TATA POWER COMPANY LIMITED vs GUJARAT URJA VIKAS NIGAM LIMITED & Ors on 17 September 2026

O R D E R

PER HON’BLE MR. VIRENDER BHAT, JUDICIAL MEMBER

1. Review of the common judgment dated 25.02.2026 passed by this Tribunal in appeal nos.348/2025, 371/2025 and 400/2025 has been sought

in this review petition. The review petitioner M/s Tata Power Company Limited was one of the respondents in these appeals.

2. The primary grounds on which the said judgment is sought to be reviewed is that characterization of Paragraph No.36 of the previous judgment of this Tribunal dated 28.08.2024 in appeal no.309/2019 (in short “DVC case” or “DVC judgment”) as a “stray sentence” is contrary to the spirit of that judgment and that the conclusion reached by this Tribunal in the judgment under review i.e. sub-para (ix) at page 174 is precisely opposite and contrary to the DVC judgment rendered by a coordinate bench of this Tribunal, which had a binding force and could not have been altered or diluted by another coordinate bench of this Tribunal in the judgment under review.

3. To state pithily, this Tribunal in DVC judgment had held that non-tariff disputes involving a generating company or distribution licensee do not fall within the ambit of clause (f) of Section 79(1) of the Electricity Act, 2003, and are thus, arbitrable. This is clearly reflected from Paragraph no.36 of that judgment, which is extracted hereinbelow: - “36. Thus, in view of the above discussion, we are unable to uphold the findings of the Commission in the impugned order. We make it clear that non-tariff disputes involving a

generating company or a distribution licensee do not fall within the ambit of clause (f) of Section 79(1) of the Electricity Act, 2003 and are thus, arbitrable.”

4. We find it pertinent to note here that this judgment had been assailed before the Hon'ble Supreme Court by way of Civil Appeal No.10480/2024 which came to be dismissed.

5. In the judgment under review, this Tribunal has observed at page no.30 that since the Supreme Court has expressed its disinclination to interfere with the DVC judgment in Civil Appeal No.10480 of 2024, it is the law declared in the said DVC judgment which would govern. In conclusion (i) on page 173 also this Tribunal observes that the ratio of DVC judgment, passed by a coordinate bench of this Tribunal, constitutes a binding precedent. However, on page 85 of the judgment under review, this Tribunal has recorded as under: - “Nowhere, in the DVC judgment, has this Tribunal specifically stated that disputes, which do not fall within the ambit of Clauses (a) to (d) of Section 79(1)(f), should, nonetheless, be referred to arbitration under the second limb of the said provision. Such an inference is drawn by the CERC, possibly, on the basis of a stray sentence in Para 36 of the DVC judgment, that “non-tariff disputes involving the generating company or a distribution licensee do not fall

within the ambit of clause (f) of Section 79(1) of the Electricity Act, 2003 and are thus are arbitrable”. This sentence is sought to be read out of context by the CERC, and as a declaration of the law by this Tribunal that, though the CERC lacks jurisdiction to adjudicate non-tariff disputes involving a generating company, it can nonetheless refer such disputes to arbitration.” (Emphasis supplied)

6. The review petitioner has taken exception to the characterization of Paragraph no.36 of the DVC judgment as a stray sentence in the above noted paragraph which, according to the petitioner, tantamounts to the error apparent on the face of record and liable to be rectified in this review petition. Further, according to the petitioner, the conclusion (ix) at page 174 of the judgment under review stating that only those disputes which fall within the ambit of clauses (a) to (d) of Section 79(1) of the Electricity Act, 2003, can either be adjudicated by the Central Commission or in the alternative referred to arbitration under Section 79(1)(f) of the Electricity Act, 2003, is in direct contrast to what this Tribunal had held in DVC judgment previously thereby constituting another patent error in the judgment under review which deserves to be rectified in the instant petition.

7. We have heard Dr. Abhishek Manu Singhvi, and Mr. Sanjay Sen, learned senior counsels appearing on behalf of the review petitioner, Mr. M

G Ramachandran, learned senior counsel appearing on behalf of the 1st respondent, Mr. B.P. Patil, learned senior counsel appearing on behalf of the 3rd respondent, Ms. Poorva Saigal, learned counsel for the 2nd respondent and Mr. Anand Ganesan, learned counsel for the 4th, 5th and 6th respondents.

Our Analysis: -

8. At the outset, we may note that Section 114 of CPC is the substantive provision dealing with scope of review and is quoted below:

“114. Review. —Subject as aforesaid, any person considering himself aggrieved—

(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred.

