APTEL lays down when a ‘Leave to File’ Appeal is not maintainable – rejects GUVNL’s attempt to invoke appellate remedy without participation before Commission

JSA Advocates and Solicitors (JSA) successfully represented Torrent Power Limited (“Torrent”) before Appellate Tribunal for Electricity (“APTEL”) whereby, APTEL dismissed an application seeking ‘Leave to File’ Appeal by Gujarat Urja Vikas Nigam Ltd. (“GUVNL”). Through a Petition before Gujarat Electricity Regulatory Commission (“GERC”), Torrent had prayed that the consumers of private Discoms in Gujarat ought not be discriminated against the consumers of state Discoms with respect to the levy of Short-Term Open Access (“SToA”) charges. GERC had found merit in Torrent’s Petition, and had directed the Gujarat Energy Transmission Corp. (“GETCO”) to refund to Torrent, the excess SToA charges collected from Torrent.

GUVNL, without participating in the proceedings before GERC despite multiple opportunities, had, for the first time, preferred an Appeal against the GERC’s Order. Along with the Appeal, GUVNL preferred an application seeking ‘Leave to File’ Appeal as it was not a party before GERC. JSA, representing Torrent, vehemently opposed the ‘Leave to File’ Appeal by GUVNL. Accepting Torrent’s contentions, APTEL was pleased to dismiss GUVNL’s ‘Leave to File’ Appeal and returned the following key findings: –

• It is only that person who succeeds in demonstrating that he has been affected by the order of the Commission, can seek leave of this Court to assail the said order [Para 18].
• Neither was any relief sought against the GUVNL nor was any direction issued by the Commission to GUVNL in the impugned order [Para 22].
• GUVNL appears to have been aware about the proceedings of the Petition before the Commission but instead of initiating steps for being impleaded in those proceedings, chose to maintain silence. Therefore, having chosen to avoid seeking impleadment before the Commission, GUVNL cannot be heard to raise its non-impleadment as a ground for seeking leave to appeal [Para 25].
• As held by the Hon’ble Supreme Court in H. Anjanappa judgement, it would not be appropriate to grant leave to appeal to every person who may in some remote or indirect way be prejudicially affected by the orders sought to be appealed against. GUVNL would, at best, fall into such category and, therefore, are not entitled to leave to appeal [Para 30].

This Judgment is a landmark, for it sets out the law as to when a ‘Leave to file Appeal’, being a discretionary power of the Court, shall not be exercised, and would act as a precedent on the issue of who shall qualify as an ‘aggrieved’ party to exercise appellate remedy under Section 111 of the Electricity Act, 2003.

JSA Disputes Team comprised Ms. Poonam Verma Sengupta, Lead Partner, and Mr. Saunak Kumar Rajguru, Principal Associate.