Appellate Tribunal of Electricity

Introduction

The Appellate Tribunal for Electricity (ATE) is a quasi-judicial body in India that plays a crucial role in the electricity regulatory framework of the country. It was established under the provisions of the Electricity Act, of 2003, which aimed to bring about comprehensive reforms in the power sector. The ATE serves as an appellate authority for matters related to electricity disputes and regulatory decisions. The Electricity Act, 2003 notified by the Government of India on June 10, 2003, consolidates laws related to the generation, transmission, distribution, trading, and use of electricity. Its objectives include fostering the development of the electricity industry, promoting competition, safeguarding consumer interests, ensuring electricity supply to all areas, rationalizing tariffs transparently, and encouraging efficient and environmentally friendly policies. The Act establishes institutions such as the Central Electricity Authority, Regulatory Commissions, and the Appellate Tribunal. It applies to the entire country, except for Jammu & Kashmir. Overall, the Appellate Tribunal for Electricity plays a critical role in the regulatory framework of the Indian electricity sector by providing a mechanism for the resolution of disputes, ensuring regulatory compliance, and contributing to the overall development and efficiency of the electricity market.

Historical Evolution

The Appellate Tribunal for Electricity (ATE) in India has its roots in the historical evolution of the country's electricity sector and the regulatory framework. The establishment of the ATE is closely linked to the changes and reforms in the power sector. Here's a brief historical evolution:

1. Pre-Electricity Act, 2003: Before the enactment of the Electricity Act, of 2003, the power sector in India was governed by the Electricity (Supply) Act, 1948. The regulatory landscape was characterized by a lack of competition, inefficiencies, and a need for comprehensive reforms to address emerging challenges.
2. Electricity Act, 2003:The Electricity Act, 2003, marked a significant milestone in the restructuring and reform of the electricity sector in India. Enacted on June 10, 2003, the legislation aimed to promote competition, attract private investment, and improve overall efficiency in the power sector.
3. Creation of Regulatory Commissions: The Electricity Act, of 2003, led to the establishment of regulatory commissions at the central (CERC - Central Electricity Regulatory Commission) and state levels (SERCs - State Electricity Regulatory Commissions). These commissions were tasked with tariff determination, regulation of power purchase agreements, and overall governance of the electricity sector.
4. Need for Appellate Mechanism: With the creation of regulatory commissions, there arose a necessity for an appellate mechanism to address disputes arising from their decisions. As per the salutary observations by Justice Santosh Hegde in West Bengal Electricity Regulatory Commission v. CESC Ltd.On 03/10/2002 regarding the multi-disciplinary expert appellate body, the Appellate Tribunal for Electricity was constituted in the year 2005 to hear appeals against the orders of the adjudicating officer or the Central and State Electricity Regulatory Commissions under the Electricity Act, 2003. The Appellate Tribunal for Electricity (ATE) was envisaged and established as an appellate authority to hear appeals against the orders and decisions of the regulatory commissions.
5. Inception of Appellate Tribunal for Electricity: The ATE was officially established under Section 110 of the Electricity Act, 2003. It became operational to provide a forum for parties dissatisfied with the decisions of regulatory commissions to appeal and seek a fair and independent review of their cases.
6. Role in Adjudicating Appeals: The ATE has since played a crucial role in adjudicating appeals related to electricity matters, including tariff orders, regulatory compliance, and other disputes within the electricity sector. In 2011, APTEL addressed a national crisis caused by distribution utilities not filing tariff petitions, directing State Commissions to annually determine retail supply tariffs. It clarified the independence of State Commissions in tariff matters and ruled that State Government directions were not binding. APTEL also addressed cross-subsidy surcharge during power cuts, stating consumers under open access during outages were not liable to pay the surcharge if no loss occurred to the distribution company. The Tribunal promoted renewable energy by urging State Commissions to enforce Renewable Purchase Obligations (RPO). It clarified the non-binding nature of tariff policy and dismissed appeals challenging trading margins regulations, emphasizing its jurisdiction was limited to the Electricity Act, of 2003. The Supreme Court's Constitution Bench upheld APTEL's judgment

