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REPORTABLE

 IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO.     3814     OF     2007   

M/s. DSR Steel (P) Ltd.  …Appellant

Versus

State of Rajasthan & Ors. …Respondents

(With Civil Appeal No.4393/2007 and No.4396/2007)

O     R     D     E     R   

T.S.     THAKUR,     J.   

1. These appeals under Section 125 of the Electricity Act,  

2003 call in question the correctness of an order dated 23rd  

November, 2006, passed by the Appellate Tribunal for  

Electricity whereby a batch of appeals including those filed  

by the appellants against an order dated 8th June, 2006  

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passed by the Rajasthan Electricity Regulatory Commission,  

have been dismissed.   

2. Jaipur Vidyut Vitran Nigam Limited (‘JVVNL’ for short),  

Jodhpur Vidyut Vitran Nigam Limited (‘JDVVNL’  for short)  

and Ajmer Vidyut Vitran Nigam Limited (‘AVVNL’ for short),  

submitted separate applications before the Rajasthan  

Electricity Regulatory Commission (for short ‘Commission’)  

at Jaipur in terms of Sections 62 and 64 of the Electricity  

Act, 2003 for revision of tariff to be effective from  

December 1, 2004. Each one of these distribution  

companies (‘Discoms’ for short) had an existing tariff but in  

their respective applications they sought an identical tariff  

revision which requests were taken up by the Commission  

for consideration together and disposed of in terms of a  

common order dated 17th December, 2004, passed after  

notices regarding filing of the said applications were  

published in different newspapers having circulation in the  

State of Rajasthan. Several objections were filed and  

suggestions made by nearly 100 individuals and  

organisations in the course of the proceedings before the  

Commission. All these objections were then considered by  2

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the Commission no matter only 38 of those who had filed  

the same had complied with the requirement laid down by  

the former. A large number of people and organisations  

even applied for personal hearing and were heard on  

different dates at different venues fixed for the purpose.  

Some of these objections also related to individual  

problems of the consumers or disputes relating to bills and  

other matters which were directed to be considered by the  

Discoms and decision taken on the same under intimation  

to the persons concerned. Other issues including those  

questioning the maintainability of the petitions and alleging  

non-compliance with the regulations and directions of the  

Commission were also raised.  Issues touching reforms in  

power sector, non-determination of the Rajasthan Vidyut  

Utpadan Nigam’s tariff from whom the Discoms purchase  

electricity, poor performance of Vidyut Vitran Nigams were  

also agitated.  Similarly objections to the proposed increase  

in tariff, interest charges, depreciation etc. too were raised  

and examined by the Commission. Suggestions regarding  

improvement, objections relating to high T&D losses,  

inadequacy of staff, continuation of un-metered supply,  

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issue of deemed licensee and tariff for deemed licensee  

were also examined. Questions relating to high voltage  

supply, segregation of mixed load, billing demand, demand  

based tariff for MIP consumers, power factor and shunt  

capacitor surcharge, vigilance checking of consumers,  

minimum billing, agriculture, domestic and industrial tariff  

too were examined by the Commission apart from several  

other issues that were placed before the Commission to  

which the Commission has made a reference in its order  

dated 8th June, 2006. The Commission eventually directed  

that the revised tariff determined by it will become effective  

from 1st January, 2005 and remain in force till the same is  

amended by the Commission by a separate order passed by  

it.

3. Aggrieved by the order passed by the Commission, the  

appellants and a large number of other consumers in that  

category filed review petitions under Section 94 (1)(f) of  

the Electricity Act, 2003 seeking review and continuation of  

the incentive scheme. These review petitions were  

dismissed by the Commission in terms of its order dated 8th  

June, 2006. The Commission noted the contention urged on  4

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behalf of the petitioners that they were affected by the  

withdrawal of the incentive scheme. It was also urged that  

these consumers had made investments on the basis of the  

incentive scheme bona fide believing that the same would  

continue for at least three years. The review petitioners,  

therefore, sought continuation of the said scheme by  

suitable review of the Commission’s order dated 17th  

December, 2004. The Commission also noted the  

opposition of the Discoms to the said prayer and the  

contention that the incentive scheme was to be effective  

upto 31st March, 2003 or till the Commission issued a tariff  

order whichever was earlier.  

