M/S. DSR STEEL (P) LTD.versusSTATE OF RAJASTHAN & ORS.

                     [2012] 5 S.C.R. 583


                 MIS. DSR STEEL (P) LTD.                           A
                               v.
              STATE OF RAJASTHAN & ORS.
            (Civil Appeal No. 3814 of 2007 etc.)

                         MAY 1, 2012
                                                                   B
     [T.S. THAKUR AND GYAN SUDHA MISRA, JJ.]

     Electricity Act, 2003 - s. 125 - Appeal under -
Maintainability of - Held: Appeal uls. 125 is maintainable only
on the grounds specified uls. 100 CPC - It is maintainable         C
only when the case involves substantial question of law -
Concurrent findings of facts recorded by courts below cannot
be reopened in appeal u/s. 125 - On facts, no substantial
question of law arose for consideration - No perversity is found
in the findings by courts below - Code of Civil Procedure, 1908    D
- s. 100.

    Limitation - Reckoning of /imitation - Original order and
the order dismissing the review petition - Whether the two
orders merged and whether limitation to be reckoned from the       E
date of judgment/order in review petition and not original
order - Held: Where review petition is dismissed, there is no
question of merger - Limitation would be reckoned from the
date of the original order - Doctrine of merger.

     Distribution Companies filed applications before              F
State Electricity Regulatory Commission for revision of
tariff to be effective from 1.12.2004. The Commission
directed that the revised tariff determined by it would
become effective from 1.1.2005 and shall remain in force
till the same is amended by the Commission by a                    G
separate order. Appellants and other consumers filed
review petitions seeking review of the order of the
Commission and asking for continuation of the incentive
scheme. They took the plea that withdrawal of the
                             583                                   H
    584      SUPREME COURT REPORTS            [2012] 5 S.C.R.

A scheme offended the1 principle of promissory estoppal.
  The Commission dismissed the review petitions holding
  that the incentive scheme had a limited validity i.e. till
  31.3.2003 or till the C1ommission issued a tariff order, and
  thus its withdrawal did not offend the principles of
B promissory estoppal. The appeal against the order was
  dismissed by the appellate tribunal for electricity. Hence
  the instant appeals were filed.

          Dismissing the appeals, the Court

C      HELD: 1.1 The appeals are liable to be dismissed as
  no substantial question of law arises for consideration.
  An appeal u/s. 125 of the Electricity Act, 2003 is
  maintainable before the Supreme Court only on the
  grounds specified in Section 100 CPC. Section 100
D c:P.C. in turn permits filing of an appeal only if the case
  involves a substantial question of law. Findings of fact
  re.corded by the courts below, which would in the present
  case, imply the Regulatory Commission as the court of
  first instance and the Appellate Tribunal as the court
E hearing the first appeal, cannot be re-opened before
  Supreme Court in an appeal u/s. 125 of the Electricity Act,
  2003. Just as the High Court cannot interfere with the
  concurrent findings of fact recorded by the courts below
  in a second appeal u/s. 100 CPC so also Supreme Court
F would be loathed to entertain any challenge to the
  concurrent findings of fact recorded by the Regulatory
  Commission and the Appellate Tribunal. [Para 7] [592-D-
    G]
      Govindaraju v. Mariamman AIR 2005 SC 1008: 2005 (1)
G SCR1100; Hari Singh v. Kanhaiya Lal AIR 1999 SC
  3325:1999 (2) Suppl. SCR 216;Ramaswamy Ka/ingaryar v.
  MathayanPadayaci"1i AIR 1992 SC 115; Kehar      Singh v.
  Yash Pal and Ors.AIR 1990 SC 2212; Bismil/ah Begum
  (Smt.) (Dead) by LRs. v. Rahmatu/lah Khan (Dead) by LRs.
H AIR 1998 SC 970: 1998 (1) SCR 284 - relied on.
 DSR STEEL (P) LTD. v. STATE OF RAJASTHAN &             585
                     ORS.
     1.2 The Regulatory Commission has, recorded a clear       A
finding of fact that the old incentive scheme was limited
only upto 31st March, 2007 or till the Commission issued
a tariff order whichever was earlier. It also recorded a
finding that while considering revision of tariff it had
gone into the proposals regarding introduction of a new        B
incentive scheme and approved the same, effectively
bringing the existing scheme to an end and introducing
a new scheme in its place. The Commission had declined
to accept the contention that the appellant companies had
altered their position to their detriment by making            c
additional investments or that there was any specific
representation or promise made to them that the old
scheme would inevitably continue till 31st March, 2007.
The additional material which the appellants had sought
to introduce belatedly at the review stage had also been       0
declined by the Commission. In its order revising tariff,
the Commission had dealt with the question relating to
the incentive scheme. The Tribunal concurred with the
above view taken by the Commission and repelled the
contention based on the principle of promissory
estoppel. Thus, there is no perversity in any one of those     E
findings nor is there any substantial question of law
arising in the fact situation of the instant appeals. The
appeals are dismissed on merits. [Paras 8 and 9] [593-A-
D; 595-C-E]
                                                               F
    Mis Motilal Padampat Sugar Mills Co. Ltd. v. State of
Uttar Pradeshand Ors. (1979) 2 SCC 409: 1979 (2) SCR 641;
Kasinka Trading andAnr. v. Union of India and Anr. (1995) 1
SCC 274: 1994 (4) Suppl.SCR 448; Shrijee Sales
Corporation and Anr. v. Union of India (1997) 3 SCC 398: G
1996 (10) Suppl. SCR 888; Union of India and         Ors. v.
Godfrey Philips India Ltd. (1985) 4 SCC 369: 1985 (3) Suppl.
SCR 123 - referred to.
    2 It is not correct to say that the period of limitation
could be reckoned only from the date of the order passed       H
    586      SUPREME COURT REPORTS             [2012] 5 S.C.R.