Legislative Framework for Appellate Tribunal for Electricity

Members

• Appointment of Members -Section 78 of the Electricity Act, 2003.  the process for selecting members of the Appellate Tribunal and the Chairperson and Members of the Central Commission in the context of the Electricity Act. A Selection Committee, appointed by the Central Government, includes members such as the Chairperson of the Planning Commission in charge of the energy sector, the Secretary of the Ministry of the Central Government handling the Department of Legal Affairs, the Chairperson of the Public Enterprises Selection Board, and others. The Selection Committee, headed by the Secretary-in-charge of the Ministry dealing with Power, is responsible for recommending candidates to fill vacancies, and it must ensure that the selected individuals do not have any financial or other interests that could adversely affect their functions. The appointment of the Chairperson or other Members is not invalidated by any vacancy in the Selection Committee, except in the case of appointing a person as the Chairperson of the Central Commission who is or has been a Judge of the Supreme Court or the Chief Justice of a High Court.
• Composition - Section 112 of the Electricity Act, 2003 outlines the composition and functioning of the Appellate Tribunal under the Electricity Act, it provides that the Appellate Tribunal shall consist of a Chairperson and three other Members.
• Jurisdiction and Benches: The jurisdiction of the Appellate Tribunal can be exercised by its Benches. A Bench can be constituted by the Chairperson with two or more Members, including at least one Judicial Member and one Technical Member. Benches shall ordinarily sit in Delhi and other places notified by the Central Government in consultation with the Chairperson. The Central Government will specify the areas over which each Bench of the Appellate Tribunal may exercise jurisdiction.
  • PRINCIPAL BENCH AT DELHI - Having jurisdiction to deal with matters arising from the orders of adjudicating Officers/ State Commissions throughout India except Jammu & Kashmir.
  • CIRCUIT BENCH AT CHENNAI - Having jurisdiction over matters arising from the orders of adjudicating Officers/ State Commissions of Andhra Pradesh, Kerala, Karnataka & Tamil Nadu.
  • CIRCUIT BENCH AT MUMBAI: Having jurisdiction over matters arising from the orders of adjudicating Officers/State Commission of Gujarat, & Maharashtra.
  • CIRCUIT BENCH AT KOLKATA: Having jurisdiction of matters arising from the orders of adjudicating Officers/State Commission of Bihar, Chhattisgarh, Jharkhand, Orissa, Sikkim, West Bengal, Arunachal Pradesh, Assam, Meghalaya, Nagaland, Tripura & join Electricity Regulatory Commission for Manipur & Mizoram