4. The Commission noted the submissions made on  

behalf of the Discoms that the tariff petitions had been filed  

in August 2004 and the details of the scheme had been  

published in newspapers including the incentive scheme  

which was deliberated in the course of the public hearing  

and dealt with in the Commission’s tariff order dated 17th  

December, 2004. It was also argued on behalf of the  

Discoms that the modified incentive scheme was free from  

any legal flaw. 5

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5. Consideration of the rival submissions led the  

Commission to the conclusion that its order dated 17th  

December, 2004 had examined the question raised by the  

petitioners regarding the continuation of the incentive  

scheme and found that the scheme had a limited validity  

and its withdrawal did not offend the principles of  

promissory estoppel. It also held that the modification of  

the scheme was not without public notice and the  

discontinuance of the old incentive scheme had been given  

wide publicity pursuant to which large industries and  

associations had been heard on the question of introduction  

of a new scheme in place of the old.  The Commission also  

held that the question of applicability of Promissory  

Estoppel had been raised before the Commission at the  

hearing of the tariff petitions and that the material sought  

to be introduced in support of the said plea at the stage of  

review could not be taken into consideration. The  

Commission, accordingly, concluded that there was no  

mistake or error apparent on the face of the record in the  

order passed by it to call for a review of the same. In  

support the Commission noted several decisions of this  

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Court on the question of Promissory Estoppel including  

those delivered in M/s Motilal Padampat Sugar Mills  

Co. Ltd. v. State of Uttar Pradesh and Ors. (1979) 2  

SCC 409, Kasinka Trading and Anr. v. Union of India  

an Anr. (1995) 1 SCC 274, Shrijee Sales Corporation  

and Anr. v. Union of India (1997) 3 SCC 398, Union of  

India & Ors. v. Godfrey Philips India Ltd. (1985) 4  

SCC 369.

6. Aggrieved by the orders dated 17th December, 2004  

and 8th June, 2006 passed by the Commission, the  

appellants and few others filed Appeal Nos.180-197 of 2006  

and Appeal No.226 of 2006 before the Appellate Tribunal  

for Electricity, at New Delhi which were as noticed above  

dismissed by the Tribunal by the order impugned in these  

appeals. The Tribunal noted that there was no challenge  

before it as to the revision of the tariff order issued by the  

Commission.  It also found that the Regulatory Commission  

could exercise its power of review in terms of Section 94(1)

(f) of the Electricity Act, 2003 read with Order XLVII of the  

Civil Procedure Code and that it could review an order,  

provided a case for any such review was made out. The  

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Tribunal rejected the contention urged on behalf of the  

appellants that the doctrine of Promissory Estoppel was  

attracted in the facts of the case.  It concurred with the  

view taken by the Commission that the incentive scheme  

was applicable only upto 31st March, 2007 or till the  

Commission issued a tariff order whichever was earlier. The  

Tribunal observed:

“As has been held in Pawan Alloys & Casting Pvt. Ltd.,  Meerut v. U.P. State Electricity Board And Others,  (1997) 7 Supreme Court Cases 251, in this case, no  promise was held out to any new industries nor there  was an invitation for investments of large scale fund  but it only imposed a condition that existing industries  could avail of the incentive subject to the stipulations in  the scheme and nothing more.  The tariff fixation is a  statutory function in terms of The Electricity Act 2003  and tariff is to be fixed in the larger interest of  consumer public at large.  That being the position and  when in the very tariff scheme, it has been specifically  provided that the scheme will come to an end on  31.03.2007 or when the Regulatory Commission  determines distribution tariff which ever is earlier.  This  is only meaning it is not known as to how the  appellants could advance the said contention that the  scheme is to be given any other meaning is  impermissible.  This sentence which is incorporated in  the scheme is fatal to the claim of the appellants and  none of the precedents pressed into service by the  appellants will come to their rescue.  It will be sufficient  to answer this point, however, as the appellants on all  the contentions pressed for a decision.”   

7. We have heard learned counsel for the parties at  

considerable length. An appeal under Section 125 of the  

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Electricity Act, 2003 is maintainable before this Court only  

on the grounds specified in Section 100 of the Code of Civil  

Procedure. Section 100 of the C.P.C. in turn permits filing  

of an appeal only if the case involves a substantial question  

of law. Findings of fact recorded by the Courts below, which  

would in the present case, imply the Regulatory  

Commission as the Court of first instance and the Appellate  

Tribunal as the Court hearing the first appeal, cannot be re-

opened before this Court in an appeal under Section 125 of  

the Electricity Act, 2003. Just as the High Court cannot  

interfere with the concurrent findings of fact recorded by  

the Courts below in a second appeal under Section 100 of  

the Code of Civil Procedure, so also this Court would be  

loathed to entertain any challenge to the concurrent  

findings of fact recorded by the Regulatory Commission and  

the Appellate Tribunal. The decisions of this Court on the  

point are a legion. Reference to Govindaraju v.  

Mariamman (AIR 2005 SC 1008), Hari Singh v.  

Kanhaiya Lal (AIR 1999 SC 3325), Ramaswamy  

Kalingaryar v. Mathayan Padayachi (AIR 1992 SC  

115), Kehar Singh v. Yash Pal and Ors. (AIR 1990 SC  

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2212), Bismillah Begum (Smt.) (Dead) by LRs. v.  