(b) by a decree or order from which no appeal is allowed by this Code, or

(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.”

9. The grounds on which review of a judgment / order can be sought, have been specified in Order XLVII of the CPC which are reproduced hereinbelow: - “1. Application for review of judgment. — (1) Any person considering himself aggrieved—

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applied for the review.

Explanation.—The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.” (Emphasis supplied)

10. A bare reading of these relevant legal provisions would make it clear that an application for review of a judgment / order is maintainable upon (i) discovery of a new and important matter or evidence which, after exercise of due diligence, was not within the knowledge of the review applicant or could not be produced by him when the judgment / order was passed; or (ii) on account of some mistake or error apparent on the face of record; or (iii) for any other sufficient reason.

11. The expression “error apparent on the face of record” used in Order XLVII Rule 1 indicates an error which is self-evident and staring in the eye. Any error or mistake which is not self-evident and has to be deducted from a process of reasoning cannot be said to be an error apparent on the face of record justifying exercise of power of review. Power of review can be exercised only where a glaring omission or a patent mistake is found in the order under review. We may also note that the power of review can be exercised only for correction of a patent mistake but not to substitute a view for the reason that a review petition cannot be permitted to be an appeal in disguise.

12. The parameters which are to be kept in mind while dealing with a review petition have been enunciated by the Hon'ble Supreme Court in a catena of judgments starting from Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasium 1955 1 SCR 520 and the most recent being Malleeswari v. K. Suguna and Anr. SLP (C) No. 12787 of 2025 (2025 INSC 1080) decided on 08.09.2025 wherein the Hon'ble Supreme Court has again reiterated that court’s power to review its own previous order is strictly limited to correcting errors apparent on the face of the record and not to rehear or substitute a different view as if it were an appeal. It has been held

in the said judgment that the power of review is different from appellate power and is subject to the following limitations to maintain the finality of the judicial decisions: - “15.1 The review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 of CPC.

15.2 Review is not to be confused with appellate powers, which may enable an appellate court to correct all manner of errors committed by the subordinate court.

15.3 In exercise of the jurisdiction under Order 47 Rule 1 of CPC, it is not permissible for an erroneous decision to be reheard and corrected. A review petition, it must be remembered, has a limited purpose and cannot be allowed to be an appeal in disguise.

15.4 The power of review can be exercised for the correction of a mistake, but not to substitute a view. Such powers can be exercised within the limits specified in the statute governing the exercise of power.

15.5 The review court does not sit in appeal over its own order. A rehearing of the matter is impermissible. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. Hence, it is invoked only to prevent a miscarriage of justice or to correct grave and palpable errors.”

13. Further, after noticing the distinction between power of review and appellate power, the Hon'ble Supreme Court has succinctly summed up the grounds of review as under: - “17.1 The ground of discovery of new and important matter or evidence is a ground available if it is demonstrated that, despite the exercise of due diligence, this evidence was not within their knowledge or could not be produced by the party at the time, the original decree or order was passed.

17.2 Mistake or error apparent on the face of the record may be invoked if there is something more than a mere error, and it must be the one which is manifest on the face of the record. Such an error is a patent error and not a mere wrong decision. An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record.

17.3 Lastly, the phrase 'for any other sufficient reason' means a reason that is sufficient on grounds at least analogous to those specified in the other two categories.”

14. We may also note that in the words of Justice Krishna Iyer (as his Lordship then was), “a plea of review, unless the first judicial view is

manifestly distorted, is like asking for the Moon. A forensic defeat cannot be avenged by an invitation to have a second look, hopeful of discovery of flows and reversal of result. A review in the counsel’s mentation cannot repair the verdict once given. So, the law laid down must rest in peace.” (See Ghanshyam Mishra & Sons (P) Ltd v. Edelweiss Asset Reconstruction Co. Ltd. (2021) 9 SCC 657).

15. Bearing in mind these salutary legal principles governing the power of a court to review its own decision, let’s now turn to the judgment under review and the grounds of review raised in the petition.

