Paragraph numbers below are the court’s original numbering, recovered from the source text.
17. We have heard Shri C.A. Sundaram, learned senior counsel for the appellant and Shri K.K. Venugopal, learned senior counsel for the respondent.
18. Learned counsel for the appellant submitted that the Tribunal had ignored the implications of Article 3 of the PPA. The true import of the PPA clearly casts an obligation on the EPL to allocate electricity in ratio of300 ~ 215 MW. This interpretation was accepted by the EPL in its letters dated I 71h February, 2000, 41h March, 2000 and 41h October, 200 I. Issues of non payment of money due or not opening the letter of credit and not making advance payment of fuel stood settled by c c Supplementary Agreement dated I 8'h December, 2003 and letter dated 191h December, 2003. Thus, the Tribunal erroneously assumed that amount of Rs.519 crores was outstanding. Moreover, there is an error in the order of the Tribunal in observing that GUVNL had not proved ·suffering of any damage. Para 23 of the petition expressly asserted the damage. There is further error in interpretation. of Schedule VI in regard to the obligation to declare the availability of generating power upon which the dispatch instructions could be.issued. In absence of such declaration, the dispatch instructions could not be issued. Finding that the appellant accepted Rs.64 crores by way of settlement was against record.
19. The EPL supports the view taken by the Tribunal. It is submitted that there was no obligation for proportionate declaration of available generation capacity. The respondent was to meet the . requirement of electric output corresponding to allocated capacity of 300 MW. This obligation was subject to reciprocal performance of obligation by the appellant. The PPA executed by the respondent with the ESL was on different tenns. The appellant was required to make payment on due dates under Article 5.3 of the Agreement and was also required to establish a letter of credit under Article 5.5. As against this, under Article 4.1 of the PPA with the ESL, fuel is to be supplied by the ESL which created an obligation to generate electrical output upto the capacity allocated to the ESL. For supply to the appellant, fuel is required· to be arranged by the respondent. The appellant had not paid cost for its allocated capacity. The cost was pegged at Rs.945 crores as against investment ofRs.2061 crores by the respondent. The stand taken in the letter of the Respondent dated I 7'h February, 2000 could not be read as obligation of the respondent for proportionate generation of the output or declaration of available capacity in absence of compliance of obligations under the PPA by the appellant. In letter dated 41h March, 2000, it was made clear that if letter of credit was not opened by the appellant, respondent will not be obliged to supply power .. Part VII : Points for consideration
20. The points which arise for consideration are : (i) True interpretation of PPA to determine whether there is any obligation to declare availability of power in the ratio of300 : 215; (ii) Effect of letters dated I 7'h February, 2000, 4'h March, 2000 GUJARAT UIUA VIKAS NIGAM LTD. v. ESSAR POWER LlMITED [ADARSH KUMAR GOEL, J.] and 41h October, 200 I on the rights of the parties; (iii) Interpretation of Schedule VI to determine whether the obligation to issue dispatch instructions arose before declaration of availability. (iv) Relief to which the appellant may be entitled to. Part VIII : Decision on above points and reasons therefor Re: (i):
21. It is necessary to refer to the relevant provisions of the Agreement: "Article 3 3.1 Allocation of the Capacity The allocation of the Capacity shall be as under: a) During Open Cycle mode operation prior to commissioning of the Combined Cycle mode operation: l 38MW to the Essar Group of Companies; and 192 MW to the Board b) During Combined Cycle mode: 21 S MW to the Essar Group of Companies; and c 300 MW to the Board . The Company undertakes that, subject to the provisions and during the term of this Agreement, it will fuel and operate the Generating Station to meet the requirements of electrical output that can be generated corresponding to the allocated capacity, in accordance with its Dynamic Parameters so as to comply with the Operating Characteristics except to the extent: (i) as anticipated under the Maintenance Programme during the period of Scheduled Outage. (ii) That to do so would not be in accordance with Good Industry Practice; (iii) That may be necessary due to circumstances relating to Safety (of personnel or plant apparatus); (iv) that to do so would be unlawful; (v) That may be necessary for n:asons of Force Majcure Natural or Non-Natural." c 3.2 Delivery of Active Energy The Company shall deli1;:r Actin: E11.::rgy and Reactive Energy to the Board at the Delivery Point in accordance with Disp11tch Instructions issued by the Board under the Dispatch procedures as specified in Schedule VI. All Active Energy delivered by the Company shall have at the D.::livery Point, the voltage, frequency and the other electrical param<:ters •:~sociated with active/reactive power as may be decided by the Board in accordance with the Operating Characteristics. 