Rahmatullah Khan (Dead) by LRs. (AIR 1998 SC 970)  

should, however, suffice.   

8. The Regulatory Commission has, in the case at hand  

recorded a clear finding of fact that the old incentive  

scheme was limited only upto 31st March, 2007 or till the  

Commission issued a tariff order whichever was earlier. It  

has also recorded a finding that while considering revision  

of tariff it had gone into the proposals regarding  

introduction of a new incentive scheme and approved the  

same, effectively bringing to an end the existing scheme  

and introducing a new scheme in its place. The Commission  

had declined to accept the contention that the appellant  

companies had altered their position to their detriment by  

making additional investments or that there was any  

specific representation or promise made to them that the  

old scheme would inevitably continue till 31st March, 2007.  

The additional material which the appellants had sought to  

introduce belatedly at the review stage had also been  

declined by the Commission. In its order dated 17th  

December, 2004 revising tariff the Commission had dealt  

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with the question relating to the incentive scheme in the  

following words:

“70. The incentive scheme was proposed by the  Nigams as a stopgap arrangement to arrest the decline  in industrial consumption.  The Commission while  conveying its approval to extension of the incentive  scheme clearly stipulated that it shall be valid till  31.3.07 or revision of tariff whichever was earlier.  The  scheme itself had a limited validity and therefore, did  not attract the principle of promissory estoppel.  The  Commission had envisaged review of incentive scheme  at the time of tariff revision, as the proceeding would  have provided opportunity to public to express their  views to enable appropriate changes in incentive  scheme or tariff.

71. After considering the petitioners’  proposal and  the views expressed before us, the Commission is of  the view that no separate scheme is called for at this  stage. The need to provide incentive to promote  consumption of electricity by large industrial power  (LIP) consumers should be taken care of by the tariff  itself.  An incentive which encourages better load factor  will serve the purpose.  Consequently, an incentive  scheme linked to consumption per KVA of contract  demand is proposed.  Accordingly we direct that the  incentive shall be available to all LIP consumers  including railways and public water works, and  eligibility for incentive shall be as follows:

(i) The annual consumption of the consumer for  the current financial year shall not be less than  his annual consumption of the previous financial  year.

(ii) In respect of new LIP consumers and existing  LIP consumers who reduce their contract  demand, incentive shall be admissible from the  quarter following six months from the date of  new connection or reduction of contract  demand, as the case may be.

(iii) Consumer should have no arrear outstanding  against him.

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72. Incentive shall be allowed to eligible consumers  provisionally on quarterly basis provided that  consumption during the quarter is not less than his  consumption during the corresponding quarter during  the previous year.  Incentive so allowed shall be  subject to final assessment at the end of the year, on  year-to-year basis.  If consumption of a consumer in  any quarter is less than that of the corresponding  quarter of the previous year but the annual  consumption is more than that of the previous year, he  shall be eligible for the incentive for the year as a  whole.  Incentive shall be as under on energy charges:-

(i) Energy consumption of 250  KWh per month per kVA of  contract demand and upto 400  KWh per month per kVA of  contract demand.

1.0%

(ii) Energy consumption exceeding  400 KWh per month per kVA of  contract demand and upto 550  KWh per month per kVA of  contract demand.

4.0%

(iii) Energy consumption in excess  of 550 KWh per Month per kVA  of contract demand.”

7.0%

9. The Tribunal concurred with the above view taken by  

the Commission and repelled the contention based on the  

principle of promissory estoppel not only on the ground that  

there had been no unequivocal representation regarding  

continuation of the scheme till 31st March, 2007 but also on  

the ground that there was no material to support the  

contention that the appellants had indeed made any  

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investment or changed their position to their detriment so  

as to attract the doctrine of promissory estoppel. In coming  

to that conclusion the Commission has also relied upon  

several decisions of this Court to which we have made a  

mention above.  We do not see any perversity in any one of  

those findings nor do we see any substantial question of  

law arising in the fact situation of these appeals. We have,  

therefore, no hesitation in dismissing these appeals on  

merits although the same have been filed beyond the  

period stipulated for the purpose under Section 125 of the  

Electricity Act, 2003.  

10. We may before parting mention that in Civil Appeal  

No.3814 of 2007 filed by DSR Steel (P) Ltd., one of the  

questions that was urged before us was whether the period  

of limitation would start running from the date of  

pronouncement of the order or the date of communication  

thereof. Relying upon the decision of this Court in  

Chhattisgarh State Electricity Board v. Central  

Electricity Regulatory Commission and Ors. (2010) 5  

SCC 23 it was contended on behalf of the respondent that  

the date on which the order was pronounced would also be  

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the date on which the same is deemed to have been  

communicated.  