• Qualification: The criteria for qualifying for the positions of Chairperson and Members in the Appellate Tribunal are specified. The Chairperson should either currently be or have previously served as a judge in the Supreme Court or Chief Justice in a High Court.
  • Prospective Members must fulfill conditions such as being or having the qualifications to be, a High Court Judge, having a minimum of one-year experience as a Secretary in the Central Government focusing on economic or infrastructure matters, or possessing notable expertise in areas like electricity, regulation, economics, commerce, law, or management. The appointment of the Chairperson is made by the Central Government in consultation with the Chief Justice of India, while Members are appointed by the Central Government based on recommendations from the Selection Committee mentioned in section 78. Before appointments, the Central Government must ensure that individuals selected have no financial or other interests likely to adversely affect their performance in the roles of Chairperson or Member.
  • The Technical Member (Petroleum and Natural Gas) for the Appellate Tribunal is appointed as per section 31 of the Petroleum and Natural Gas Regulatory Board Act, 2006 involves the following criteria:The Technical Member (Petroleum and Natural Gas) is selected from a panel formed by the Search Committee, as per the provisions in subsection (2) of section 4. To qualify for the role of Technical Member (Petroleum and Natural Gas), an individual must meet one of the following criteria:
    • Have served as a Secretary for a minimum of one year in the Ministry or Department of the Central Government, possessing substantial experience in the energy sector, particularly in matters related to the Petroleum and Natural Gas sector. Be a person of notable ability and standing, demonstrating sufficient knowledge or experience in handling issues related to the exploration, production, transmission pipelines, marketing, or regulation of petroleum, petroleum products, or natural gas. This expertise can extend to areas such as economics, commerce, law, or management.
• Tenure: Section 114 of the Electricity Act, 2003 states that both the Chairperson and Members of the Appellate Tribunal will serve in their respective positions for a term of three years from the date they assume office. However, there are provisions for reappointment, allowing the Chairperson or other Member to be eligible for a second term of three years. It's important to note that there are age restrictions for holding office: the Chairperson should not continue beyond the age of seventy, while a Member should not continue beyond the age of sixty-five.
• Terms and Conditions: Section 115 of the Electricity Act, 2003 outlines the remuneration and conditions of service for both the Chairperson and Members of the Appellate Tribunal. The Central Government is empowered to specify the salary, allowances, and other service-related terms. However, a crucial provision ensures that once appointed, neither the salary, allowances, nor any other terms and conditions of service for the Chairperson or a Member of the Appellate Tribunal can be altered to their detriment. This safeguard prevents any unfavorable changes after their appointment.
• Vacancy: In the event of a vacancy in the position of the Chairperson or a Member of the Appellate Tribunal, arising for a reason other than temporary absence, the Central Government is obligated, under Section 116 of the Electricity Act, 2003, to appoint a replacement by the provisions outlined in the Act. This appointed individual will then fill the vacancy, and any ongoing proceedings before the Appellate Tribunal may continue from the stage at which the vacancy is filled.In the event of a vacancy in the position of the Chairperson of the Appellate Tribunal due to death, resignation, or other reasons, the most senior Member of the Tribunal will assume the role temporarily until a new Chairperson is appointed as per section 118 of Electricity Act, 2003. Similarly, if the Chairperson is unable to perform their duties due to reasons like absence or illness, the most senior Member will fulfill the Chairperson's functions until the Chairperson resumes their duties.
• Resignation and Removal: Section 117 of the Electricity Act, 2003, outlines the provisions related to the resignation and removal of the Chairperson or a Member of the Appellate Tribunal:
  • Resignation: The Chairperson or a Member of the Appellate Tribunal has the right to resign by submitting a written notice to the Central Government. However, unless permitted by the Central Government to relinquish office sooner, the Chairperson or Member shall continue in office until three months from the date of receipt of the resignation notice, or until a duly appointed successor assumes office, or until the expiry of the term of office, whichever occurs first.
  • Removal from Office: The Chairperson or a Member of the Appellate Tribunal can only be removed from office through an order by the Central Government. Removal can only be on grounds of proven misbehavior or incapacity, following an inquiry conducted by a judge of the Supreme Court appointed by the Central Government for this purpose. The Chairperson or Member must be informed of the charges against them and given a reasonable opportunity to be heard during the inquiry.

Power and Procedure

Section 120 of the Electricity Act, 2003 delineates the powers and procedures of the Appellate Tribunal. The Appellate Tribunal is not bound by the Code of Civil Procedure, 1908, but follows the principles of natural justice. It has the authority to regulate its procedure. The Appellate Tribunal possesses powers equivalent to a civil court under the Code of Civil Procedure, 1908, concerning various matters, including summoning individuals, requiring document production, accepting evidence on affidavits, requisitioning public records, issuing commissions, reviewing decisions, and more. The orders made by the Appellate Tribunal are executable as a civil court decree, and the Tribunal holds all the powers of a civil court for this purpose. The Appellate Tribunal may transmit its orders to a civil court with local jurisdiction for execution, and the civil court will treat the order as if it were its decree. All proceedings before the Appellate Tribunal are considered judicial proceedings under sections 193 and 228 of the Indian Penal Code. The Appellate Tribunal is deemed a civil court for sections 345 and 346 of the Code of Criminal Procedure, 1973.

Section 121 of the Electricity Act, 2003 states that the Chairperson of the Appellate Tribunal holds the authority of general superintendence and control over the Appropriate Commission. This implies that the Chairperson has oversight and regulatory control, ensuring that the Appropriate Commission operates under the provisions and objectives outlined in the Act. The Tribunal has the authority to exempt parties from complying with any requirement of the rules upon showing sufficient cause. The Tribunal can provide directions in matters of practice and procedure, as it deems just and expedient, based on applications submitted to achieve substantial justice. The Tribunal is empowered to extend the time specified by the rules or set by any order for performing an action or initiating any proceeding. This extension can be granted on terms deemed necessary by the justice of the case. The Tribunal can allow an enlargement of time even if the application for extension is submitted after the expiration of the initially appointed or allowed time. It is also an Appellate Tribunal under Energy Conservation Act, 2001 and the Petroleum and Natural Gas Regulatory Board, 2006

Appeal

Electricity Appeal to Appellate Tribunal

Section 111 of the Electricity Act, 2003 outlines the process for filing an appeal with the Appellate Tribunal for Electricity against orders made by an adjudicating officer or the Appropriate Commission under the Act.

