Maharashtra State Electricity Distribution Company Limited vs Maharashtra State Electricity Regulatory Commission (MERC) & Ors

Court: Appellate Tribunal For Electricity
Case type: APPEAL NO.100 OF 2019
Decided on: 11-03-2026

<div> IN THE APPELLATE TRIBUNAL FOR ELECTRICITY (Appellate Jurisdiction) APPEAL NO.100 OF 2019 Dated : 11.03.2026 Present: Hon’ble Ms. Seema Gupta, Officiating Chairperson Hon’ble Mr. Virender Bhat, Judicial Member In the matter of: Maharashtra State Electricity Distribution Company Limited th Registered office at 4 Floor, Prakashgadh, Plot No. G-9, Anant Kanekar Marg, Bandra (East), Mumbai - 400051 … Appellant Versus 1. Maharashtra State Electricity Regulatory Commission (MERC) Through its Secretary th World Trade Centre, Centre No. 1, 13 Floor, Cuffe Parade, Mumbai – 400005, Maharashtra 2. RattanIndia Power Limited (RPL) Through its Managing Director Registered office at World Mark-1, Tower-B, 5th Floor, Aerocity, Indira Gandhi International Airport, New Delhi - 110037 3. Maharashtra State Load Dispatch Centre (MSLDC) Through its Secretary Registered office at Thane-Belapur Road, P.O. Airoli, Navi Mumbai – 400708 … Respondent(s) Counsel for the Appellant(s) : Anand K. Ganesan Anup Jain Nishtha Goel _________________________________________________________________________________ Appeal No.100 of 2019 Page 1 of 30 Ashwary Kathed Counsel for the Respondent(s) : Amit Kapur Vishrov Mukerjee Yashaswi Kant Ameya Vikram Mishra Raveena Dhamija Girik Bhalla Janmali Gopal Rao Manikala for Res. 2 J U D G M E N T PER HON’BLE MR. VIRENDER BHAT, JUDICIAL MEMBER 1. In this appeal, the appellant Maharashtra State Electricity Distribution Company Limited (in short MSEDCL) has assailed the order dated 24.10.2018 st passed by 1 respondent Maharashtra State Electricity Regulatory Commission (hereinafter referred to as the Commission) in the appellant’s review petition bearing case no.123 of 2018 seeking review of the Commission’s earlier order nd dated 27.02.2018 passed in petition filed by 2 respondent RattanIndia Power Limited bearing case no.19 of 2017. 2. Before discussing the rival contentions of the parties in this appeal, we find it necessary to advert to the brief background of the case hereunder: - 3. The Commission vide its order dated 07.05.2009 passed in case no.3 of 2009 had directed the appellant to conduct a competitive bidding process in line with Standard Bidding Documents (in short SBD) issued on 31.03.2006 by the _________________________________________________________________________________ Appeal No.100 of 2019 Page 2 of 30 Ministry of Power, Government of India, in consultation with the concerned stakeholders and in pursuance to the “Guidelines for Determination of Tariff by Bidding Process for Procurement of Power by Distribution Licensees” (in short “Bidding Guidelines”) issued by the Ministry of Power, Government of India on 19.01.2005, for procurement of 2000 MW power on long term basis. Accordingly, the appellant issued a Request for Proposal (in short RFP) for procurement of 2000 MW power on long term basis in Case 1 Stage 2 on 18.05.2009. nd 4. The 2 respondent participated in the bidding process and submitted its bid for supply of power from its power project located at Nandgaon Peth, Amravati District Maharashtra at a levelized tariff of Rs.3.260/kWh. Thereafter, nd Letter of Intent (LoI) was issued to 2 respondent for supply of 450MW power nd to the appellant. Subsequently, the 2 respondent submitted an offer to the appellant for supply of additional 750 MW power at the same levelized tariff of Rs.3.260/kWh. Two Power Purchase Agreements dated 26.04.2010 and nd 05.06.2010 came to be executed between the 2 respondent and the appellant for supply of 1200 MW aggregate power to the appellant at a levelized tariff of Rs.3.260/kWh for a period of 25 years. The first Power Purchase Agreement (PPA) was with regards to the supply of 450 MW power whereas the subsequent PPA is with regards to supply of 750 MW of power. _________________________________________________________________________________ Appeal No.100 of 2019 Page 3 of 30 5. The Commission adopted the levelized tariff of Rs.3.260/kWh vide order dated 28.12.2010 in case no.22 of 2010. 6. It appears that since the appellant MSEDCL was not scheduling the entire nd nd available capacity of the power project of the 2 respondent, the 2 respondent entered into a PPA dated 07.01.2017 with M/s Global Energy Private Limited (in short GEPL), a trading licensee, for sale of up to 15 MW power from its power plant. In pursuance to the said PPA, GEPL entered into an arrangement for sale of power with six different buyers between 01.02.2017 to 28.02.2017. These six buyers preferred applications for Short Term Open Access (STOA) on 08.01.2017 and 09.01.2017 which were rejected by the appellant vide e-mail dated 13.01.2017 sent to GEPL. nd 7. In these circumstances, the 2 respondent had approached the Commission by way of petition bearing case no.19 of 2017 on the following grounds: - “a. MSEDCL has rejected STOA in