16. In the case at hand, it is argued by the learned senior counsel for the review petitioner Dr. Singhvi that the order under review expounds a view which is contrary to the view expressed by this Tribunal in the previous DVC judgment on the same statutory question. He would further submit that the DVC judgment, as affirmed by the Hon'ble Supreme Court, holds the field and also gets support from the judgment of Delhi High Court in Renew Wind Energy (AP2) (P) Ltd. v. Solar Energy Corporation of India 2025 SCC OnLine DEL 8252 wherein it has been held that referral power of Central Commission under the second limb of Section 79(1)(f) is independent of the first limb and extends to “any dispute”. His submission is that the order under

review holds exactly the opposite, and therefore, suffers from an error apparent on the face of record. The learned senior counsel further argued that the power to refer disputes to arbitration under Section 79(1)(f) of the Electricity Act, 2003, cannot be confined to disputes covered by clauses (a) to (d) of the Section as held in the judgment under review for the following reasons: - (a) Clauses (a) to (d) of Section 79(1) are confined to tariff, and the DVC Judgment at Para 30 unequivocally so holds, whereas the Order under Review holds the opposite; (b) the word ‘any’ in the second limb of Section 79(1)(f) has been correctly interpreted in both the DVC Judgement and the Renew Judgment and cannot be uprooted by the judgment under Review. Reliance is placed on State of U.P. v. Ajay Kumar Sharma, (2016) 15 SCC 289 (Para 14, 24 & 25), for the proposition that a coordinate bench judgment binds another bench;

(c) section 79(1)(f) is worded distinctly from Section 86(1)(f), a distinction expressly recognised in the DVC SC Order; (d) the gross misapplication of binding precedent here, the diminishing of the DVC APTEL Judgment, the DVC SC Order,

and the Renew Judgment is itself a fit case for review. Reliance is placed on Gujarat Urja Vikas Nigam Ltd. v. Taxus Infrastructure & Power Projects Ltd. & Ors., 2024 SCC Online APTEL 29 (Paras 86 & 87).

17. The learned senior counsel further argued that this Tribunal in the judgment under review has accepted that the previous judgment in DVC case is a binding precedent, yet has in the same breath dismissed its operative conclusion in Paragraph no.36 as a “stray sentence” not forming part of the ratio of that judgment, which is clearly unsustainable and deserves to be set aside in this review petition. According to the learned senior counsel, by holding in one breath that DVC judgment is a binding precedent but dismissing its operative conclusion in Paragraph no.36 as a “stray sentence” in the next breath, this Tribunal in the judgment under review has, in effect, overruled the said previous decision of the coordinate bench without following the requisite procedure in this regard. It is, further, argued by the learned senior counsel that the judgment of the Supreme Court in Hindustan Zinc Ltd. v. Ajmer Vidyut Vitran Nigam Ltd., (2019) 17 SCC 82, upon which reliance is heavily placed in the judgment under review, does not decide or address the question of law which had arisen before this Tribunal in the present case as it does not decide any of the following issues: -

(a) whether the second limb of Section 79(1)(f) is confined to clauses (a) to (d); (b) whether Section 8(1) of the Arbitration and Conciliation Act, 1996, is a precondition to the referral power; or

(c) whether non-tariff disputes under a PPA between a generating company and a licensee are arbitrable under Section 79(1)(f) read with Section 158.

18. Per contra, the learned senior counsel/counsels appearing on behalf of the respondents have drawn our attention to a comparative table recording the conclusions reached by this Tribunal in DVC judgment, judgment under review, and by the Delhi High Court in Renew judgment (supra). It is argued that perusal of the said comparative table makes it clear that there is no deviation by this Tribunal in the judgment under review either qua the DVC judgment or qua the Renew judgment of the High Court or any other earlier order of this Tribunal. It is submitted that in the judgment under review, DVC judgment as well as the judgment of Hon'ble Supreme Court in Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd., (2008) 4 SCC 755 have been referred to on the scope of Section 79(1)(f) of the Electricity Act, 2003, namely, the power of the Central Commission to adjudicate the disputes or to refer the disputes to arbitration must necessarily relate to clauses (a) to (d) of sub-

section (1) of that Section. It is argued that a dispute which does not fall within the scope of Section 79(1)(f) read with Section 79(1)(a) or (b) cannot be adjudicated by the Central Commission or referred to arbitration by it as per the judgment in Hindustan Zinc case (supra).

19. We have already noted hereinabove that this Tribunal, in the judgment under review, has observed at page no.30 and page no.173 that the ratio of DVC judgment, passed by coordinate bench of this Tribunal, constitutes a binding precedent and is the law declared by this Tribunal which would govern. Then this Tribunal has proceeded to observe at page nos.77 to 84 of the judgment under review as under: - “(n) TWO LIMBS OF SECTION 79(1)(f): ARE THEY UNCONNECTED WITH EACH OTHER:

It is contended, on behalf of the Respondent-TPCL, that the CERC has rightly held that the second limb of Section 79(1)(f) should be read independent of the first limb and, even in cases where the Central Commission lacks jurisdiction to adjudicate disputes under the first limb of Section 79(1)(f) (ie to adjudicate disputes in regard to matters connected with clauses (a) to (d) of Section 79(1), more particularly non-tariff disputes), it would nonetheless have jurisdiction to refer “any” dispute (ie the non-tariff dispute) to arbitration.