• Right to Appeal: Any person dissatisfied with an order made by an adjudicating officer (except under section 127) or the Appropriate Commission under the Act has the right to appeal to the Appellate Tribunal for Electricity. If the appeal is against a penalty imposed by the adjudicating officer, the appellant must deposit the penalty amount while filing the appeal. However, the Appellate Tribunal, in cases of undue hardship, may waive this deposit or impose conditions.
• Timeframe and Procedure for Appeal: The appeal must be filed within forty-five days from the date the aggrieved person receives a copy of the order. The form, verification, and accompanying fee for the appeal are as prescribed. The Appellate Tribunal may consider an appeal filed after the forty-five-day period if it finds sufficient cause for the delay.
• Adjudication of Appeal: Upon receiving an appeal, the Appellate Tribunal allows parties to be heard and may pass orders confirming, modifying, or setting aside the appealed order.
• Notification of Orders: The Appellate Tribunal sends a copy of every order to the parties involved in the appeal and to the relevant adjudicating officer or the Appropriate Commission.
• Timely Disposition: The Appellate Tribunal is required to handle appeals expeditiously, to dispose of them within one hundred and eighty days. If unable to do so, the Tribunal must provide written reasons for the delay.
• Authority to Examine Orders: The Appellate Tribunal has the authority to review the legality, propriety, or correctness of any order made by an adjudicating officer or the Appropriate Commission. It can call for the records of proceedings and make orders as deemed fit.

Energy Appeal

Section 31 of the Energy Conservation Act, 2001 outlines the process for filing an appeal with the Appellate Tribunal for Energy Conservation. Any individual aggrieved by an order from an adjudicating officer, Central Government, State Government, or another authority under the Act can file an appeal. If the appeal is against a penalty, the appellant must deposit the penalty amount, unless the Tribunal decides otherwise due to undue hardship.

The appeal must be submitted within 45 days of receiving the order, accompanied by the prescribed fee and in the specified form. The Appellate Tribunal, after providing an opportunity for all parties to be heard, can confirm, modify, or set aside the appealed order. The Tribunal sends a copy of its order to the involved parties and the relevant authorities.

The Appellate Tribunal aims to expedite the appeal process, with a target of disposing of appeals within 180 days. If an appeal extends beyond this period, the Tribunal must provide written reasons for the delay. The Tribunal also has the authority to examine the legality and correctness of orders issued by adjudicating officers or government bodies in connection with any proceedings under the Act.

Petroleum and Natural Gas Appeal

Section 33 of The Petroleum and Natural Gas Regulatory Board Act, 2006 outlines that any person dissatisfied with a decision or order made by the Petroleum and Natural Gas Reguation Board under this Act has the right to appeal to the Appellate Tribunal. If the appeal pertains to a penalty, the appellant must deposit the penalty amount. However, the Appellate Tribunal has the discretion to waive this deposit under certain circumstances. The appeal must be filed within thirty days of receiving a copy of the Board's direction or order. The Appellate Tribunal may consider appeals filed after this period if there is sufficient cause for the delay. Upon receiving an appeal, the Appellate Tribunal will provide an opportunity for the parties involved to present their case and will subsequently make appropriate orders. The Appellate Tribunal will send a copy of its order to both the parties involved in the appeal and the Board. The Appellate Tribunal is committed to expeditiously handling appeals, aiming to finalize them within ninety days of receipt. If an appeal takes longer to resolve, the Tribunal will provide written reasons for the delay. The Appellate Tribunal has the authority to review the legality, propriety, or correctness of the Board's order or decision related to the appeal. This may involve examining relevant records and issuing necessary orders.

Further Appeal

Section 125 of the Electricity Act, 2003 outlines the right to appeal against decisions or orders of the Appellate Tribunal. Any individual aggrieved by a decision or order of the Appellate Tribunal has the right to file an appeal to the Supreme Court within sixty days from the date of receiving the communication of the Appellate Tribunal's decision or order. The appeal may be made on one or more grounds specified in section 100 of the Code of Civil Procedure, 1908. The provision includes a proviso stating that the Supreme Court, if satisfied that the appellant had a valid reason for being unable to file the appeal within the stipulated period, may allow the appeal beyond the specified sixty-day timeframe.