11. Section 125 of the Electricity Act, 2003 makes it  

abundantly clear that the period of limitation commences  

from the date of communication of the decision or order  

and not from the date of its pronouncement.  As a matter  

of fact, Rules 94 and 98 of the Rules framed under the Act  

make a clear distinction between intimation regarding  

pronouncement of the order on the one hand and the  

communication of the order so pronounced to the parties  

on the other. While Rule 94 appears to us to provide for  

notice of pronouncement of an order, it makes no mention  

about the ‘communication’ of such an order as is referred to  

in Section 125 of the Act.  Transmission of the order by the  

Court Master to the Deputy Registrar of the Tribunal and its  

onward communication to the parties is dealt with by Rule  

98 of the said Rules which communication alone can be  

construed as a communication for purposes of Section 125  

of the Electricity Act, 2003. The decision of this Court in the  

Chattisgarh State Electricity Board’s case (supra) may  

in that view require reconsideration if the same were to be  

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understood to be laying down that the date of  

pronouncement is also the date of communication of the  

order.  We would have, in the ordinary course, made a  

reference to a larger Bench for that purpose but having  

regard to the fact that we have dismissed the appeals on  

merits, we consider it unnecessary to do so in the present  

case.   

12. So also the question whether an order passed by the  

Tribunal in appeal merges with an order by which the  

Tribunal has dismissed an application for review of the said  

order was argued before us at some length. Learned  

counsel for the appellants contended that since a review  

petition had been filed by two of the appellants namely,  

J.K. Industries Ltd. (Now known as J.K. Tyres and  

Industries Ltd.) and J.K. Laxmi Cement Ltd. in this case,  

the orders made by the Tribunal dismissing the appeals  

merged with the orders passed by it in the said review  

applications so that it is only the order dismissing the  

review application that was appealable before this Court.  If  

that were so the period of limitation could be reckoned only  

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from the date of the order passed in the review  

applications.  

13. Different situations may arise in relation to review  

petitions filed before a Court or Tribunal. One of the  

situations could be where the review application is allowed,  

the decree or order passed by the Court or Tribunal is  

vacated and the appeal/proceedings in which the same is  

made are re-heard and a fresh decree or order passed in  

the same.  It is manifest that in such a situation the  

subsequent decree alone is appealable not because it is an  

order in review but because it is a decree that is passed in  

a proceeding after the earlier decree passed in the very  

same proceedings has been vacated by the Court hearing  

the review petition. The second situation that one can  

conceive of is where a Court or Tribunal makes an order in  

a review petition by which the review petition is allowed  

and the decree/order under review reversed or modified.  

Such an order shall then be a composite order whereby the  

Court not only vacates the earlier decree or order but  

simultaneous with such vacation of the earlier decree or  

order, passes another decree or order or modifies the one  

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made earlier.  The decree so vacated reversed or modified  

is then the decree that is effective for purposes of a further  

appeal, if any, maintainable under law.   

14. The third situation with which we are concerned in the  

instant case is where the revision petition is filed before the  

Tribunal but the Tribunal refuses to interfere with the  

decree or order earlier made.  It simply dismisses the  

review petition.  The decree in such a case suffers neither  

any reversal nor an alteration or modification.  It is an  

order by which the review petition is dismissed thereby  

affirming the decree or order.  In such a contingency there  

is no question of any merger and anyone aggrieved by the  

decree or order of the Tribunal or Court shall have to  

challenge within the time stipulated by law, the original  

decree and not the order dismissing the review petition.  

Time taken by a party in diligently pursing the remedy by  

way of review may in appropriate cases be excluded from  

consideration while condoning the delay in the filing of the  

appeal, but such exclusion or condonation would not imply  

that there is a merger of the original decree and the order  

dismissing the review petition.

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15. The decisions of this Court in Manohar S/o Shankar  

Nale and Ors. v. Jaipalsing S/o Shivalalsing Rajput  

(2008) 1 SCC 520 in our view, correctly settle the legal  

position.  The view taken in Sushil Kumar Sen v. State of  

Bihar (1975) 1 SCC 774 and Kunhayammed and Ors.  

v. State of Kerala & Anr. (2000) 6 SCC 359, wherein  

the former decision has been noted, shall also have to be  

understood in that light only.

16. In the result, we dismiss these appeals as no  

substantial question of law arises for our consideration.  

The respondent shall also be entitled to cost of Rs.20,000/-  

in each case to be deposited in the SCBA Lawyers’ Welfare  

Fund within six weeks from today.  

……………………..……………..…J.                   (T.S. THAKUR)

……………………………….………J.    (GYAN SUDHA MISRA)

New Delhi May 1, 2012

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