3.3 Availability Decla.·atior •. , From the date of Entry into Commercial Service of the first Unit the Company shall, sub;;1it to the Board from time to time, Declared Available Generation Capacity as.µcr tfr;: pwcedures set forth in Schedule VI. xxx Schedule VI 6.1 Submission of Weekly Schedules The Company will submit to the Board's Load Dispatch Centre at Jambua, Baroda weekly schedules indicating the times and Capacity which will be available from Generating Station and if not available and reasons therefor. These weekly schedules will be submitted on or before each Friday for the next week starting from Monday. If at any time after the issue of such schedule, there is any change in circumstances, the Company will notify the Board about the revisions necessary in the weekly schedule and the reasons therefor. 6.2 Issuance of Requirement Schedule The Board shall issue to the Company's Generating Station at Hazira a Schedule of its requirement with respect to the generation of the Allocated Capacity by the Generating Station during each day by 5.00 PM on the preceding day. This schedule will indicate the level of Active Power required to be produced by Generating GUJARAT URJA YIKAS NIGAM LTD. v. ESSAR POWER LIMITED [ADARSH KUMAR GOEL, J.] Station. 6.3 Issuance of Dispatch Schedule The Board may issue Dispatch Instruction at any time after issue of the schedule as mentioned in Clause 6.2 above. Dispatch instruction may include requirements in respect of the reactive power output measured at the Delivery Point to be maintained by the Generating Station. 6.4 Operation of Generating Station The Company, subject to the provisions contained in Article 3.3 of this Agreement, shall operate Generating Station in accordance with the relevant Dispatch Instructions given by the Board from time to time provided that the Company shall not be obliged to comply with such instructions to the extent that it would require the Company to operate the Generating Station otherwise than the Dynamic Parameters applicable from time to time. Schedule VII 7.1 TARIFF The Tariff shall be determined as follows a) Annual Fixed Charges to be determined in terms of Section 7.1.1 b) Variable Charges to be determined in terms of Section 7.2 c) Incentive Payment to be determined in terms of Section 7.3. 7.1.1 Annual Fixed Charges: Computation and payment The Annual Fixed Charge shall be computed on the following basis: a) Interest on Debt: It shall be computed on the Debt as per the Financial Plan approved c by the Board. Interest on Debt shall also include lease rentals payable in respect of lease assistance obtained by the Company towards financing the Capital Cost. If the Financing Plan envisages variable rates of interest on any component of Debt, the Interest on Debt shall be recomputed by c applying the prevailing rates of interest during the month on each such Debt. In respect of interest on Foreign Debt, the interest liability on the applicable Foreign Debt shall first be cofl}pUted in the applicable foreign currencies and thereafter be converted to Rupees by adopting the Base Exchange Rate and such amount shall be adopted for the purposes of computing Interest on Debt. A Supplementary Invoice shall be raised for an amount equal to the difference between the amount of interest liability on Foreign Debt as determined on the basis of Base Exchange Rate and the amount of interest liability as on the due dates of the payment of interest as per the Financing Plan computed on the basis of the then prevailing exchange rate. If the amount payable to the Company is determined to be less, on account of foreign exchange variation, than the amount paid by the Board at the Base Exchange Rate, such difference shall be repaid to the Board within 14 days from the date of the determination. b) Operation and Maintenance Expenses (O&M) Expenses: O&M Expenses including Insurance Charges for the first full Accounting Year, after commissioning of Combined Cycle Operation of the Generating Station, shall be calculated at the rate of 2.5% of the Capital Cost of Rs.945 crores in respect of the Allocated Capacity. The expenditure on the O&M expense in each subsequent year shall be revised on the