CASE NO. 7 & 8 of 1997
ORDER No.005 DATED 3rd MAY, 1997

Shri A. R. Mohanty, Member
Shri D. K. Roy, Member

In the matter of application for review filed by M/s Indian Charge Chrome Limited Bomikhal, Bhubaneswar.

M/s Indian Charge Chrome Limited - Petitioner

For the Petitioner:
Ms. Anuradha Dutt, Advocate,
Shri S. K. Nanda, Advisor

For the affected party:
Shri B.P. Rekhani, S.E.(Commerce), GRIDCO.

1. This proceeding relates to a petition filed on 20.03.97 by M/s Indian Charge Chrome Limited seeking clarification and/or modification and/or review` of Order No.009 dt. 12.03.97 passed in Case No.4 of 1997 under section 26 of the Orissa Electricity Reform Act 1995. The petitioner also requested for stay of operation of the aforesaid order of the Commission. The objection of the petitioner is specifically with reference to paragraphs 11.3(9) and 11.4 of the aforesaid said order dt.12.03.97.

2. The petition was fixed for hearing to determine whether stay should be granted regarding implementation of the order dated 12.03.97 passed by the Commission approving tariff for all type of electricity consumers in Orissa and whether the review petition was admissible. In the hearing on 13.04.97 the Commission observed that at the outset, it would have to decide whether the prayer made in the petition comes within the scope of review. The commission decided that arguments would have to be adduced by the petitioner in support of the claim that the prayer came within the scope of review jurisdiction of the Commission, consequently the commission directed that a notice should be issued to GRIDCO and to the Govt. of Orissa, Department of Energy, as affected parties and the petitioner would be heard on the question of admission and stay on 15.04.97. The hearing on these issues took place on 15th April 1997. Elaborate arguments were made by the learned Advocate of the petitioner Ms. Anuradha Dutt.

3. The brief facts relating to the petition are as follows. In response to tariff application filed by GRIDCO for the financial year 1997-98 the Orissa Electricity Regulatory commission passed an order under section 26 of the OER Act, 1995 on 12.03.97 to be effective from 01.04.97. This order was passed through an elaborate procedure including a notice in newspapers and a public hearing in which 24 objectors were admitted for personal hearing. The said order under Section 26 of the OER Act, 1995 prescribes charges for supply of electricity as well as transmission tariff and other charges for all category of consumers in the State of Orissa .The transmission tariff was dealt at paragraphs 11.3(9) and 11.4 which read as under:

TRANSMISSION TARIFF: The Transmission Tariff for Transmission of power at 132KV/220 KV shall be as follows:-
(a) Out of Energy supplied to GRIDCO for transmission, 7.5% of the energy shall be deducted towards Transmission Loss and balance energy delivered at the delivery point at 132 KV/220 KV.

(b) A Transmission charge @ 40 paise/unit on the energy received for transmission.

Transmission Tariff : GRIDCO's application proposes a transmission tariff of 30 paise per unit after allowing, the loss of 7.5% for the extra high voltage system. It is estimateted that the marginal cost of EHT service excluding loss during the financial year 97-98 shall be about 37 paise per unit. The charge based upon marginal cost will promote efficiency in the use of the system and existing new users on transmission service should pay a charge equal to atleast the marginal cost of providing the service. In addition, all users of GRIDCO system should make some contribution to the cost of non-technical losses on the system until these losses are brought under control. Based upon these considerations the Commission have decided to set the transmission tariff at 40 paise/kWh which is slightly more than the marginal cost of providing the service loss of 7.5% as applied for.

4. The review petition is with specific reference to the aforesaid paragraphs. The petitioner has stated that it is a licensee with the main objective of engaging in the business of procurement, transmission and bulk supply of electricity energy. Giving the historical perspective the petitioner stated that to mitigate the difficulty of the industry due to power shortage and power restrictions in the state, Indian Metals and Ferro Alloys Company obtained a licence to put up a 120 MW captive power plant at Talcher to meet the power requirement of the proposed Charge Chrome Plant and also to supply power requirement of its Ferro Alloys Complex at Therubali in Koraput District. The licence and permission for the Ferro Alloys Furnace and the power plant were transferred by IMFA to its subsidiary company ICCL which latter on became an associated company of the IMFA group. The company thereafter set up a coal based captive power plant of 2 x 54 MW with the concurrence of the Govt. of Orissa which not only granted permission to set up the plant but also permitted them to supply surplus power to the State Electricity Board. As a captive power plant, the company aims to supply power to its factory at Choudwar and another factory of the group at Therubali through the grid system of Orissa State Electricity Board. The arrangement was that after availing of power for its own plant at Choudwar, the company would deliver the remaining power to the transmission system of OSEB at Choudwar and OSEB would supply equivalent quantum of electrical power to IMFA industrial complex at Therubali after deducting the wheeling charges.