This submission also finds support from the Delhi High Court Judgement, in Renew Wind Energy (AP2) (P) Ltd, wherein it was held that the Central Commission not only has the jurisdiction to refer disputes, in regard to matters connected with clauses (a) to (d) of Section 79(1) to arbitration, but it also has the power to refer disputes, even in regard to matters unconnected with clauses (a) to (d) of Section 79(1), to arbitration as the scope and ambit of the second limb of Section 79(1)(f) is extremely wide.

Accepting this submission, urged on behalf of the Respondent-TPCL, would result in startling consequences. A plain and literal reading of the words refer “any” dispute for arbitration, independent of the first limb of Section 79(1)(f), can be construed to mean that the Central Commission could refer even a dispute which does not fall within the ambit of Electricity Act, say for example a matrimonial dispute, also to arbitration. In this context, it must be borne in mind that a Tribunal, which is a creation of a Statute, has only the powers expressly conferred on it, or resulting directly from the powers so conferred. Acting otherwise goes to the very existence of the power. Statutory Tribunals, set up under an Act of Parliament, are creations of the Statute, (R.K. Jain v. Union of India, (1993) 4 SCC 119), and should be guided by the conditions stipulated in the statutory provisions while exercising powers expressly conferred or those incidental thereto. (Commissioner of

Central Excise v. Sri Chaitanya Educational Committee, 2011 SCC OnLine AP 1078). Statutory Tribunals, created by an Act of Parliament, have limited jurisdiction and must function within the four-corners of the Statute which created them. (O.P. Gupta v. Dr. Rattan Singh, (1964) 1 SCR 259). It is not open to such Tribunals to travel beyond the provisions of the statute. (D. Ramakrishna Reddy v. Addl. Revenue Divisional Officers, (2000) 7 SCC 12). An authority created by a statute must act under the Act and not outside it. As it is a creation of the statute, it can only decide the dispute in terms of the provisions of the Act. (K.S. Venkataraman & Co. v. State of Madras, AIR 1966 SC 1089; Mysore Breweries Lt. v. Commissioner of Income- Tax, (1987) 166 ITR 723 (KAR)). (Nuclear Power Corporation of India v. Central Electricity Regulatory Commission (Judgment of Aptel in Appeal No. 134 of 2024 dated 27.03.2025).

Both the CERC and the State Commissions are creations of the Electricity Act, and their powers and functions are confined only to the provisions of the said Act and not beyond. Consequently, the jurisdiction conferred on the CERC under the second limb of Section 79(1)(f), and on the State Commission under the second limb of Section 86(1)(f), to refer any dispute to arbitration must be understood only as the power to refer “any” dispute under the Electricity Act to arbitration, and not disputes falling outside the purview of the said Act.

Even if we were to read the words “any dispute”, in the second limb of Section 79(1)(f), to mean any dispute under the Electricity Act, and that the CERC can refer any dispute under the Electricity Act to arbitration, it would still result in unacceptable consequences.

Not all disputes under the Electricity Act fall within the adjudicatory jurisdiction of either the CERC or the State Commissions. Disputes involving consumers are not amenable to the adjudicatory jurisdiction of either of these Commissions. In Torrent Power Ltd vs UPERC: 2025 SCC OnLine 1410, the Supreme Court held that the adjudicatory jurisdiction of the Central Commission is specified under Section 79(1)(f) and is limited to adjudication of disputes involving generating companies or transmission licensees, in regard to matters connected with clauses (a) to (d); the State Electricity Regulatory Commissions have a comparatively broader jurisdiction under Section 86, to adjudicate upon all disputes between the licensees and generating companies, without being limited to categories specified in (a) to (d) of Section 79; however, even this enlarged jurisdiction of the State Electricity Regulatory Commissions does not include the power to adjudicate disputes involving consumers, and by extension their grievances.

The Electricity Act provides for separate fora for redressal of grievances of consumers. Section 42(5) requires every distribution licensee to establish a forum for redressal of grievances of consumers in accordance with the guidelines as may be specified by the State Commission. Section 42(6) enables any consumer, who is aggrieved by the non- redressal of his grievances by the forum for redressal of consumer disputes, to make a representation, for the redressal of his grievance, to an Ombudsman appointed or designated by the State Commission. The CGRF established in terms of the guidelines made by the State Commission, and the Ombudsman appointed/ designated by the State Commission, are the two authorities which can be approached by a consumer for redressal for his grievance, and not either the Central or the State Commission. If, on an expanded meaning being given to the words “any dispute”, disputes involving consumers under the Electricity Act are held capable of being referred to arbitration by the CERC under Section 79(1)(f), we must then hold that such disputes can be referred to arbitration by the State Commission also, for the second limb in both the said provisions are identically worded. As shall be elaborated later, in this order, such a construction would fall foul of the law laid down by the Supreme Court in Hindustan Zinc Ltd. v. Ajmer Vidyut Vitran Nigam Ltd., (2019) 17 SCC 82.