respect of the Power Sale Arrangement to third parties, contrary to Regulations 12.1 and 12.2 of the MERC (Distribution Open Access) Regulations (‘DOA Regulations’), 2016 and Article 4.5.3 of the PPAs. _________________________________________________________________________________ Appeal No.100 of 2019 Page 4 of 30 b. MSEDCL is obstructing/preventing sale of such unscheduled power. c. This will cause substantial and irretrievable loss to RPL.” nd 8. The 2 respondent had sought following prayers in its petition: - “ a) “Quash the communications dated 13.01.2017 issued by MSEDCL, refusing to grant permission for sale of available capacity not being scheduled; b) Direct, MSEDCL to grant Short Term Open Access to the Petitioner and/or purchasers of such unscheduled capacity in accordance with the Distribution Open Access Regulations; c) Direct MSEDCL to act in a reasonable and prudent manner and follow proper procedure allowing sufficient time period for recall of such unscheduled capacity;…”” 9. The petition was disposed off by the Commission vide order dated 27.02.2018 holding, inter alia , that: - _________________________________________________________________________________ Appeal No.100 of 2019 Page 5 of 30 “12. Thus, there is no express provision in the PPAs requiring RPL to obtain permission from MSEDCL to sell to third parties any of the contracted capacity that is available but not scheduled. However, such sale requires Open Access permission from MSEDCL under the DOA Regulations, 2016. MSEDCL is denying STOA permission stating that it is for power out of the generation capacity contracted with MSEDCL. Further, even if third- party sale through STOA is allowed, the PPAs require RPL to resume supply to MSEDCL, irrespective of its third-party sale arrangement, within 2 hours or other stipulated time (whichever is later). RPL is challenging the STOA denial, which amounts to denial of third-party sale; and wants a longer notice period when MSEDCL requires the power. Hence this Petition. 13. The scheduling and despatch of power under the PPAs is governed by the IEGC and the Scheduling and Despatch Code formulated under Regulation _________________________________________________________________________________ Appeal No.100 of 2019 Page 6 of 30 33 of the State Grid Code Regulations, 2006, which is referred to in the PPAs. While certain further revisions and reconciliations may take place, the Code essentially provides that MSLDC finalise the drawal schedule of Generators by 3 p.m. each day for the following day, based on a review of their Availability vis-a-vis the drawal schedules received from the Distribution Licensees. Hence, MSEDCL has argued that any third-party sale by RPL as a contracted Generator can be committed to, if at all, only on a day-to-day basis. 14. However, the Commission notes that, although there may be large variations in MSEDCL's seasonal demand, it is usually more or less uniform during any particular season, although there may be exceptions and other eventualities relating to the availability of generation from different contracted sources from time to time. Thus, MSEDCL would have, as it is expected to, a fair assessment of its demand at least over the next _________________________________________________________________________________ Appeal No.100 of 2019 Page 7 of 30 few days, weeks or even months, as well as the respective positions of RPL and other Generators in the MOD Stack. If that were not so, MSEDCL would not have been in a position to intimate zero scheduling for certain Units of RPL for some periods, a practice of MSEDCL which also provides greater certainty to stake-holders. 15. The PPAs allow sale of contracted power by RPL to the extent that it is not despatched. They also provide for sharing of gains between RPL and MSEDCL depending on the rate at which it is sold to third parties. The intention behind these provisions is the utilisation of contracted and available generation resources which are not presently required, with possible benefits to both parties. 16. The Commission is of the view, therefore, that, while the actual scheduling is finalised only a before daily, upon a reasonable and prudent assessment that the despatch of power by a _________________________________________________________________________________ Appeal No.100 of 2019 Page 8 of 30 particular Generator will not be required for some time, the Distribution Licensee shall allow the Generator to sell that power to third parties and provide Open Access for the purpose. The Commission directs MSEDCL to act accordingly in terms of the PPA provisions and such assessment. Depending on the rate of such sale, MSEDCL may also reap some benefit in the interest of its consumers. Although that cannot be the determining factor in terms of the PPAs, the Commission notes that, in some cases of third- party sale proposed by RPL, MSEDCL had in fact foregone this benefit by withholding STOA permission. 