basis of the weighted Price Index based on the Wholesale Price Index and Consumer Price Index in the ratio of 70:30 respectively or at the rate of 10% progressively every year, whichever is lower. O&M expenses shall not qualify for foreign exchange variations. c) Depreciation Depreciation will mean the depreciation as notified by the Government of India from time to time and provided under the Electricity (Supply) Act, 1948 and shall be first computed on the assets of the Generating Station and thereafter apportioned for the purposes of the determining the Annual Fixed Charges as a GUJARAT URJA VIKAS NIGAM LTD. v. ESSAR POWER LIMITED [ADARSH KUMAR GOEL, J.] proportion of the Allocated Capacity over the Nominal Installed Capacity. d) Tax on Income: Tax on Income shall be determined in accordance with the provisions of the Income Tax Act, 1961 every year as under: Tax payable by the Company , Return on Equity plus Total taxable Income Incentive Payment For the purposes of determination of the Annual Fixed Charges, the Tax on Income shall be computed on an estimated basis. Any under or over recovery of Tax on Income shall be adjusted every year on the basis of certificate of documentation of Tax paid and assessment by the Income Tax Officer concerned. e) Return on Equity (ROE): Return on Equity shall be computed on Equity at 16% per annum and shall include ROFE. Return on Foreign Equity (ROFE) shall be computed at the rate of 16% on the amount of Foreign Equity in the applicable foreign currency and thereafter be converted to Rupees at the Base Exchange Rate and such amount shal I be adopted for the purpose of computing ROFE. A Supplementary Invoice shall be raised at the end of each Quarter in an Accounting Year, for an amount equal to the difference between the amount of ROFE determined on the basis of Base Exchange Rate and the amount of ROFE as at the end of each Quarter computed on the basis of the then prevailing exchange rate. If the amount payable to the Company is determined to be less, on account of foreign exchange variation than the amount paid by the Board at the Base Exchange Rate, such difference shall be re-paid to the Board within 14 days from the date of the determination. f)lnterest on Working Capital : The amount of working capital on the Allocated Capacity shall be computed on the basis of annual estimated level of generation adopting the following norms: c i) Fuel Cost for liquid fuels only for one month; ii) Operation & Maintenance expenses (Cash) for one month; iii) Maintenance Spares at actual but not exceeding one year's requirement, less value of One Fifth of initial spares already capitalized; and iv) Receivable equivalent to two months' average billing for sale of electricity. The Interest on Working Capital shall be computed by applying the rate of interest as applied by the Company's bankers or the Board's Bankers whichever is lower on the amount of working capital computed above. g) Base Foreign Debt Repayment Adjustment Amount: In respect of the Foreign Debt, the amounts falling due for repayment during the Accounting Year shall be first computed in the applicable foreign currencies and thereafter be converted to Rupees by adopting the Base Exchange Rate. The difference between the amounts of repayment determined as above and the amount of repayment of Foreign Debt falling due during the relevant Accounting Year and expressed in rupees adopting the exchange rate as per the Financing Plan shall be included in the Annual Fixed Charges. A Supplementary Invoice shall be raised for an amount equal to the difference between the amount ofrepayment on Foreign Debt determined on the basis of Base Exchange Rate and the amount of repayment on Foreign Debt as on the due dates of repayment of Foreign Debt as per Financing Plan on the then prevailing exchange rates. If the amount payable to the Company is determined to be less on account of foreign exchange variation than the amount paid by the Board at the Base Exchange Rate, such difference shall be re-paid to the Board within 14 days from the date of the determination. The amount of Annual Fixed Charges for the purposes of this Agreement shall the aggregate of (a) to (g), but excluding the amounts of supplementary Invoices under (a), (e) and (g) above. For the purpose of monthly Invoice l I I 21h of the Annual Fixed GUJARAT URJA VIKAS NIGAM LTD. v. ESSAR POWER LIMITED [ADARSH KUMAR GOEL, J.] Charges will be claimed. The Invoice in each month shall further specify the number of units of Active Energy and Deemed Generation expressed in K wh achieved during such month and the cumulative Level of Generation including Deemed Generation less Deemed Non- Generation achieved upto end of such month.