Section 37 of The Petroleum and Natural Gas Regulatory Board Act, 2006: An appeal can be filed in the Supreme Court against any order of the Appellate Tribunal, excluding interlocutory orders. The appeal must be based on one or more grounds specified in section 100 of the Code of Civil Procedure, 1908. No appeal is permissible for decisions or orders made by the Appellate Tribunal if such decisions were reached with the consent of all parties involved. The appellant must file the appeal within ninety days from the date of the decision or order in question. However, the Supreme Court has the authority to entertain an appeal even if filed after the prescribed ninety-day period, provided there is sufficient cause justifying the delay.

RULES APPLICABLE

• The Electricity Act, 2003
• Appellate Tribunal for Electricity (Procedure, Form, Fee and Record of Proceedings) Rules, 2007
• The Energy Conservation Act, 2001
• The Appellate Tribunal for Energy Conservation (Procedure, Form, Fee, and Record of Proceedings) Rules, 2012
• The Petroleum Act, of 1934
• The Petroleum and Natural Gas Regulatory Board Act, 2006
• The Constitution of India

Main Website:

The Appellate Tribunal for Electricity has its website . The website has an E-filing portal and E-payment portal

• Cause list: The Causelists are updated on the website. The Causelist contains details like the name of parties, appeal number, counsels, and a brief description of case stage like service completed, etc.

Source - https://cis.aptel.gov.in/aptel/aptelapi/gen_pdf.php?filepath=L2hvbWUvYXB0ZWxlZmlsaW5nX25hcy9hcHRlbC9jYXNlZG9jL2NhdXNlbGlzdC9kZWxoaS8yMDI0LTAxLTExL2JlbmNoLzM5NDMvOTU3Mjk0Y19pX2VfMTFfMDFfMjAyNF9za3MucGRm

• Daily Orders: Orders can be retrieved through DFR No, Case No., Order Date, party name, or old orders
• Judgments: Judgments can be filtered based on year and can be retieved through case number.
• Case Status: Case Statuscan be known either by DFR no./party name/case no/ date wise.
• Disposal report: Statistics relating to disposal rate is not maintained on the website (as on January, 2024)

Research that engages with Appellate Tribunal for Electricity

Amicus Populi? A public interest review of the Appellate Tribunal for Electricity.

Prayas (Energy Group) in its report titled Amicus Populi? A public interest review of the Appellate Tribunal for Electricity highlights various issued marring Appellate Tribunal for Electricity.

• There is a significant drop in the number of cases where small consumers or consumer organizations appeal to APTEL. This raises questions about the accessibility and willingness of small consumers to pursue appeals at the appellate level.
• There is a lack of representation of small consumers' interests before APTEL, especially in cases where decisions by generators, large consumers, and regulated utilities may have a tariff impact on small consumers. This raises questions about the effectiveness of APTEL in safeguarding the interests of the majority of consumers.
• There is no mandate for APTEL to ensure consumer interest representation. The absence of designated consumer advocates and uncertainty regarding the appointment of amicus curiae to represent consumer interests before APTEL are noted as areas that need attention.
• There is lack of public information on important judgments by the Appellate Tribunal for Electricity (APTEL) through an annual publication. It is recommended a compendium featuring significant APTEL judgments with brief commentary, insights, and implications for sector policies and regulatory governance. The Forum of Regulators (FOR) is suggested to spearhead this initiative, employing consultants and forming an advisory panel comprising experts from various stakeholders. The terms of reference and the final report would be determined through public consultation, making the publication a valuable and collaborative resource for stakeholders in the electricity sector. The goal is to enhance transparency, provide educational insights, and contribute to the understanding of legal precedents in the sector.
• Currently, the Ministry of Power is responsible for appointing APTEL members. It would be better if the authority is transferred to the Ministry of Law and Justice, aiming to increase autonomy and reduce potential conflicts of interest associated with the sector-line ministry. As per a Supreme Court judgment from 2014, re-appointments can compromise the independence of tribunals. It is suggested that re-examining and possibly amending the provision in the Electricity Act, 2003, which allows re-appointments for APTEL members. Instead align the term duration of APTEL members with that of Electricity Regulatory Commissions (ERCs), which is five years. This change is aimed at preventing potential influences on decision-making due to the expectation of re-appointment.
• APTEL has been criticized for using suo motu powers sparingly and not taking sufficient steps to address broader issues in the electricity sector. There is a lack of initiatives to ensure meaningful access to electricity, promote competition, and improve regulatory governance.