17. One of MSEDCL's concerns is that it would be impacted if the third-party sales are made its own consumers directly by RPL or through a Trader. The EA, 2003 and the DOA Regulations, 2016 provide some cushion to Distribution Licensees when Open Access is provided and do not _________________________________________________________________________________ Appeal No.100 of 2019 Page 9 of 30 envisage these concerns as a ground for denying Open Access. Moreover, in the present matter, STOA was denied even for Inter-State third-party sales proposed by RPL. 18. RPL seeks a longer notice period than provided in the PPAs to resume the supply of power to MSEDCL if it is required inspite of any earlier assessment to the contrary. However, the provisions of Article 4.5.5 can be relaxed only with mutual consent followed by the prior approval of the Commission, as stipulated in Article 15.3; and MSEDCL has not agreed to RPL's proposal. The Commission also notes that if, because of its third- party sale arrangements, RPL is unable to resume supply from its own generation within the stipulated time, Article 4.6 allows it do so for some period from alternative sources, but only at the contracted rate. 19. The price at which RPL sells the power to a Trader is unrestricted, but has to be declared to MSEDCL. That price is relevant to Article 4.5.3 of the PPAs. _________________________________________________________________________________ Appeal No.100 of 2019 Page 10 of 30 Moreover, the DOA Regulations, 2016 require that a copy of the Supply Agreement be furnished. The price at which the Trader sells the power to its buyers is also unrestricted, but has no nexus with the PPA provisions.” nd 10. The Commission, thus, held the 2 respondent entitled to sell power, out of the contracted capacity, to third parties to the extent of the available capacity which is not despatched by appellant MSEDCL while retaining its right to capacity charges for such un-availed capacity sold to third parties. 11. The appellant MSEDCL preferred review petition bearing case no.123 of 2018 before the Commission seeking review of the said order dated 27.02.2018. The prayers made in the review petition are extracted hereinbelow: - “a) Review the order dated 27.02.2018 passed in Case No. 19 of 2017 by allowing the present review petition. b) Declare that the contracted capacity under the PPA is the exclusive right of MSEDCL which under _________________________________________________________________________________ Appeal No.100 of 2019 Page 11 of 30 ordinary circumstances cannot be taken away under the guise of a third party sale; or in the alternative; c) Hold that this Hon’ble Commission had no jurisdiction to adjudicate upon a nontariff related issue arising out of the PPA.” 12. The review petition was disposed off by the Commission vide order dated 24.10.2018. 13. It appears that during the course of the proceedings of the review petition, the appellant had raised objection about the jurisdiction of the Commission in nd having entertained the petition of 2 respondent, it involving non-tariff dispute. The objection has been rejected by the Commission. On the issue of approval of sale of un-availed generation capacity to third parties under clause 4.5.3 of the PPA, the Commission reiterated its observations and findings as given in the previous order dated 27.02.2018. The relevant portion of the impugned order in this regard is extracted hereinbelow: - “13. As can be seen from above clause of the PPA, Third Party Sale is envisaged only at Energy Charge which is in excess of tariff payable by MSEDCL under the PPA. Also in case of sale to affiliate of RIPL, it cannot _________________________________________________________________________________ Appeal No.100 of 2019 Page 12 of 30 be lower than the tariff payable by MSEDCL. Thus, as per provisions of the PPA, Third Party Sale cannot be allowed at the rate lower than the Tariff (Energy Charge) Payable by the MSEDCL. Hence, the Commission is of the view that Third Party Sales allowed in impugned Order dated 27 February, 2018 can be permitted under following circumstances: a. Upon a reasonable and prudent assessment that the despatch of power by a particular Generator will not be required for some time, the Distribution Licensee shall allow the Generator to sell that power to third parties (as per para 16 of the impugned Order) . b. Third Party Sale cannot be at the rate lower than the Tariff (Energy Charge) Payable by the Distribution Licensee under the PPA. c. On intimation by the Distribution Licensee, within 2 hours, Generator shall commence supply of capacity to Distribution Licensee _________________________________________________________________________________ Appeal No.100 of 2019 Page 13 of 30 which was sold to Third Party (as per para 18 of the impugned Order). ” 14. The Commission has, thus, affirmed its previous order dated 27.02.2018 on this aspect and reiterated that upon a reasonable and prudent assessment that the dispatch of power by a particular generator will not be required for some time, the distribution licensee shall allow the licensee to sell that power to third parties and provide open access for that purpose, as the PPAs executed nd nd between appellant and 2 respondent allow sale of contracted power by the 2 respondent to the extent it is not despatched. However, the Commission added a rider to the effect that such third party sale of power cannot be at the rate lower than the tariff (energy charge) payable by the distribution licensee i.e. the appellant under the PPAs. The said order dated 24.10.2018 passed in the review petition of the appellant has been assailed in this appeal. 