5. Initially it was decided that 20% of the energy delivered to the power transmission system at Choudwar would be adjusted by the Board towards wheeling charges and transmission loss and the Board should deliver the balance of 80% of energy received to Therubali units of IMFA at 132 KV at a power factor not less than 90%. This was decided on 14th February 1989 as a result of tripartite agreement among OSEB, ICCL and IMFA. On 30.10.90 the OSEB renamed the term "wheeling charge" as "transmission incidence" and proposed to reduce the percentage of the same to 5% from the date of revised tripartite agreement. Apparently the revised agreement was not entered into. The OSEB charged 5% till this was revised to 10% by their letter dated 23.06.93 in pursuance of Deptt. of Energy letter No. 21120 dtd. 20.11.92. By Govt. resolution dated 9th November. 1992 issued under No. 20896-E, the "wheeling charges" was refixed at 15% of the energy delivered to OSEB. On 20.11.92, the Govt. of Orissa wrote to the Chairman of OSEB that the Govt. had accepted recommendation of a committee and had accordingly decided that while subsisting agreements would not be affected by the recommendation, every case in future will be examined on case by case basis and transmission incidence shall be fixed subject to a minimum of 10%. On 23.06.93, the OSEB changed the method of calculation of the wheeling charges in pursuance of Department of Energy Letter No.21120 dt. 26.11.92 with effect from 01.12.92. A Government resolution dated 13.09.93 (issued under No.19119) titled "New policy for direct sale of power by captive power plant to other industries" reiterated rated the wheeling charges fixed in Govt. resolution dated 09.11.92 quoted earlier.

6. The petitioner has stated that the Govt. of Orissa continues to be vested with power to issue policy directives and hence, even though the Orissa Electricity Reform Act, 1995 has come into force the rights conferred on the petitioner to supply electricity and to pay "wheeling charges" at the rate fixed by the Govt. of Orissa in their Resolutions dated 09.11.92 and 13.09.93 remains operative. It Was claimed that the OERC should have taken into account these facts and should have excluded the transaction between M/s ICCL and GRIDCO, successor of OSEB, from the scope of its order relating to transmission tariff. According to the petitioner, the captive power plant should have been given special consideration for concessional rates on transmission charges/wheeling charges in view of the Govt. policy directives. The petitioner has prayed that the commission should either give the clarification that the transmission of 40 paise/Kwh shall not be applicable to it or alternately, the Commission should review its order to the extent that 11.3(9) does not apply to it. The Grid Corporation of Orissa filed a counter affidavit and presented its views through its representative Shri B. P. Rekhani, S.E.(Commerce).

7. It has been claimed by the Grid Corporation of Orissa that the application for review filed by the applicant is not maintainable as no error of law or fact is apparent on the face of the record. The GRIDCO has claimed that with the enactment of OER Act,1995 which came into effect on 1st April, 1996, any special right, concession privilege enjoyed by the applicant prior to that date automatically gets discontinued with effect from 1st April 1996 the Orissa Electricity Regulatory Commission alone has the power to prescribe tariff and the alleged directives issued by the State Govt. prior to the enactment of OER Act are no more valid and enforceable. Such alleged direction of the state Govt. is automatically superseded by the order dated 12.3.97 of the Hon'ble Commission. It was also claimed by GRIDCO that tariff cannot be considered as a policy matter and can be fixed only and solely in accordance with the provisions of the Section 26 of the OER Act. GRIDCO has referred to the public notice issued by the OERC on 02.02.97 inviting objection from all parties .The notice inter-alia affected stated "besides rates and charges, the proposal of Grid Corporation of Orissa Limited also indicates details regarding ………………transmission charges". This notice was published in daily newspapers and full details of the GRIDCO's proposal was made available to the public for presentation of their cases before the OERC. The revenue from transmission tariff forms a part of the expected aggregate of revenue from charges which a licensee is permitted by OERC to recover. Accordingly all facts were presented before the Commission which have considered them and given their decision in the matter. As no new fact has come to light, the commission order is not liable for review. The other aspects of GRIDCO's affidavit are not very relevant to the determination of issues raised by the petitioner M/s ICCL .The State did not appear and support the contention of the petitioner even after a notice was suo moto issued on it by the Commission.

