highlighted in the policy directions issued by the State Government u/s.108 holding that KSERC was bound by the directions of the State Government – Order set aside by APTEL by way of the impugned judgment – Correctness: Held: Correct – State regulatory commissions are not ‘bound’ by the directions of the State Government or the Central Government – Under Section 108, the State Commission shall only be ‘guided’ by the directions issued by the State Government and is not automatically bound by them – s.108 does not control the exercise of quasi-judicial power by the State Commissions based on directions issued by the State Government. [Paras 17, 18] Code of Civil Procedure, 1908 – Or. XLVII, r.1 – Electricity Act, 2003 – s.94(f) – Review – Limited scope – Review petitions filed by the appellant against the order of KSERC declining 972 [2024] 9 S.C.R. Digital Supreme Court Reports to grant approval for the Power Supply Agreements (PSAs) were allowed by KSERC and it approved the PSAs in view of the public interest highlighted in the policy directions issued by the State Government – Order set aside by APTEL: Held: An order cannot be made the subject of an appeal under the garb of a review – While reviewing an order, the court or tribunal must be satisfied that there was an error apparent in its previous order, which warrants review – However, while allowing the review petitions, KSERC did not point out any errors in its previous order instead, sole reliance was placed on the subsequent directions of the State Government which highlighted the purported ‘public interest’ that would be served by approving the PSAs – APTEL rightly set aside the order of KSERC on the ground that it exceeded its jurisdiction u/s.94 – Original appeal restored to the file of APTEL. [Para 19] Case Law Cited A.P. TRANSCO v. Sai Renewable Power (P) Ltd. [2010] 8 SCR 636 : (2011) 11 SCC 34 – referred to. List of Acts Electricity Act, 2003; Code of Civil Procedure, 1908. List of Keywords Section 108 of the Electricity Act, 2003; Section 94 of the Electricity Act, 2003; State Electricity Regulatory Commission; Kerala State Electricity Regulatory Commission; APTEL; Competitive bidding process; Tender, Tariff; Bidders; Power Supply Agreements; Power procurement; Distribution licensees; Generating companies; Generators; Public interest; Directions of the State Government/ Central Government; ‘bound’; Mandatory; Quasi-judicial power; Review; Error apparent; Jurisdiction exceeded. Case Arising From CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 10046-10047 of 2024 From the Judgment and Order dated 26.07.2024 of the Appellate Tribunal for Electricity in Apl. No. 38 and 47 of 2024 [2024] 9 S.C.R. 973 Kerala State Electricity Board Ltd. v. Jhabua Power Limited and Others Appearances for Parties V. Giri, Sr. Adv., Prabhas Bajaj, Ms. Rao Vishwaja, Priyanshu Tyagi, Harsh Chauhan, Rahul Narang, Harshed Sunder, Nihar Dharmadhikari, R.K. Nayyar, Advs. for the Appellant. Dr. Abhishek Manu Singhvi, Sajan Poovayya, C. Aryama Sundaram, Sr. Advs., Mrs. Sanjanthi Sajan Poovayya, Matrugupta Mishra, Amit Bhandari, Nipun Dave, Ms. Raksha Agrawal, Harshwardhan Sharma, Ms. Divya Roy, Ms. Swapna Seshadri, Nikunj Dayal, Pramod Dayal, Zafar Inayat, Ms. Harsha Rao, Ms. Aishwarya Subramani, Biju Mattam, Ms. Ankita Bafna, Gaurav Prakash Pathak, Nishant Kumar, Advs. for the Respondents. Judgment / Order of the Supreme Court Judgment 1. These appeals arise from a judgment of the Appellate Tribunal for
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