15. We have heard learned counsel for the appellant as well as learned nd counsel for the 2 respondent. We have also perused the impugned order as well as the written submissions filed by the learned counsels. 16. During the course of arguments, a legal objection has been raised on nd behalf of the 2 respondent to the maintainability of the instant appeal. It was nd argued by learned counsel for the 2 respondent that by way of the impugned _________________________________________________________________________________ Appeal No.100 of 2019 Page 14 of 30 order, the Commission has partly allowed review petition to the extent that third party sale cannot be at a rate lower than the energy charge payable by MSEDCL nd as per the PPAs while rejecting the challenge of 2 respondent to the order nd dated 27.02.2018 on the aspect of entitlement of 2 respondent to sell requisitioned power to third parties. It is submitted that the original order dated 27.02.2018 stood merged with the review order dated 24.10.2018 only on the nd aspect of the price for the sale of power to third parties by the 2 respondent nd and there has been no such merger on the aspect of entitlement of 2 respondent to sell un-despatched power to third parties, which stood decided by the Commission vide original order dated 27.02.2018. Thus, it is argued that the appellant ought to have filed the appeal against the original order dated 27.02.2018 on this aspect and the same having been filed against the review order dated 24.10.2018 is patently not maintainable. 17. Reliance is placed upon the judgment of this Tribunal in NTPC v. CERC 2013 SCC OnLine APTEL 151. 18. Per contra, it is argued on behalf of appellant that the original order dated 27.02.2018 was modified by the Commission vide review order dated 24.10.2018 and accordingly, the former stood merged in toto with the later and upon such merger, it is only the review order dated 24.10.2018 which was _________________________________________________________________________________ Appeal No.100 of 2019 Page 15 of 30 assailable by way of the instant appeal. Reliance is placed upon the judgment of the Supreme Court in Bussa Overseas & Properties (P) Ltd v. Union of India (2016) 4 SCC 696 to canvas that where the order passed in review recalls/modifies the main order and a different order is passed, definitely the main order does not exist and it is the order in review which affects the aggrieved party and is appealable. 19. We have considered the rival contentions and submissions of the learned counsels on this aspect of maintainability of the appeal. 20. Rule 7 of Order 47 Code of Civil Procedure, 1908 (in short CPC) specifically provides that an order rejecting the review petition is not appealable. 21. The case of the appellant is that its review petition has not been straightaway rejected by the Commission vide impugned order dated 24.10.2018 but has been partly allowed by modifying the main order dated nd 27.02.2018. On the contrary, the case of the 2 respondent is that the instant appeal has been preferred against the portion of the review order dated 24.10.2018 vide which the Commission did not find favour with the contentions nd of the appellant with regards to entitlement of the 2 respondent to sell un- despatched power to third parties, and therefore, the instant appeal has clearly _________________________________________________________________________________ Appeal No.100 of 2019 Page 16 of 30 been filed against the order of rejection of the review petition which is not maintainable. 22. It is manifest from the prayers made by the appellant in the review petition before the Commission, as already extracted in Paragraph No.11 hereinabove, that the appellant wanted the Commission to declare that contracted capacity under the PPA is its exclusive right which cannot be taken away under the guise of third party sale and in the alternative, hold that the Commission had no jurisdiction to adjudicate upon a non-tariff related issue arising out of the PPA. 23. We have already noted in Paragraph No.13 hereinabove that both these contentions of the appellant in the review petition have been repelled by the Commission vide review order dated 24.10.2018. The Commission has only attached a rider to the effect that third party sale cannot be at the rate lower than the energy charge payable by the distribution licensee under the PPA. 24. What appears to us is that when the Commission rejected the review nd petition on the aspect of