8. We have examined the facts stated in the petition and the averments by the learned counsel. It was admitted by the petitioner that the case has to come within the parameters set forth under order XLVII Rule 1 of Civil Procedure code so as to be eligible for admission before the commission. The learned counsel took us through Rule-1 of order XLVII of Civil Procedure code. She stated that no appeal has been preferred by the petitioner, and therefore as an aggrieved party, the petitioner was entitled to apply for review of the judgment. While it was admitted that there has been no discovery of any new and important matter of evidence, it was claimed that review jurisdiction was attracted on the ground of mistake or error apparent on the face of record and even otherwise there was special reason for the petitioner to obtain review of the order passed by the Commission.

9. To substantiate her claim regarding mistake/error apparent on record the learned counsel's main thrust of argument was that the Commission has ignored operative policy directives on supply of power and wheeling charges issued by Govt. of Orissa and omission to consider such material evidence tantamounts to mistake liable for review. In support of her pleadings, she cited following judgments:

  1. State of Madhya Pradesh and other Vrs. Jaswantpuri and others, AIR 1989 MP 115

  2. Md. Sultan Zargar Vrs. Custodian General E.P., AIR 1960 J & K 125

  3. Hadi Das Vrs. Collector, Cuttack 61 (1986) CLT 680 (Orissa)

  4. Ranjit Singh Etc. Etc. Vrs. Union of india (1981) 1 SCR 848

  5. A.P. Sharma and others Vrs. A.T. Sharma and others, AIR 1968 Maipur 74.

Before we proceed to examine the applicability of ratio of these cases, it would be appropriate to analyse the significance and relevance of the claim that subsisting and valid policy directives have been ignored.

10. The arguments advanced by the Petitioner can be briefly stated as follows. The Govt. of Orissa had the power under Section 78-A of the Electricity (Supply) Act to issue policy directives. A similar right to issue policy directives is also vested by Section 12(1) of the OER Act 1995. In exercise of the right vested under the (Supply) Act, 1948 Govt. of Orissa had issued policy directives by way of resolutions dated 09.11.92 and 13.09.93 rate of wheeling charges to be charged by OSEB. The Govt. resolution have not been superseded and hence right of getting energy transmitted by GRIDCO on payment of the same rate continues even after coming into operation of the OER Act 1995. It is claimed that if aforesaid policy resolution had been taken into consideration, the Commission would have excluded the petitioner company from applying the transmission charges determined in its order dated 12.03.97. It is alleged that non-consideration of the Government resolutions has resulted in ignoring material facts and thus the order dated 12.03.97 has become erroneous and liable for review.

11. The contention of the petitioner will need examination of the legality, continuity and binding nature of rate of wheeling charges decided by the Govt. of Orissa and decision as to whether it represented Government's policy directive and if so, whether such policy directive was compatible with and valid after coming into force of the OER Act, 1995.

12. The Electricity (Supply) Act. 1948 did not confer any power on the Govt. to fix any type of tariff or charges. This is admitted by the petitioner who has claimed that wheeling charges was different from tariff and the Govt. of Orissa was within its competence to fix the wheeling charges in exercise of its power to issue policy directives. The Govt. has not been impleaded by the petitioner as a party and there has been no representation by the Govt. even through a notice was issued suo moto to the Govt. by the commissions. Hence on the basis of available facts and evidence, we have to take a view regarding the Govt. Resolutions dated 09.11.92 and 13.09.93.

13. We are unable to find any legal authority under Electricity (Supply) Act, 1948 or any other legal authority under which Govt. of Orissa could have fixed wheeling, charges or any charge for that matter. The authority for financial and commercial aspects vested solely with OSEB which was a statutory body while Govt. could issue certain policy directives. The Govt. was obviously conscious of this when on 13th April, 1984 it approved the ICCL proposal to feed surplus power from its captive power plant to the OSEB grid system with following words.