Further, even if the words “any dispute” in Section 79(1)(f) were to be read as “any dispute” under the Electricity Act involving generating companies, but unrelated to clauses (a) to (d) of Section 79(1), it would still result in a situation where the CERC would then be held to have jurisdiction to refer a dispute, between a generating company supplying electricity intraState and a distribution licensee, to arbitration. This would result in conferring power on the CERC to refer a dispute, not falling within its adjudicatory jurisdiction under Section 79(1)(f) and falling within the adjudicatory jurisdiction of the State Commission under Section 86(1)(f) of the Electricity Act, for arbitration. It may also result in conferring concurrent jurisdiction in both the CERC and the State Commission to refer any dispute, under the Electricity Act involving generating companies, to arbitration ie the State Commission must thereby be held to have the jurisdiction to refer disputes, falling within clauses (a) & (b) of Section 79(1) to arbitration in the exercise of its powers under Section 86(1)(f), though the jurisdiction to adjudicate such disputes vests exclusively with the Central Commission under Section 79(1)(f) of the Electricity Act.

In this context, it must be borne in mind that the Electricity Act is conceived to be a complete code in itself. (PTC India Ltd vs CERC: (2010) 4 SCC 603; Pune Power Development Private Ltd. v. Karnataka Electricity Regulatory Commission, 2011 SCC OnLine APTEL 24). All disputes, in relation to transaction involving generators/

licensees, are made subject to the jurisdiction of the State Commission or the Central Commission as contained in Sections 86 and 79 of the Electricity Act respectively. (Pune Power Development Private Ltd. v. Karnataka Electricity Regulatory Commission, 2011 SCC OnLine APTEL 24). However, a PPA executed between parties, which deals with generation and supply of electricity, will either be governed by the State Commission or the Central Commission constituted under the Electricity Act, for, if neither Commission is held to have jurisdiction, it would lead to absurdity. (Energy Watchdog v. CERC, (2017) 14 SCC 80; SECI vs KSERC (Judgement of Aptel in Appeal No. 414 of 2022 dated 13.08.2024).

Except for Section 64(5) which enables, on fulfilment of the conditions stipulated therein, for a State Commission to exercise jurisdiction to determine tariff for inter-state supply of electricity, which may otherwise fall within the jurisdiction of the Central Commission, our attention has not been drawn to any other provision in the Electricity Act which confers concurrent jurisdiction on both the Central and the State Commission. Accepting the construction placed, on behalf of the Respondent-TPCL, on the words “refer any dispute for arbitration” in Section 79(1)(f), as conferring power on the CERC to refer a non-tariff dispute involving a generating company, not falling under Section 79(1)(b) of the Electricity Act, for arbitration, would require us to hold that, since the second limb of Section 86(1)(f) is identically

worded, the State Commission would also have jurisdiction to refer such a dispute to arbitration, meaning thereby that both the CERC and the State Commission would have concurrent jurisdiction to refer such disputes to arbitration.

Even more unacceptable consequences may result on such a construction being placed on the second limb of Sections 79(1)(f) /86(1)(f), for the Regulatory Commission of one State would then be entitled to refer a dispute, falling outside the said State in its entirety, to arbitration resulting in such a Commission exercising the power of referral of disputes to arbitration, the jurisdiction to adjudicate which is not conferred on it but is vested exclusively in another State Regulatory Commission. The law does not permit any court/tribunal/authority/forum to usurp jurisdiction, especially in cases where such an authority does not have jurisdiction on the subject-matter. (Jagmittar Sain Bhagat v. Health Services, Haryana, (2013) 10 SCC 136). The powers, which have not been expressly given to them by the Statute creating them, cannot be exercised by them. (Rajeev Hitendra Pathak v. Achyut Kashinath, (2011) 9 SCC 541). The Central Electricity Regulatory Commission can exercise jurisdiction only when the subject matter falls within its competence, and the order that may be passed is within its authority, and not otherwise. (Dakshin Haryana Bijli Vitaran Nigam Ltd. v. Princeton Park Condominium: 2007 Aptel 764; BSES Rajdhani Power Limited v. Delhi

Electricity Regulatory Commission, 2009 SCC OnLine APTEL 52).

