Key electricity related case to be reheard as judge retires without giving ruling

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New Delhi, June 3 (IANS) The appointment of Justice R.K. Agrawal as the head of the National Consumer Disputes Redressal Commission has left many in the legal fraternity wondering what weighed in his favour as they recall he was part of a bench that reserved judgement in a high-stake power tariff case more than three years ago – and left without pronouncing it.

The bench of Justice Agrawal and Justice J. Chelameswar had reserved judgement on the petition by the discoms BSES Rajdhani and BSES Yamuna that had sought clearing of the outstanding dues of regulatory assets by the government, bridging the gap between the cost of supplying power and the power tariff, and a direction to power generating companies who were seeking payment of their dues by the discoms, not to discontinue the supply of power.

Besides the Delhi Electricity Regulatory Commission (DERC) and Delhi government, power generating companies NTPC, Damodar Valley Corp, Power Grid Corp, THDC, NHPC and the Delhi government’s own power generating companies were respondents in the case.

“What can I say about the judgement not being pronounced,” senior counsel Kapil Sibal told IANS, adding that the case involves the question of regulatory assets, tariff and other issues as well and will now have to be re-heard.

Sibal, who along with P. Chidambaram had appeared for BSES, said the matter now having to be reheard was “unfortunate” as the issues to be decided were weighing heavily on the discoms and their finances.

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Activist lawyer Prashant Bhushan, who described the situation as “very, very unfortunate”, told IANS: “Such things have happened a number of times in the past too. It is very unfortunate if a judge retires without pronouncing the judgement.”

After reserving the orders on the writ petition by the two discoms on February 19, 2015, the bench of Justice Chelameswar and Justice Agrawal said that the civil appeals and contempt petitions relating to the issue would be listed for hearing after the pronouncement of judgement in the writ petitions.

This was said in the order of March 10, 2015, by way of clarification on the February 19, 2015 order reserving the judgement.

The petitions that were to be heard after the pronouncement of judgement included nine civil appeals — one each moved in the years 2010 and 2011 and seven in 2014.

Besides, there were five contempt petitions — one of 1999, three filed in 2014 and one in 2015.

The retirement of Justice Agrawal on May 4 has decisively brought the curtains down on the case till it is re-heard by another bench.

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Justice Chelameswar too is set to leave the top court on June 22. As it is, for Justice Chelameswar, May 18 was the last working day as the top court went into summer recess from May 19 and will resume its regular sittings from July 2.

Could it be an instance of a case escaping the attention of the judges after it was reserved?

Quite unlikely.

After the February 19, 2015 order reserving the judgement, the hearing in one of the five contempt petitions, which was listed 32 times from August 5, 2015 to May 2, 2018, was adjourned awaiting the judgement.

In 2016, the hearing on the contempt plea was listed 11 times from July 4, 2016 to December 14, 2016; 15 times in 2017 from January 10, 2017 to December 14, 2017, and five times this year from January 16, 2018 to May 2, 2018 – the last listing before the bench headed by Justice Agrawal was on May 2, just prior to his retirement on May 4.

Justice Chelameswar had, on August 5, 2015, recused himself from hearing related matters involving the civil and contempt petitions, and from November 15, 2016, one of the contempt pleas was regularly listed before the bench presided over by Justice Agrawal.

From November 15, 2015 till May 2, 2018, it was listed 22 times before Justice Agrawal and, according to the lawyers involved, every time it was directed to be listed on the next date awaiting judgement on the writ petitions by BSES that was reserved on February 19, 2015.

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The significance of the matter on which orders were reserved on February 19, 2015 could be gauged from the list of eminent lawyers who appeared in the case — K.K. Venugopal (the current Attorney General), P. Chidambram, Kapil Sibal, Vikas Singh (current president of the Supreme Court Bar Association), among others.

Besides the senior lawyers, the matter was also argued by advocates Meet Malhotra, M.G. Ramachandran, Kailash Vasudev and S. Wasim Ahmed Qadri.

Justice Agrawal was part of the five judge bench that had reversed the order passed by the bench headed by Justice Chelameswar, who had ordered a hearing by the bench of five seniormost judges into an alleged scam involving a Lucknow-based medical college.

Justice Agrawal headed the bench that had imposed a cost of Rs 25 lakh on the NGO Campaign for Judicial Accountability and Reforms seeking a court-monitored SIT probe into the allegation of corruption for obtaining a favourable order from the top court for the Lucknow-based medical college.

(Parmod Kumar can be contacted at [email protected]

–IANS

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