"The Govt. have no objection in principle to your above proposal provided however that the proposal is technically feasible and mutually acceptable and also subject to finalisation of commercial terms to the satisfaction of the Orissa State Electricity Board and the State Govt."

14. The commercial terms on wheeling charges initially decided on 19.02.89 at 20% of energy transmitted was done by agreement with OSEB with no participation From the Govt. of Orissa. Subsequently however, the Govt. has intervened, fixed the charges, revised the methods and incorporated them in Govt. resolution. No authority or provision of law has been mentioned either by the Govt. or by the petitioner and hence we have to infer that there has been no specific legal authority for fixing rate of wheeling charges. but the Govt. while issuing policy directives on encouraging private sector in power generation has fixed the rate of wheeling charges for transmission of surplus power from captive power plants. This leads us to inter that the petitioner was not vested with right flowing from any legal provisions under the (Supply) Act. 1948 though it enjoyed the facility to get energy transmitted at a rate/cost fixed by the Government on the strength of Govt. of Orissa resolution. It is necessary to analyse the legal implications of the resolutions dated 09.11.92 and 13.09.93 to determine whether the facility to enjoy a specified rate of wheeling charges conferred by the State Govt. shall continue to be valid and operative under the OER Act. 1995. But before we do so the legal perspective of the Act may be indicated.

15. The Orissa Electricity Reform Act, 1995 is a watershed in legislation on economic sphere in the state of Orissa. The legislature has mandated complete restructuring of electricity industry to rationalise all aspects of the industry, to create condition congenial to participation of private entrepreneur and for taking measures conducive to the development and management of the industry in the state in an efficient, economic and competitive manner. The electricity industry has entered a new era in which Govt. Of Orissa is committed to allow the operators to manage and run enterprises on healthy commercial principles without any interference as would affect the efficiency and economy and which would be regulated only by an autonomous Regulatory Commission. In pursuance of objectives and provisions of the Act the OSEB has given way to Grid Corporation and Orissa Hydro Power Corporation. The Govt. has entered into corporation agreement with these two entities guaranteeing their financial and managed autonomy. The powers, procedures and parameters of licence and fixation of tariff including transmission tariff have been specifically and elaborately laid down in the OER Act, 1995. The laws relating to tariffs and charges set forth in Chapter VIII of the Act do not permit any special treatment to any category of persons, any exception and exclusion from the purview of tariff schedule to be approved by the Commission under Section 26(4) of the Act. It does not contemplate of any special entity as would carry forward legacy of a vested right from the pre-reform era when OSEB was as a monopoly "utility" and Govt. had been exercising its unspecified prerogative by control and interference in the Electricity Board including in the matter of transmission tariff. The Govt.'s power regarding issue of policy directives has been qualitatively altered as would be manifest on a plain reading of the provisions of the Electricity (Supply) Act, 1948 and the OER Act, 1995. Section 78-A of the Electricity (Supply) Act, 1948 reads as under:

78-A Directions by the State Govt. - (1) In the discharge of its function Board shall be guided by such directions on question of policy as may be given to it by the State Govt.

The corresponding provision in the OER Act, 1995 reads as below:

"12(1) The State Govt. shall have the power to issue policy directives on matters concerning electricity in the State including the overall planning and coordination and all such policy directives shall be consistent with the objects sought to be achieved by this Act".

Thus, in the OER Act, 1995 the Government's power regarding policy directives have been circumscribed with specific stipulation that the directives shall be consistent with the objects sought to be achieved by the Act. The objects of the Act are ingrained in the Preamble to the Act. Thus, with effect from coming into force of OER Act, 1995 Govt. policy directives which are not consistent with the objectives have no legal standing.

16. In the above background we have to determine the crucial issue as to whether rate of wheeling charges specified in state government resolution dated 9.11.92 shall continue to be valid and operative under the OER Act, 1995. The govt. resolution didn't manifest any intent to create subsidy for any class. The motivation for order appears to be the condition existing in 1992-93 that an insufficient quantity of power was available to permit the operation and or expansion of industrial activities in the State and the absence of "clear guidelines regarding transmission, wheeling and tariff " meant that "some industries were not augmenting their generating capacity". The CPPs were allowed to sale power to the OSEB and to the third parties at a rate not less than the price offered to OSEB. Though the Govt. order also specified the wheeling charges for transmission of electricity, the charges were not the crux of the State policy.