22. The agreement clearly contemplates the proportion of allocation of a capacity. The EPL has to fuel and operate the generating station to meet the requirement of electric output that can be generated corresponding to the allocated capacity. The appellant has to pay annual fixed cost as determined in terms of clause 7.1. I of Schedule VII of the Agreement. The Commission is thus, right in observing that once the entire capacity has been allocated in two parts in a particular proportion, the contention of the EPL that it could sell power to ESL beyond the allocated capacity could not be accepted. The EPL was under obligation as per Schedule VI to declare weekly schedule of the capacity available and the dispatch instructions were to be issued on the basis of the said declaration. It could not thus be said that the EPL had no obligation to declare the capacity and the obligation of GUVNL to issue dispatch instructions was not dependent on declaration of the available capacity by the EPL. Contrary view of the Tribunal is clearly erroneous. In paras 45 and 46 and elsewhere in its judgment, the Tribunal erred in holding that there was no obligation to declare available capacity on proportionate basis. The finding of the Commission in paras 9.5 to 9.12 of its order quoted above is the correct interpretation of the Agreement. We hold accordingly. Re: (ii):
23. The Commission in this aspect observed: "8.4 In the present case, the PPA was executed on 30.5.1996 and remains operational for a period of twenty years. Under the terms c of the PPA, the generating company i.e. EPL is required to declare availability and supply of electricity forthe entire duration of the PPA, while the Petitioner GUVNL has an obligation to purchase electricity and pay the tariff in terms thereof. The dispute appears to have arisen sometime in I 998-99, when the CAG Report for the year 1998-99 rejected the contention of the Government that c there was no adverse financial impact as a result of diversion of power. Thereafter, on or around I 0.2.2000, a meeting was conducted with the GEB to discuss the issue of diversion. On 17.2.2000, EPL subject to certain conditions accepted that power is required to be supplied on a 58:42 basis. Attempts were made to renegotiate the PPA. By a letter dated 23.4.2002, GEB wrote to EPL identifying certain key areas for negotiation of PPA. The issue of allocation of power was also part of the agenda. Since the issue of allocation of power could not be settled, GEB by its letter dated 29.10.2003 raised a claim of Rs. 537 crores for the period I. 7. 1996 to 31.3 .1999. EPL by its letters dated I. 11.2003 and I. 12.2003 denied the claim ofGUVNL. xxxx 9.10 Furthennore, in the letter dateci 17.02.2000, EPL categorically agreed to the concept that power should be supplied in the ratio of 58:42 provided certain conditions are fulfilled. The conditions mentioned in the said letter will demonstrate thatthe each condition is either in the nature of additional concessions I modification that were sought by EPL or alleged defaults on the part of GUVNL, which was not agreed to by GUVNL."