If the second limb of Section 79(1)(f)/86(1)(f) were intended to be independent of and unconnected with the first limb, Parliament would not have provided for both of them in the same clause (f) and, instead, would have made a separate provisions for both of them (ie (1) adjudication and (2) referring the dispute to arbitration) in two different clauses of Section 79(1)/86(1). As Parliament chose to provide for both of them in the same clause, it is evident that the first and the second limbs of clause (f) of Section 79(1) are integrally connected with each other, with both adjudication and referral to arbitration relating to the same nature of disputes. The word “any dispute”, in the second limb of both Section 79(1)(f) and Section 86(1)(f), can therefore only mean any dispute as referred to in the first limb of the said provision.

The word “any” has been defined by the Concise Oxford English Dictionary (Eleventh Edition) to mean (1) used to refer to one or some of a thing or number of things, no matter how much or how many; and (2) whichever of a specified class might be chosen. P. Ramanatha Aiyar 3rd Edition 2005 defines the words “any dispute” to mean any dispute which the authority is competent to try and decide.

Since the CERC is competent to decide (adjudicate) only disputes falling under clauses (a) to (d) of Section 79(1), its

jurisdiction under Section 79(1)(f), to refer disputes to arbitration, must be confined only to such disputes which fall within clauses (a) to (d) of Section 79(1), and none other. In other words, the jurisdiction of the CERC to refer disputes to arbitration is confined to “any dispute” falling under clauses (a) to (d) of Section 79(1) of the Electricity Act. Likewise, since the power conferred by Section 86(1)(f) on the State Commission is to adjudicate disputes between a generator and a licensee within its jurisdiction, it can only refer such disputes for arbitration, and not any other dispute. In other words, the jurisdiction of the State Commission, to refer disputes to arbitration, is confined to any dispute between a generator and a licensee falling within its jurisdiction ie intra- state.”

20. Thus, upon analysis of the rival submissions by the parties before it and taking note of various judgments of this Tribunal as well as Supreme Court , the conclusion reached in the judgment under review is that since the Central Commission is competent to decide (adjudicate) only disputes falling under clauses (a) to (d) of Section 79(1) its jurisdiction under Section 79(1)(f) to refer disputes to arbitration must also be confined only to such disputes which fall within the clauses (a) to (d) of Section 79(1) and none other. In other words, this Tribunal has concluded that the jurisdiction of the Central Commission to refer disputes to arbitration is confined to “any dispute” falling under clauses (a) – (d) of Section 79(1) of the Electricity Act, 2003. As for

the judgment of Delhi High Court in Renew case it has been discussed on page nos.87-88 of the judgment under review. However, this Tribunal refused to follow the law declared by the High Court in the said judgment upon finding that the same has been rendered in ignorance of the judgment of the Hon'ble Supreme Court in Hindustan Zinc case(supra), and therefore, this Tribunal is bound to follow the law declared by the Hon'ble Supreme Court in the said judgment. The scope and ambit of the judgment of the Supreme Court in Hindustan Zinc case has been noted at page nos.91-94 of the judgment under review which are extracted hereinbelow: - “(s) JUDGEMENT OF THE SUPREME COURT IN HINDUSTAN ZINC LTD:

It is useful in this context to refer to the judgment of the Supreme Court in Hindustan Zinc Ltd. v. Ajmer Vidyut Vitran Nigam Ltd., (2019) 17 SCC 82. The question that arose for consideration, in Hindustan Zinc Ltd, was regarding the scope of arbitration proceedings under the Electricity Act, 2003, in particular, Section 86(1)(f) thereof read with Section 158. The appellant Hindustan Zinc Ltd had four high tension electricity connections for which four contracts were entered into with the respondent for purchase of electricity. The appellant also set up a captive power plant which was commissioned and synchronized with the Rajasthan Vidyut Prasaran Nigam Ltd Grid. Short-

term open access, to the transmission and distribution systems of this grid, was sought under the Regulations and requisite permission was obtained. Thereafter, the appellant entered into three open access agreements with the respondent for wheeling of power from its captive power plant, on the respondent's distribution system, to the three units that were owned by it. Open access commenced, and the power generated at its captive power plant was injected at the grid sub-stations from where it was transmitted on the respondent's transmission system, and then supplied to the appellant's three units.