entitlement of the 2 respondent to sell un-despatched power to third parties, such rejection is nothing but reiteration of the rejection of appellant’s case on this aspect made already in the original order dated 22.02.2018. We are also of the opinion that mere putting a rider in the review nd order with regards to the rate at which third party sale can be made by the 2 _________________________________________________________________________________ Appeal No.100 of 2019 Page 17 of 30 respondent does not tantamount to modification of the original order dated 27.02.2018, as no such prayer was made by the appellant in the review petition and the said rider does not in any way affect the original decision of the nd Commission on the main agitated aspect i.e. entitlement of 2 respondent to sell un-dispatched power to third parties. Therefore, the impugned review order dated 24.10.2018 does not attract the Doctrine of Merger at all. 25. Even if we assume for the sake of arguments that putting rider in the nd review order dated 24.10.2018 with regards to price at which the 2 respondent could sell un-despatched power to third parties has the effect of modifying the original order dated 27.02.2018, in that case also we are of the firm opinion that the Doctrine of Merger does not apply and it is the original order dated 27.02.2018 which was appealable. This is for the following reasons. 26. The logic behind the Doctrine of Merger is that there cannot be more than one order or decree governing the same subject matter at a given point of time. In Kunhayammed and Ors v. State of Kerala 2006 (6) SCC 359 the Supreme Court has explained the definition of “Merger” as under: - “42. “To merge” means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the _________________________________________________________________________________ Appeal No.100 of 2019 Page 18 of 30 absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up as to involve a loss of identity and individuality”. 27. The issue related to Doctrine of Merger had come up before this Tribunal in NTPC v. Central Electricity Regulatory Commission appeal no.88 of 2013 decided on 02.12.2013 (2013) SCC OnLine APTEL 151. Facts of that case are almost similar to the instant case. In that case, the Central Commission had disallowed four of the claims of NTPC in the main order and with regards to those four claims, the appellant NTPC had filed a review petition. In the order passed on the review petition the Central Commission allowed two of those claims but rejected the other two claims thereby confirming its findings on those two claims in the main order. Against the rejection of those two claims, NTPC filed appeal against the review order. Objection was taken on behalf of the respondent Commission to the maintainability of the appeal against the review order partly rejecting the review petition saying that the appeal was not maintainable in view of Order 47 Rule 7 CPC. This Tribunal held the appeal as not maintainable for the following reasons: - _________________________________________________________________________________ Appeal No.100 of 2019 Page 19 of 30 “15. According to the Respondent, since the prayers in relation to issues at (i) and (ii) were rejected in the Review Order the Appeal against the said order in respect of those issues is not maintainable in view of the provisions of the Order 47 Rule-7 of the Civil Procedure Code. 16. There is no dispute in the fact that in respect of issue No. (i) and (ii), the Central Commission rejected the claim both in the main order dated 23.5.2012 as well as the Review Order dated 8.2.2013. 17. As observed by the Hon’ble Supreme Court in the case of Municipal Corporation of Delhi v Yashwant Singh Negi, 2013 (5) SCALE 447 once the Court has refused to entertain the Review Petition and the same was dismissed confirming the main order, there is no question of any merger and the aggrieved person has to challenge the main order and not the order dismissing the Review Petition because on the dismissal of the Review petition, the principle of merger does not apply. _________________________________________________________________________________ Appeal No.100 of 2019 Page 20 of 30 18. If this is the principle which has been laid down by the Hon’ble Supreme Court then we have to deal with situation whether Review Order was partly allowed in respect of some of the issues and partly disallowed in respect of other issues. 19. The question is whether the doctrine of merger would apply to the cases where the rejection of particular issues in the main order has been confirmed in the Review Order. 20. In this context, it would be appropriate to refer to the principles laid down on this issue by the Karnataka High Court in the case of Kothari Industrial Corporation Ltd., V Agricultural Income Tax Officer, ILR 1998 Karnataka 1510. 