Some of the points of significance to note are as below:

a) The concept of transmission tariff has come into being for the first time in the OER Act, 1995 as a corollary to the legislative enactment that under the said Act it would be necessary to obtain license for transmission also whereas till then license was required only for supply of electricity. Thus there was no legal authority under earlier provision of law for transmission tariff. Hence, the charges for wheeling and the rate of the same were not flowing from any legal authority vested in the govt. It was apparently case-specific decision issued under executive powers of the Government. Similar methods were applied earlier by the Govt. in case specific decisions. The legal position in a similar case relating to ONGC which went up to the Supreme Court is as follows. In the case of ONGC vrs. Association of ONGC (AIR 1990 SC 1851) some industrial undertaking had entered into contracts with the ONGC for supply of natural gas to them for a fixed period. When the contracts were entered into, the Central Government had no power to fix price. In this way, they were commercial contracts pure and simple between the Corporation and private parties. After the contract period was over new contracts were entered into from time to time and prices were also raised. The industries challenged the said action by filing Writ Petitions in the High Court of Gujarat. The High Court allowed the petitions. The Corporation approached the Supreme Court. The apex Court held that ONGC cannot be said to be a public utility undertaking and, therefore, it was necessary that price must be fixed on 'cost plus' basis only . The Court ruled that ONGC had power to revise price of gas and the undertakings were not entitled to demand supply as of right without contracts.

b) Further, in the perspective stated in paragraph 15, it is clear that the Govt. policy with regard to electricity had dramatically changed. Govt. has power to make policy on any subject as and when it likes. However the policy is not immutable. It is perfectly within the competence of the Govt. to change it, rechange it, adjust it and readjust it and withdraw it from time to time according to the compulsion of the circumstances and imperatives of public purpose. Policy as reflected in the Act of a later date has to prevail over policy state statements issued earlier. After the OER Act, 1995 the authority for pricing and license relating to transmission of electricity reside with the OERC. The schedule of tariff and charges for all customers are to be determined by the OERC in accordance with provisions specified in Chapter VIII of the Act. If we were to accept the claim of the petitioner that under government resolution the petitioner company has to be exempted from payment of tariff which the OERC determines as just and reasonable and has to be allowed some other tariff, the necessary consequence of this will be indirectly subsidising the petitioner company. This is not permissible under Section 12(3) of the OER Act, 1995 as long as the Government does not bear the cost of the subsidy.

c) The State Govt. has not issued any policy directive under the OER Act, 1995 and the policy directives which were issued earlier will cease to be valid if they are not consistent with the provisions of the OER Act, 1995.

It thus appears that the Govt. resolutions issued dated 09.11.92 and 13.09.93 prior to coming into force of the OER Act, 1995 did not vest any right on the petitioner so as to exempt it from the tariff schedule now decided by the Commission and that in any case the Govt. resolution which is inconsistent with provisions of law on tariff as well as on Government's comparatively limited right under the OER Act, 1995 to issue policy directives cannot be implemented.

17. It is also evident that significant issues have to be resolved and elaborate reasoning have to be gone into with a view to resolve issues arising out of the petition. Some of the important issues which need to be resolved are as below:

(a) Whether the Govt. of Orissa was within its legal competence to fix wheeling charges/transmission incidence and any charge for that matter when tariff fixation was beyond the purview of the Government.

(b) Whether the rate of wheeling charges was a matter of Govt. policy.

(c) Whether Govt. policy directive and rates fixed in a power scarcity situation will continue to be operative in a power surplus situation.

(d) Whether after coming into force of the OER Act, 1995 when the power to fix tariff and all aspects of regulation of the electricity industry have been vested with the OERC, any tariff fixed by the Govt. prior to coming into force of the Act would not be repugnant to the provision of law and particularly of Chapter VIII of the OER Act, 1995.

There are other intricate issues also which need to be resolved if the transmission tariff fixed by the Commission on the basis of financial principles incorporated in the OER Act. 1995 has to be modified. It is well settled that an error which has to be established by 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 (Satyanarayan Vrs. Malikarjun A 1960 SC 137).

