M/S. Dsr Steel (P) Ltd vs State Of Rajasthan & Ors

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 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, 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.

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 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:

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:-

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 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.

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.