21. As per this decision rendered by the Karnataka High Court, when the subject matter of the order of the lower court is the same, as of the subject matter of the order of the Appellate Court, the order of the lower Court gets merged with the order of the Appellate Court so that there is only one order holding the field. But, if the order of the _________________________________________________________________________________ Appeal No.100 of 2019 Page 21 of 30 subordinate authority related to the several distinct issues and the Appeals are reviewed, is filed only in regard to one or few matters, then there cannot be merger of the entire order of the lower court with the order of the Appellate Court. In that event what will merge in the order of the Appellate Court is not the entire order of the lower court but only that part of the order which relates to the subject matter of the Appeal. 22. On the basis of these observations, the High Court has laid down the principles with regard to doctrine of merger. They are as follows: (a) Where any order of decree of a Court, authority or Tribunal is subjected to an appeal or revision and the appellate or revisional authority passes an order modifying, reversing or affirming the original order, the original order merges with the order of the superior authority on the principle that there cannot be more than one order operating at the same time. _________________________________________________________________________________ Appeal No.100 of 2019 Page 22 of 30 (b) If the Appeal or Revision is restricted to a delinkable part or portion of the original order or one of the several matters or issues dealt by the original order, then, only that part of the original order which is the subject-matter of the appeal or revision will merge in the order of the superior authority and the remaining portion of the original order which is not subjected to appeal or revision will remain undisturbed. (c) Where the Appellate authority has given plenary jurisdiction over the entire matter dealt with by the original order, irrespective of the fact whether Appeal is filed in regard to the entire matter or part of the matter, the entire original order will merge in the order of the Appellate Authority. However, where such appellate authority entrusted with plenary jurisdiction consciously restricts the scope of scrutiny to only a part of the original order, then, whether only that part of the original order which is subjected to scrutiny and not the entire order will get merged with the order of the appellate authority, is a matter on which there is _________________________________________________________________________________ Appeal No.100 of 2019 Page 23 of 30 divergence of views. The view of this Court in such cases has been that the merger will be in respect of the entire order. (d) There will be no merger at all where the subsequent order is passed by the same authority, either by way of review or rectification. Where an order is passed on review, the original order gets wiped out as it is set aside by the order granting review and is superseded by the order made on review. There is thus no 'merger' where an order is passed rectifying any mistake in the original order; there is neither 'merger' nor 'supersession'. The original order gets amended by the order of rectification by correcting the error." 23. These principles would make it clear that the purpose of doctrine of merger is to ensure that at one time, one order is operative. This means that part of the order which is not the subject matter of the Appeal cannot be said to have merged with the order passed by the Superior Court. _________________________________________________________________________________ Appeal No.100 of 2019 Page 24 of 30 The said principle would apply even in the case of Review. This is because while the Doctrine of Merger is applicable in case of an Appeal or Revision even if the same is dismissed by the Superior Court, the Doctrine of Merger will not be applicable in the event, the Review is rejected. 24. This principle has been quoted in the judgment of Hon’ble Supreme Court in the case of DSR Steel P Limited v State of Rajasthan (2012) 6 SCC 762. The following is the observation: 25.2. 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 is 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 _________________________________________________________________________________ Appeal No.100 of 2019 Page 25 of 30 is effective for the purpose of a further appeal, if any, maintainable under law. The decision of this Court in Manohar v Jaipalsing in our view, correctly, settles the legal position. The view taken in Sushil Kumar Senv. State of Bihar and Kunhayammed V State of Kerala, wherein the former decision has been noted, shall also have to be understood in that lights only. 25. So, the above observation of Hon’ble Supreme Court, the Doctrine of Merger in the case of Review will be applicable only to the subject matter of the Review and the same will not be applicable if the Review is rejected in respect of the said subject matter. 