### Doctrine of merger inapplicable to review orders rejecting specific issues; original order remains the appealable decree.

The Appellant (MSEDCL) and Respondent No. 2 (RPL) entered into two Power Purchase Agreements (PPAs) in 2010 for the supply of 1200 MW of power.

Due to MSEDCL not scheduling the entire available capacity, RPL sought to sell unscheduled power to third parties via Short Term Open Access (STOA), which MSEDCL rejected.

MERC, in its original order dated 27.02.2018 (Case No. 19/2017), ruled that RPL was entitled to sell un-despatched power to third parties provided it could resume supply to MSEDCL within two hours.

MSEDCL filed a review petition (Case No. 123/2018) challenging the Commission's jurisdiction and the exclusive right over contracted capacity.

On 24.10.2018, MERC passed the Impugned Order, rejecting MSEDCL’s primary contentions but adding a rider that third-party sales cannot be at a rate lower than the Energy Charge in the PPA.

MSEDCL appealed this review order to the Tribunal.

The Tribunal primarily applied Order 47 Rule 7 of the Code of Civil Procedure, 1908 (CPC), which stipulates that an order rejecting an application for review is not appealable.

It relied on the Doctrine of Merger, as interpreted in Kunhayammed v. State of Kerala (2006), which posits that a lesser order is absorbed by a greater one only when the subject matter is identical.

Furthermore, the Tribunal followed NTPC v. CERC (2013) and DSR Steel P Limited v. State of Rajasthan (2012), establishing that if a review petition raises distinct issues and some are rejected, the doctrine of merger does not apply to the rejected portions; the original order remains the operative decree for appeal purposes.

The Tribunal analyzed whether the review order dated 24.10.2018 modified the original order dated 27.02.2018 enough to trigger the Doctrine of Merger.

It found that MSEDCL’s appeal focused on the "entitlement" of RPL to sell power, a right established in the original 2018 order and merely reaffirmed in the review.

The Tribunal reasoned that the "rider" regarding the sale price (Energy Charge) added by the Commission did not constitute a "modification" of the original decision on entitlement because no such prayer was made by MSEDCL, and the core finding remained undisturbed.

Following the precedent in DSR Steel, the Tribunal held that since the review was rejected regarding the appellant's primary grievances (jurisdiction and exclusive rights), those specific findings did not merge into the review order.

Consequently, the original order of 27.02.2018 governed the field, and MSEDCL’s failure to challenge the original order was fatal to the appeal.

It ruled that because the Commission rejected the review regarding the 2nd Respondent’s entitlement to sell un-despatched power, the Doctrine of Merger did not apply to that issue, and the original order dated 27.02.2018 should have been the subject of the appeal.

Even if the review order were quashed, the original order would still bind the parties.

Appeal No. 100 of 2019 was dismissed.