24. It is clear from the above that the letters of the respondent acknowledged its liability to allocate the generated power to the appellant and to the ESL in the ratio of 58 : 42. The Tribunal in para 54 quoted above, held thatthe said letters could not be relied upon in suppo11 of the claim that the appellant was entitled to be allocated generated power in proportion of 58 : 42. This finding is clearly erroneous and is without any basis and is liable to be set aside. The finding of the Commission is based on record. Re :(iii):
25. In interpreting Schedule VI, the Commission held that the EPL was liable to declare weekly capacity available and on that basis dispatch instructions were required to be issued (para 9 .6). The contrary view taken by the Tribunal in para 45 and elsewhere is clearly contrary to the agreement between the parties as reflected in Schedule VI quoted above. GUJARAT URJA VIKAS NIGAM LTD. v. ESSAR POWER LIMITED [ADARSH KUMAR GOEL, J.] Re: (iv):
26. The main basis of the order of the Tribunal in rejecting the claim of the appellant is the finding that the respondent had no obligation to allocate available power in the ratio of58: 42 under the terms of the Agreement and in terms of correspondence between the parties. Apart from this, the Tribunal held that the appellant had claimed Rs.64 crores by way of full and final settlement (para 55) and that the appellant was in default in not opening letter of credit and not paying Rs.519 crores. In doing so, the Tribunal has ignored clear stipulation in the letter of the appellant dated J3•h December, 2004 referred to in para 8.14 of the Commission that the amount of Rs.64 crores was not accepted by way of final se~lement. Similarly, the Tribunal has ignored the supplementary agreement between the parties dated l 8'h December, 2003 followed by letter dated 191h December, 2003 (page 337 and 341,Vol.V) under which amount of Rs.289.40 crores was paid to the respondent by way of settlement for the delayed payment charges and other heads. Thus, the Tribunal was not justified in observing in para 75 that the appellant had defaulted in making payment of Rs.519 crores which was a breach of promise on the part of the appellant, thereby absolving the respondent of its obligation to supply power as per the agreement. Similar is the position with regard to letter of credit referred in para 17 .6 of the order of the Tribunal. We have been informed that these aspects have been gone into by the State Commission in a subsequent dispute vide order dated 22"d October, 2014 and Appeal No.2of2015 against the said order before the Tribunal. We thus, make it clear that our observations may not be treated as affecting the decision ofthe said appeal.
27. We thus, hold that the order of the Tribunal is erroneous. The said order has given rise to the substantial question of law which has been discussed above, i.e., the interpretation of the Agreement between the parties and the obligation of the respondent to declare availability of generated power in the ratio of 58 : 42 and consequence of default therein. The Tribunal erroneously held that there was no pleading for making the claim. Thus, the Tribunal has committed error of law as well as of record in recording its finding as demonstrated above. It may also be noted that the Commission has left actual working out of the loss to be worked out separately and on that basis the appellant has already filed its claim which was pending consideration before the Commission. The said proceeding can now be revived in the light of our finding. c (2016] 5 S.C.R.
28. Accordingly, we allow this appeal, set aside the order of the c Tribunal and restore that of the Commission. An Epilogue
29. Before we part with this judgment, it appears to be necessary to draw attention of all concerned to a vital issue of composition and functioning of Tribunals and statutory framework thereof especially its impact on working of this Court and in turn on the rule of law.
30. It is well known that in the wake of 42°d Amendment to the Constitution of India, incorporating Article 323A and 323 B of the Constitution under Part XIVA, various Tribunals have been set up. The Tribunals constitute alternative institutional mechanism for dispute resolution. The declared objective of such Tribunals is inability of the existing system of courts to cope up with the volume of work. This Court has gone into the question of validity of scheme under which the High Court is bypassed without the alternative institutional mechanism being equally effective for the access to justice which was necessary component of rule oflaw and this Court being over burdened with routine matters in several judgments to which reference may be made. JI. In L Chandra Kumar Vs. Union of India 1, in the course of considering the constitutional validity of exclusion of jurisdiction of the High Courts in service matters against the orders of the Central Administrative Tribunal, this Court observed that the manner in which justice is dispensed with by the Tribunals left much to be desired. The remedy of appeal to this Court from the order of