18. It will be relevant to briefly examine the facts of cases cited by the learned Advocate and determine applicability of ratio of these cases to the present case While citing the case at AIR 1989 MP - 115, the learned counsel invited our attention to the observation of the judges that the court may reopen its judgement if a manifest wrong has been done and it would be necessary to pass an order to do full and effective justice. It was also observed that omission of the Court to consider and apply its mind to a material provision of law is an error apparent on the face of record. In the cited case a notification providing time limit was referred to by the party, but not considered by the Court, and therefore, the order was held to suffer from mistake apparent on the fact of the record. In the instant case, the petitioner did not raise any objection or provide any evidence or paper before the Commission even though the public notice published in newspapers inviting objection referred to transmission tariff. Hence the question of omission to consider and apply its mind to a relevant evidence did not arise. In AIR 1960 J & K - 125 our attention was drawn to the observations that if a judgement or order does not effectively deal with and determine an important point on which the decision of the case is to depend and the omission appears on the face of the judgement or order the judgement or order could well be reviewed. It was also stated in the head note of the said judgement that if an obvious error of material fact appears on the face of the record it can be a valid ground for review. This citation seems to be quite inappropriate as the Commission has not failed to effectively deal with and determine any material fact. All the facts and issues raised before the Commission have been dealt elaborately and with sufficient reasoning. In Hadi Das Vrs. Collector Cuttack quoted by the learned counsel, the Hon'ble Orissa High Court held that decree passed in ignorance of the amended provisions of the Act amounted to mistake calling for review. In the said case the subordinate judge had reviewed the executive jurisdiction vested in by law of rejecting application of the petitioner on the mistake impression that the compensation payable for the land in question stood finally determined by the High court. It needs no elaboration to infer that the ratio of the said case has no relevance to the facts of the present case. In Ranjit Singh Vrs. Union of India. Our attention was drawn to the observations that if all relevant factors are not considered or irrelevant consideration allowed to find place, the decision is vitiated by arbitrary judgement. The ratio of this case has absolutely no relevance. This was a writ case in which the Hon'ble Supreme Court was adjudicating whether the decision of the Government was arbitrary because it had not taken relevant factors into consideration. The powers of the Court in writ jurisdiction are extremely wide. It is not permissible to challenge the merit of a decision in review petition. A review is by no means an appeal in disguise where by alleged erroneous decision is reheard and recorrected, but lies only for patent error [Tungabhadra & Co. Vrs. Government (A 1964 SC 1372)]. In AIR 1960 Manipur 74, the Hon'ble High Court allowed review on the ground that important documents which were in the record and which affect the very jurisdiction of the Court was not considered by the Court. The Court observed that failure to consider the most important point and issues where the case was an exceptional one is an error apparent on the face of the record. It will suffice to say that it is too far- fetched to compare the facts of this case with the facts of the case before us. In the very same case, the Hon'ble Judges have observed with regard to certain other alleged error that they relate to matters which should have been properly raised by the petitioner in an appeal and not in a petition for review.

19. Dwelling on the petitioner's claim of continuance of a special right for a specified rate of transmission tariff vested as a result of Govt. of Orissa policy directives we have to observe as follows:

(a) The Govt. of Orissa resolutions dated 09.11.92 and 13.09.93 in so far as they relate to the wheeling charges were not policy directives and hence they have no valid legal basis.

(b) The Govt. did not have the right or legal authority at any point of time even under the Electricity (Supply) Act to fix tariff or other charges in respect of specific services renderred by the OSEB.

(c) Any special right conferred by the Govt. through executive instruction on any user of OSEB was extinguished and is not binding on the GRIDCO after coming into force of OER Act, 1995.

(d) In view of the provisions of Chapter VIII of the OER Act 1995 tariffs and charges of all types in respect of customers in the State have to be fixed solely and exclusively by the Orissa Electricity Regulatory Commission in accordance with the procedure prescribed in the Act. No factor which is not in accordance with the procedure or not in confirmity with the provisions regarding fixation of tariff have any legal basis or significance.

(e) In view of (d) above, even if the executive instruction or policy directive was valid as a legacy it would have to be ignored in this case as repugnant to the provision of law and procedure laid down under the OER Act, 1995 regarding fixation of tariff and other charges and also regarding powers of the Govt. of Orissa.

