M.KARPAGA VINAYAGAM, J. - (1.) "Whether the Jharkhand State Commission has got the jurisdiction to entertain the dispute between the Generating Company and the Consumer and determine the Tariff in terms of the PPA entered into between them"
(2.) THIS is the main question which has been raised and argued at length by the Appellant in this Appeal.
(3.) BHARAT Coking Coal Ltd is the Appellant herein. DLF Power Limited is the 1st Respondent. Aggrieved by the Tariff order dated 28.3.2008 passed by the State Commission (R -2), the Appellant has filed this Appeal. The short facts are as under: (a) Bharat Coking Coal Ltd (Appellant), the Consumer and DLF Power Ltd, the Generating Company (1st Respondent) entered into a Power Purchase Agreement on 11.1.1995 for setting up of 2 x 11 MW (Gross) Capacity Power Plant for supply of Power to the Appellant. (b) In terms of the PPA, Bharat Coking Coal Ltd (Appellant), desired the DLF Power Company Limited (Respondent), to develop Coal Washery reject based power plant on "Build, Own and Operate" principle. Subsequently, the capacity of the Power Plant was reduced to 1 x 10 MW by the MoU dated 25.03.1997. In terms of Clause 1.6 of the Power Purchase Agreement, it shall be operative initially for a period of 30 years which may be subsequently renewed for a further period of 20 years on mutually agreed terms and conditions. (c) On 12.6.2005, the DLF Power Limited (R -1), the Generating Company approached the State Commission for fixation of the tariff payable by the Bharat Coking Coal Limited (Appellant) in terms of the PPA, starting from June, 2002. (d) The Appellant (the Consumer) also approached the State Commission on 16.9.2005 and prayed for fixation of the tariff. (e) While these proceedings were pending, similar dispute had arisen out of a similar contract between the Central Coalfields Limited (another subsidiary Company of Coal India Ltd) and the DLF Power (Respondent) regarding tariff fixation in respect of another plant. (f) In that case also both the parties requested the State Commission to fix the tariff. (g) In that case, the Tariff was determined by the State Commission. When this order was challenged by the Central Coalfields Limited in the Tribunal by way of an Appeal in Appeal No.166/2005 on merits, this Tribunal itself suo -moto raised the jurisdiction issue and gave a judgement dated 11.5.2006, holding that the State Commission did not have the jurisdiction to fix the tariff, over the dispute between Generating Company and the Consumer, but the tariff order which had been passed by the State Commission could be construed to be an arbitral award. On that basis, the Appeal was dismissed as not maintainable. (h) This judgement was challenged before the Hon'ble Supreme Court by both the parties by filing two separate Appeals. After hearing the parties, the Hon'ble Supreme Court without going into the jurisdiction issue, passed the interim order appointing the cost accountant wing of Ernst and Young, Chartered Accountants ("E&Y") to determine the capital costs and directing them to report to the Jharkhand State Commission which in turn would fix the fresh tariff and send the report to the Supreme Court for passing final orders in those Appeals. (i) In that background, the State Commission, after obtaining the report from E&Y, passed the Tariff order dated 07.03.2008 and sent the Report along with Tariff Order to Hon'ble Supreme Court. The Hon'ble Supreme Court, without going into the merits, disposed of both the Appeals by directing the Central Coalfields Ltd to challenge the said Tariff order which was passed on the basis of the report of E&Y Chartered Accountant, before this Tribunal for considering the merits of the matter. Accordingly, the Appellant (Central Coalfields Ltd) filed the Appeal No. 83/2009. (j) Then, this Tribunal heard both the parties in the said Appeal and rendered a judgement on 31.07.2009 upholding both the E&Y Report and the tariff order. The said judgement dated 31.07.2009 in the Appeal No.83 of 2009 has been challenged in the Hon'ble Supreme Court and the same is still pending. The above events had taken place during the proceedings in this matter before the State Commission and during the pendency of the present Appeal. (k) In the present case, arising out of the request made by both the parties on 12.6.2005 and 16.9.2005 praying for fixation of tariff, the State Commission by the order dated 21.8.2007 on the strength of the earlier order passed by the Hon'ble Supreme Court in the other Appeals, appointed E&Y to determine the actual capital cost of the Madhuband Power Plant in relation to the present dispute. (l) Accordingly, E&Y submitted its report on 07.03.2008 fixing the capital cost of the Power Plant at Rs.76.22 Crores. On the basis of the said report, the State Commission passed the impugned tariff order on 28.3.2008. (m) Being aggrieved by this impugned tariff order dated 28.3.2008, the Bharat Coking Coal Limited (Appellant) has filed the present Appeal. The Learned Senior Counsel for the Appellant assailing the impugned order , has urged the following contentions: 1. The State Commission has got the jurisdiction to adjudicate the dispute only between the licensee and the Generating Companies as per Section 86 (1) (f) of the Act. The present dispute is essentially a contractual dispute between the consumer and the Generating Company. Therefore, the State Commission has no jurisdiction and as such it cannot adjudicate the dispute relating to the grievance of the individual consumer as against the Generating Company. 2. In the matters relating to pecuniary jurisdiction and territorial jurisdiction, the objection to jurisdiction has to be taken at the earliest possible opportunity. But, this case relates to the jurisdiction over the subject matter. This is totally distinct and it stands on a different footing. As such, the question of jurisdiction can be raised even in the Appeal stage. When the Court has no jurisdiction to deal with the subject matter, the order passed by the Court or Tribunal over the subject matter having no jurisdiction is nullity. Therefore, the Appellant is at liberty to raise the issue of jurisdiction in this Appeal, even though, the jurisdiction point had not been raised before the State Commission. 3. Merely because both the parties consented to the Commission for fixing the tariff, that by itself would not confer jurisdiction to the Commission. 4. While the State Commission appointed the E&Y to determine the capital cost by the order dated 7.3.2008, the Appellant was not informed by the Commission about the same. Thus, the said appointment had been made by the Commission behind the back of the Appellant. ;