the Tribunals was too costly and inaccessible for it to be real and effective. Furthermore, the result of providing such remedy was that the docket of this Court was crowded with decisions of the Tribunals and this Court was forced to perform the role of a first appellate c.ourt. It was necessary that High Courts are able to exercise judicial superintendence over decisions of the Tribunals. With these observations th is Court directed that "all" decisions of the Tribunals will be subject to High Court's writ jurisdiction under Article 226/2272• It was further observed that the then existing position of direct appeal to this Court from orders ofTribunal will stand modified3• 1 (1997) 3 sec 261 'Para 91 'Para 92 GUJARAT URJA VIKAS NIGAM LTD. v. ESSAR POWER LIMITED [ADARSH KUMAR GOEL, J.) 32. In Madras Bar Association Vs. Union of India', the issue considered by this Court was validity of setting up of National Tax Tribunals under the National Tax Tribunal Act, 2005. While striking down the Act, this Court commented upon validity of various provisions of the said Act. Section 5 of the Act which provided for sittings to be at Delhi, it was observed that a litigant who may belong to a distant/remote State, may have to travel a long distance and may find it difficult to identify an advocate who will represent him. It was further observed that while vesting jurisdiction in an alternative court/Tribunal, it was imperative for the legislature to ensure that redress should be available with the same convenience and expediency as it was prior to the introduction of the newly created court/tribunal5. As regards Section 6 dealing with the qualification for appointment of a member, it was observed that it was difficult to appreciate how non judicial members could handle complicated questions of law which the Tribunal was required to deal with6 • Further, composition of tribunals which were like courts of first instance whose decisions are amenable to challenge under Article 226/227 and which are subservient to jurisdiction of the High Court stood on a different footing from the Tribunals whose appeals were directly provided to Supreme Court. Such Tribunals were practically substitute for the High Courts. Process of selection and appointment of Chairperson and members of such Tribunals could not be different from the manner of selection of the High Court Judges7• 33. The above resume oflaw laid down by this Court may call for review of composition of Tribunals under the Electricity Act or other corresponding statutes. Appeals to this Court on question of law or substantial question oflaw show that Tribunals deal with such questions or substantial questions. Direct appeals to this Court has the result of denial of access to the High Court. Such Tribunals thus become substitute for High Courts without manner of appointment to such Tribunals being the same as the mannerofappointment of High Court Judges. A perusal of Sections I 13(b)(i) to (iii) and 113(3) read with Section 78, Sections 84, 85 and I 25 of the Electricity Act and corresponding provisions of similar Acts may, thus, need a fresh look. 34. It may also be noted that in some Tribunals (For example, the '(2014) 10 sec 1 ' Para 123 6 Para 126 7 Para 130 c c tribunal constituted under the Telecom Regulatory Authority of India Act, 1997), the Tribunal exercises original jurisdiction to the exclusion of all courts and is located only at Delhi8• It may further be noted that nonnally tenure of office of the Chainnan and members is of short duration of three to five years. Access to justice may not be, thus, available with the convenience with which it is available when jurisdiction is with the local civil courts sought to be substituted. Such provisions may need review in larger public interest and for providing access to justice. 35. Apart from the above aspect, further question is wheth~r providing appeals to this Court in routine, without there being issues of general public importance, is not a serious obstruction to the effective working of this Court. 36. This issue has already been subject matter of debate. In an Article by Shri T.R. Andhyarujina former Solicitor General oflndia, titled "Restoring the Character and Stature of the Supreme Court of India9" learned author states that it was necessary to restore the character and stature of the Supreme Court. The jurisdiction of the Supreme Court should by and large be limited to matters of constitutional importance and matters involving substantial questions of Jaw of general importance. The Supreme Court oflndia, like apex Courts in other jurisdictions, was not to be a final court to decide ordinary disputes between parties. The highest court has its unique assigned role. But after the year 1990, the Supreme Court is losing its original character and becoming a general court of appeal by entertaining and deciding cases which do not involve important constitutional issues or issues of law of national importance. The adverse effect of this trend is that matters of constitutional importance are not getting the due priority and are pending for several years. Reference