20. In the light of above observations it has to be held that even if the two Govt. notifications quoted by the petitioner would have been taken into account they would have made no material difference to the procedure and finding regarding determination of transmission tariff. We, therefore, hold that there is no mistake or error apparent on the face of the record and hence there is no justification for inviting review jurisdiction.

21. It hardly needs to be emphasized that the scope of an application for review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used in Or 47 R.1 of Civil Procedure Code. Even through the petitioner has not claimed discovery of new evidence, it has made an attempt to extend the scope of "error on the face of the record" to cover a new evidence which is claimed to be relevant and whose non-consideration is stated to have amounted to error. The new evidence must be relevant and of such a character that had it been considered, it might possibly have altered the judgement. The petitioner did not raise any objection during the public hearing. The government resolutions were not produced; and as demonstrated earlier, even if they were produced, they would have made no difference to our decision .As far as error apparent on the face of record it must be patently gross and manifest (Mir Haji V. Hanchand, A 1939 S 137, Ranbir V Sheo A 1939890). "Error apparent on the face of the record" is an error which can be seen by a mere perusal of the record without reference to any other matter. The error must be relating to some paper document, evidence on the record. The power of review "to correct arithmetical or clerical error or errors apparent on the face of the record arising or occurring from accidental slip or omission in an order passed "cannot include the power to review an order on grounds which were not raised or arguments which were not advanced at the first instance" (Construction Co. V. State of Orissa (1966) 3 SCR 99 (104).

22. In the light of above facts and analysis of law, we have to conclude that the review jurisdiction is not attracted in the facts of the case, and therefore, the petition has to be rejected. We have also to order that there shall be no stay on any part of our order dated 12.03.97.

Pronounced this day the 03rd May, 1997 in the open Court.


I agree.


CASE NO. 7 & 8 OF 1997
T. R. - 008 - 1997

Order No.001 dated 31st March, 1997

31.03.97 M/s. ICCL the applicant is represented by Shri S. K. Pattanaik, Sr. Vice President (C/A), Shri H. Vidyasankar, Company Secretary, Shri S. K. Nanda, Sr. Advisor (Power), Shri P.C. Das, D.G.M. (Law), Shri Sanjeev Das, Asst. Manager (P&C) and Ms. Anuradha Dutt, Advocate for ICCL.

Heard the learned Advocate of M/s. ICCL on the matter of stay and on Review Petition.

The matter is posted to 15th April, 1997 for further hearing.

Issue notice to Gridco, (Respondent) and Govt. of Orissa, Deptt. of Energy (Affected Party) on question of admission and in the stay matter. The Respondent and the affected parties may file counter by 10th April, 1997. There shall be no interim exparte stay of para 11.3 (9) of Commission's Order No. 009 dated 12th March, 1997 in the matter of Case No. 4 of 1997.


I agree.


Order No. 002 dated 15th April, 1997

15.04.97 M/s. ICCL the applicant is represented by Mrs. Anuradha Dutta, Advocate. Shri S. K. Pattanaik, Sr. Vice President (C/A), Shri H. Vidyasankar, Company Secretary, Shri S. K. Nanda, Sr. Advisor (Power), Shri P.C. Das, D.G.M. (Law), Shri Sanjeev Das, Asst. Manager (P&C).

The affected party GRIDCO was represented by Sri B.P. Rekhani, S.E.(Commerce). GRIDCO's counter affidavit dated 10.04.97 has been taken on record. Rejoinder filed by the petitioner to the court of GRIDCO is also taken on record. Heard the learned Advocate of M/s ICCL on the matter of stay and on the question of admission of the main case.

Hearing in the matter is concluded. Ordered that the petition for stay is rejected. Order on admission reserved to be pronounced on 29.04.97.


I agree.


Order No. 003 dated 29th April, 1997

29.04.97 The order with reference to hearing on 15.04.97 is not ready. Pronouncement of order postponed to 03.05.97 at 11. A.M.


I agree.

(D. K.ROY)

Order No. 004 dated 03rd May, 1997

03.05.97 Representative of M/s. ICCL is absent. Representatives of Gridco Sri Mahendra Kumar, Director (Commerce), Shri B. P. Rekhani, S.E.(Commerce) and Shri R.K. Mohanty, Executive Engineer (Commerce) are present. Order delivered in separate sheets. The petition for review is rejected. Copies of the order be sent to the petitioner.


I agree.


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