26. In other words, if the Review Petition raises several distinct issues and the some are rejected, the Doctrine of Merger in so far as the issues which were rejected in the Review Order will not have any application. If this is applied to the present case, then we are constrained to hold that _________________________________________________________________________________ Appeal No.100 of 2019 Page 26 of 30 the present Appeal as against the Review order in respect of these issues is not maintainable in view of the fact that the issue has been decided in the main order itself. 27. So, it would be appropriate for the party only to file the Appeal as against the main order and not against the rejection of the order passed in the Review Petition.” 28. It is to be noted that in the above judgment, this Tribunal has relied upon the previous two judgments of the Supreme Court in Municipal Corporation of Delhi v. Yashwant Singh Negi 2013 (5) SCALE 447 and DSR Steel P Limited v State of Rajasthan (2012) 6 SCC 762. 29. Therefore, it is a settled principle of law that when the review petition raises several distinct issues and some of them are rejected, the Doctrine of Merger will not have any application with regards to the issues which were rejected and applies only to the issues which were allowed in favour of the review petitioner. 30. In the instant appeal, the appellant has laid challenge to the review order dated 24.10.2018 on the following grounds: - _________________________________________________________________________________ Appeal No.100 of 2019 Page 27 of 30 (a) Prior permission of the distribution licensee is mandatory in terms of Section 42(3) of the Electricity Act, 2003 read with Article 4.4.2 of the nd PPA for sale of un-despatched power by the 2 respondent to third parties; (b) sale of power to persons other than the distribution licensee can only be on day-to-day basis and not on periodic basis such as Short/Medium Term Open Access; (c) power generated using subsidized coal cannot be sold through Short/Medium Term Open Access; (d) The Commission has not considered the resultant change being caused in the demand and supply ratio of the appellant by permitting sale to the other persons through open access; nd (e) The impugned order fails on the test of balance of convenience as 2 respondent is deriving double benefit to the prejudice of MSEDCL; (f) The State Commission is not empowered to permit third party sale of un-despatched contracted capacity of power, if the supply is not to end user/consumer; (g) The Commission has not considered the utilization of off-peak season’s unused coal during peak season. _________________________________________________________________________________ Appeal No.100 of 2019 Page 28 of 30 31. Therefore, clearly, the appeal is confined to the aspect of entitlement of nd the 2 respondent to sell un-dispatched power to third parties, which aspect nd was decided by the Commission in favour of the 2 respondent vide original order dated 27.02.2018 and was affirmed in the review order dated 24.10.2018. The prayer in this regard made by the appellant in the review petition stood rejected by the Commission in the review order dated 24.10.2018. Thus, patently the instant appeal is against the review order in respect of the issue which stood rejected and therefore is not maintainable in view of the fact that the issue had already been decided in the main order dated 27.02.2018. 32. There is another aspect also of the case. Assuming that we hold the instant appeal maintainable and upon final hearing allow the same, the result would be that the review order dated 24.10.2018 will stand quashed. That will be of no help to the appellant at all for the reason that the setting aside of review order dated 24.10.2018 will have no impact upon the main order dated 27.02.2018 and the same would continue to hold the field between the parties. This is in view of the fact the review order dated 24.10.2018 is mere reiteration of what was observed by the Commission in the main order dated 27.02.2018 nd on the aspect of entitlement of 2 respondent to sell un-despatched power to third parties. Therefore, the rights and obligations of the parties on this aspect would continue to be governed by the said main order dated 27.02.2018 despite _________________________________________________________________________________ Appeal No.100 of 2019 Page 29 of 30 setting aside of the review order dated 24.10.2018. Hence, it was all the more required of the appellant to assail the main order dated 27.02.2018. That having not been done, the instant appeal is patently not maintainable. Conclusion: 33. In view of the foregoing discussion, we hold that the instant appeal, having been filed against the rejection of the review petition, is not maintainable as provided under Order 47 Rule 7 CPC. Thus, the appeal stands dismissed as such. th Pronounced in the open court on this the 11 day of March, 2026. (Virender Bhat) (Seema Gupta) Judicial Member Officiating Chairperson ✓ REPORTABLE / NON-REPORTABLE tp _________________________________________________________________________________ Appeal No.100 of 2019 Page 30 of 30 </div>