The dispute that arose between the parties was as to the unscheduled inter-change charges which became payable under clauses 8 and 9 of the three agreements. Each of the three units was described as an open access consumer. When disputes arose between the appellant and the respondent, the Rajasthan Electricity Regulatory Commission, by two Orders passed by it, stated that it will itself decide the dispute between the parties; however, by a subsequent Order, the Commission appointed an arbitrator under Section 86(1)(f) read with Section 158 of the Electricity Act, referring the dispute to arbitration. The award passed by the arbitrator was challenged before the Commercial Court in a Petition filed under Section 34 of the 1996 Act which was dismissed.

In the Section 37 appeal filed thereagainst, the High Court held that the captive generating plant of the company was to use, through open access, the distribution system of the respondent to wheel power to three of its own units. Given this fact, and given the fact that the three agreements were entered into with respect to these three units, the High Court held that the status of the appellant company was that an open access consumer, and not that of a generating company; and, as a result, Section 86(1)(f) of the Electricity Act would not be attracted. Consequently, the issue being one of inherent lack of jurisdiction, the High Court reversed the order of the Commercial Court, Ajmer, and set aside the entire award stating that the dispute raised between the parties, in the present case, would be outside the scope of Section 86(1)(f) of the Electricity Act altogether.

It is in this context that the Supreme Court, in Hindustan Zinc Ltd, observed that adjudication of disputes, under Section 86(1)(f) of the Electricity Act, can only be between licensees and generating companies and not between licensees and consumers, which is provided for in an open access situation by Section 42; under the Rajasthan Electricity Regulatory Commission (Terms and Conditions for Open Access) Regulations, 2004, , clause 29, in particular, gives a three-tier hierarchy of challenge when it comes to disputes raised between distribution licensees and consumers in relation to matters qua open access; this is quite apart from the separate mechanism provided in

Section 42(6) of the Electricity Act, where a representation for redressal of grievances may be made to the Ombudsman appointed or designated by the State Commission; and the Supreme Court, in Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd., (2008) 4 SCC 755, had occasion to construe the language of Section 86(1)(f) of the 2003 Act.

After extracting Paras 26 to 28 of the judgement in Gujarat Urja Vikas Nigam Ltd, the Supreme Court, in Hindustan Zinc Ltd. v. Ajmer Vidyut Vitran Nigam Ltd., (2019) 17 SCC 82, observed that what becomes clear on a reading of the judgment, in Gujarat Urja Vikas Nigam Ltd. ,was that the expression “and” occurring in Section 86(1)(f) must be read as “or”; but this is only because, as has been pointed out in the judgment, the State Commission cannot both decide the dispute itself and also refer it to an arbitrator; otherwise also, reference of any dispute for arbitration can only be between the licensees and generating companies and not otherwise; this being the case, the High Court was right in stating that the arbitrator could not, in law, have been appointed by the State Commission under Section 86(1)(f) of the Electricity Act; and the award based on such appointment would be non-est in law.

As the attention of the Delhi High Court in Renew Wind Energy (AP2) (P) Ltd, was not drawn to the judgement of the Supreme Court in Hindustan Zinc Ltd, we must necessary follow the law declared in the judgement of the

Supreme Court, and not the contrary view taken by the Delhi High Court.”

21. It is, thus, manifest that the Hon'ble Supreme Court, upon noting the observations in the previous judgment in GUVNL case (supra), held that the expression “and” occurring in Section 86(1)(f) must be read as “or” for the reason that the State Commission cannot both decide the dispute itself and also refer it to arbitrator. Relying on the said judgment in Hindustan Zinc case, this Tribunal in the judgment under review observed that since the language employed in second limb of both Sections 79(1)(f) and 86(1)(f) is identical, it must necessarily be held that only disputes involving generating companies in regard to matters connected with clauses (a) to (d) of Section 79(1) (i.e. disputes which Central Commission is empowered to adjudicate) can be referred to arbitration by the Central Commission. It has, further been held in the judgment under review that power to refer a dispute to arbitration can be exercised only with respect to those disputes which the Commission is empowered to adjudicate and none other. Consequently, if the Central Commission lacks jurisdiction to adjudicate a non-tariff dispute involving a generating company, it must be held to also lack jurisdiction to refer such a dispute to arbitration. Thus, this Tribunal in judgment under review has not committed any error (much less an apparent error) in following the law laid

down by the Apex court in Hindustan Zinc case and disregarding the observations of Delhi High Court in Renew case.