has been made to the Statement of Objects for amending the Supreme Court (Number of Judges) Act, 1956 in the year 2008, to the effect that "it has not been possible for the Chief Justice of India to constitute a five-judge Bench on a regular basis to hearthe cases involving interpretation of constitutional Jaw as doing that would result in constitution ofless number of Division Benches which in turn would result in delay in hearing of other civil and criminal cases". In spite of the said amendment to increase strength of judges to 31, larger Benches to decide constitutional and important cases have not been regularly functioning. ' Sections 14 and 15 '(2013) 9 sec (J) 43 GUJARAT URJA VIKAS NIGAM LTD. v. ESSAR POWER LIMITED [ADARSH KUMAR GOEL, J.] On account of increase in number of issues other than constitutional law or substantial questions of general importance, all the Benches are engaged in handling the heavy routine work. The court rooms are so crowded that it is hardly possible to enter a court room or to pass through the corridors. "No other Supreme Court presents such an undignified sight." Further reference has been made to functioning of other Supreme/ highest courts in the world to emphasize that the highest courts are engaged in deciding cases of national importance by larger benches of 9/11 judges while the Supreme Court of India is deciding most of the cases by Benches of two-judges, which has its own adverse implications. Reference has also been made to the discussion between Sir B.N. Rau, the Constitutional Advisor and Justice Frankfurter of the U.S. Supreme Court that the jurisdiction exercisable by the Supreme Court should be exercised by Full Court. It is further stated that the highest court should have limited number of cases and should not be overloaded. On an average, in a year 80 cases are decided by Supreme Court of U.K., the Canadian Supreme Court and the Australian High Court. 38 cases are decided by Constitutional Court of South Africa in a year. Supreme Court of India is deciding large number of cases and the reports in the cases sometimes run upto 19 volumes in a year with only a few cases of real constitutional or of national importance. In Australia there is no appeal to the highest court as of right and the cases are entertained only if they are of public importance. They are to resolve difference of opinion in different courts. This was necessary to preserve efficiency and standing. Reference is also made to the expert opinion that no litigant should get more than two chances in litigation. It is further stated that "The Supreme Court of India must cease to be a mere court of appeal to I itigants and a daily mentor of the Government, if it is to preserve its pristine character, dignity and stature comparable to the Supreme Court in other jurisdictions." The Article ends with observation "This requires a national debate by Judges, Lawyers, jurists and informed public." 37. In Matltai alias Joby Vs. George 10, this Court referred to the R.K. Jain Memorial Lecture delivered on 30' 11 January, 20 I 0 by Shri K.K. Venugopal, senior advocate to the effect that "an alarming state of affairs has developed in this Court because this Court has gradually converted itself into a mere court of appeal which has sought to correct "'(20JO) 4 sec 358 c c every error which it finds in the judgments of the High Courts of the country as well as the vast number oftribunals 11 • The court has strayed from its original character as a constitutional court and the apex court of the country. Failure to hear and dispose of cases within reasonable time erode confidence of the litigants in the apex court. Reference was made to an Article by Justice K.K. Mathew to the effect that time, attention and energy should be devoted to matters oflarger public concern. Functioning of Supreme Court was not to remedy a particular litigant's wrong, but consideration of cases involving principles of wide public or governmental interest which ought to be authoritatively declared by the final court. The docket of the court shou Id be kept down so that its volume did not preclude wise adjudication. The matter was referred for consideration of the larger Bench for interpretation of Article 136. By the time, the matter came up for consideration of the larger Bench on l J 1h January, 2016, the SLP became infructuous as the suit in which the impugned interim order was passed itself had been decided. This Court while dismissing the SLP as infructuous observed that while Article 136 could be used with circumspection but its scope could not be limited. 38. In Biflar Legal Support Society Vs. Chief Justice of lmlia11, it was observed that Supreme Court was not a regular court of appeal. If an additional forum above the Tribunal was required to be set up, a separate national court of appeal could be created. In this respect, the matter was also considered in 2291h Report of the Law Commission submitted in August, 2009. However, that is a different issue particularly when this aspect is being separately considered by a different Bench in Writ Petition (C) No.36 of2016 titled V. Vasanthakumar Vs. Sri H.C. Bhatia. 39. In Justice H.R. Khanna Memorial Lecture delivered on 81h September, 2014 by Hon'ble Mr. Justice J. Chelameswar of this Court, the topic was "the Supreme Court oflndia, its jurisdiction and problem of arrears" 13 • It was stated that : "The law declared by the Supreme Court in Hindustan Commercial Bank Ltd. v. Bhagwan Dass [AIR 1965 SC 1142} was that normally a party should approach the Supreme Court with a certificate of the High Court. Only in exceptional circumstances would the Supreme Court relax that requirement, 11 Para 15 " ( 1986) 4 sec 767 " (201 si 9 sec (J-1) GUJARAT URJA VIKAS NIGAM LTD. v. ESSAR POWER LIMITED [ADARSH KUMAR GOEL, J.] is simply ignored. The exception has become the rule now. The result is more and more unsuccessful people getting encouraged to have another go at it by approaching the Supreme Court. In most of the cases, what is sought is a simple second or third .. guess on facts" or taking another plausible view of the matter. xx xx Coming to matters where the rights and obligations of the parties are purely founded upon a local law i.e. a law made by the legislature of a State, etc., I do not see any harm befalling the nation, if the judgment of the High Court is to become c final. At least in these areas of litigation, the time worn cliche .. we are not final because we are infallible, but we are infallible only because we are final" might as well be extended to the decisions of the High Courts which are equally constitutional courts. " 40. While there may be no lack of legislative competence with the Parliament to make provision for direct appeal to the Supreme Court from orders of Tribunals but the legislative competence is not the only parameter of constitutionality. It can hardly be gainsaid that routine appeals to the highest court may result ·in obstruction of the Constitutional role assigned to the highest court as observed above. This may affect the balance required to be maintained by the highest court of giving priority to cases of national importance, for which larger Benches may be required to be constituted. Routine direct appeals to the highest court in commercial litigation affecting individual parties without there being any issue of national importance may call for reconsideration at appropriate levels. Further question is composition of Tribunals as substitutes for High Courts and exclusion ofHigh Court jurisdiction on account of direct appeals to this Court. Apart from desirability, constitutionality of such provisions may need to be gone into. We are, however, not expressing any opinion on this aspect at this stage. 41. We are thus of the view that in the first instance the Law Commission may look into the matter with the involvement of all the stakeholders. 42. We make it clear that as far as heavy pendency in this Court [20 I 6] 5 S.C.R. on account of liberal exercise of jurisdiction under Article I 36 of the Constitution oflndia is concerned, we do not wish to make any comment as this is a matter in the discretion of the Court and it is for the Court to address this issue. Our discussion is limited to the consideration of desirability of providing statutory appeals directly to this Court from orders of Tribunals on issues not affecting national or public interest and other aspects of statutory framework in respect of Tribunals as discussed above. 43. The questions which may be required to be examined by the Law Commission are : c Whether any changes in the statutory framework constituting various Tribunals with regard to persons appointed, manner of appointment, duration of appointment, etc. is necessary in the light of judgment of this Court in Madras Bar Association (supra) or on any other consideration from the point of view of strengthening the rule oflaw? II Whether it is permissible and advisable to provide appeals routinely to this Court only on a question of law or substantial question of law which is not of national or public importance without affecting the constitutional role assigned to the Supreme Court having regard to the desirability of decision being rendered within reasonable time? III Whether direct statutory appeals to the Supreme Court bypassing the High Courts from the orders of Tribunal affects access to justice to litigants in remote areas of the country? IV Whether it is desirable to exclude jurisdiction of all courts in absence of equally effective alternative mechanism for access to justice at grass root level as has been done in provisions ofTDSAT Act (Sections 14 and 15). V Any other incidental or connected issue which may be considered appropriate'. 44. We request the Law Commission to give its report as far as possible within one year. Thereafter the matter may be examined by concerned authorities. 45. Action taken by the Central Government, after its consideration, GUJARAT URJA VIKAS NIGAM LTD. v. ESSAR POWER LIMITED [ADARSH KUMAR GOEL, J.] may be placed on record. List the matter in November, 2017 before an appropriate Bench, preferably of three Judges to consider the above issue. Devika Gujral Appeal allowed with certain directions.