22. Thus, what is evident from the meaningful perusal of the judgment under review is that this Tribunal has held that only those disputes, which fall within the ambit of clauses (a) to (d) of Section 79(1), which can either be adjudicated by the Central Commission or, in the alternative, referred to arbitration under Section 79(1)(f) of the Electricity Act, 2003. The final conclusion reached in this regard in the judgment under review is extracted hereinbelow: - “(ix) It is only disputes, which fall within the ambit of clauses (a) to (d) of Section 79(1), which can either be adjudicated by the CERC or, in the alternative, be referred to arbitration under Section 79(1)(f) of the Electricity Act.

(x) In the light of the law declared by this Tribunal, in the DVC Judgement, it must be held that disputes, including those which fall within the ambit of the regulatory functions of the Commission, or which impact tariff either directly or indirectly, are non-arbitrable and, not-withstanding an arbitration agreement in existence and the tests stipulated in Section 8(1) of the 1996 Act being satisfied, cannot be referred to arbitration.

(xi) Disputes which are in regard to matters connected with clauses (a) to (d) of Section 79(1), but which do not relate to the regulatory functions of the CERC or impact tariff either directly or indirectly, can, in the exercise of the discretionary jurisdiction of the CERC under Section 79(1)(f), either be adjudicated by the Central Commission or be referred to arbitration. One such instance would be valid termination of a PPA which does not impact tariff, which was referred, by the DVC Judgement of this Tribunal, to arbitration.

(xii) In the light of the law declared by the Supreme Court in GUVNL, and this Tribunal in the DVC Judgement, it cannot be said that only provisions after Section 11 of the 1996 Act, and not provisions prior thereto, which would apply to arbitration proceedings referred under clause (f) of both Sections 79(1) and 86(1) of the Electricity Act. … ”

23. We are unable to countenance the submissions on behalf of the review petitioner that in the judgment under review, this Tribunal has expressed a view which is contrary to what had been held in DVC judgment and that the two views are irreconcilable. In DVC judgment, this Tribunal had held that non-tariff disputes involving a generating company or a distribution licensee do not fall within the ambit of clause (f) of Section 79(1) of the Electricity Act, 2003, and are thus, arbitrable. What has been held in the judgment under review is that disputes with regards to the matters under clause (a) to (d) of

Section 79(1) but which do not relate to the regulatory functions of the Central Commission or impact tariff either directly or indirectly can either be adjudicated by the Central Commission or referred to arbitration. In other words, it has been held that disputes including those which fall within the ambit of regulatory functions of the Commission or which impact tariff either directly or indirectly are non-arbitrable notwithstanding an arbitration agreement in existence and the tests stipulated in Section 8(1) of the Arbitration and Conciliation Act, 1996 being satisfied, cannot be referred to arbitration.

24. It is thus, limpid that in the judgment under review, this Tribunal has only clarified or explained what had earlier been held in the DVC judgment. The judgment under review is only clarificatory in nature which explains the actual purport and connotation of the DVC judgment and clears the ambiguity with which it suffered. In no manner it can be said that the conclusion in the judgment under review contradicts the conclusion reached in the previous DVC judgment. In fact, we are of the opinion that the clarification so given in the judgment under review with regards to the findings in DVC judgment, ought to have been given in the DVC judgment itself but appear to have been escaped the attention of this Tribunal while writing that judgment.

25. Having said so, we must put on record our displeasure and disapproval about the manner in which the judgment under review characterizes final conclusion in Paragraph no.36 of the DVC judgment as a “stray sentence”. We have already extracted the said Paragraph no.36 of the DVC judgment. The contents of the said Paragraph reflect the final view of this Tribunal on the issue with regards to arbitrability of disputes between a generating company and a distribution licensee. By no stretch of imagination can its content be termed as “stray sentence”. If we take out Paragraph no.36 from the DVC judgment, the judgment would be inchoate and devoid of any final conclusion on the issue referred to in Paragraph no.1 of that judgment. Therefore, the judgment under review, in so far as it characterizes contents of Paragraph no.36 of the DVC judgment as a “stray sentence”, suffers an error apparent on the face of record, which error deserves to be rectified in this review petition. It would have sufficed if this Tribunal, in the judgment under review, was to observe that there is some ambiguity in Paragraph no.36 of the DVC judgment which needs to be explained.

26. In the light of above discussion, we hereby set aside the observations in the judgment under review that characterize the contents of Paragraph no.36 of the DVC judgment as a “stray sentence”. Apart from the same, we do not find any error apparent on the face of record in the judgment under review which may convince us to exercise the power of review under Order XLVII Rule 1 CPC.

27. The review petition is, thus, disposed of in above terms.

Pronounced in the open court on this the 17th day of September, 2026.

(Ajay Talegaonkar) Technical Member (Electricity)

(Virender Bhat) Judicial Member

REPORTABLE / NON-REPORTABLE

tp