A in the review applications. The order passed by the
   Tribunal in appeal meirged with the order by which the
   Tribunal has dismissed an application for review of the
   said order. Different situations may arise in relation to
   review petitions filed before a court or Tribunal. Where
B the review application is allowed, in such a situation the
   subsequent decree alone is appealable not because it is
   an order in review but because it is a decree that is
   passed in a proceeding after the earlier decree passed
   in the very same proiceedings has been vacated by the
c Court hearing the review petition. Where a Court or
   Tribunal makes an order in a review petition by which the
   review petition is allowed and the decree/order under
   review reversed or modified, The decree so vacated
   reversed or modified is then the decree that is effective
0 for  purposes of a further appeal, if any, maintainable
  under law. Where the petition is filed before the Tribunal
  but the Tribunal refuses to interfere with the decree or
  order earlier made and simply dismisses the review
  petition, the decree in such a case suffers neither any
  reversal nor an alteration or modification. It is an order
E
  by which the review petition is dismissed thereby
  affirming the decree or order. In such a contingency there
  is no question of any merger and anyone aggrieved by
  the decree or order of the Tribunal or court shall have to
  challenge within the time stipulated by law, the original
F decree and not the order dismissing the review petition.
  Time taken by a party in diligently pursing the remedy by
  way of review may in appropriate cases be excluded from
  consideration while condoning the delay in the filing of
  the appeal, but such exclusion or condonation would not
G imply that there is ct merger of the original decree and the
  order dismissing the review petition. [Paras 12, 13 and 14]
  [596-G-H; 597-A-H; 598-A-B]

          Manohar S/o Sh~nkar Nale and Ors. v. Jaipalsing S/o
H Shiva/a/sing Rajput (2008) 1 SCC 520: 2007 (12) SCR 364;
 DSR STEEL (P) LTD. v. STATE OF RAJASTHAN & 587
                     ORS.
Sushi/ Kumar Sen v. State of Bihar (1975) 1 SCC 774 :1975        A
(3)SCR 942; Kunhayammed and Ors. v. State of Kera/a and
Anr.(2000) 6 sec 359: 2000 (1) Suppl. SCR 538 - relied on.

                     Case Law Reference:
     1979 (2) SCR 641             Referred to       Para 5       B

     1994 (4) Suppl. SCR 448 Referred to           Para 5

    1996 (10) Suppl. SCR 888 Referred to            Para 5

    1985 (3) Suppl. SCR 123       Referred to      Para 5
                                                                 c
    2005 (1) SCR 1100             Relied on         Para 7
    1999 (2) Suppl. SCR 216       Relied on        Para 7
    AIR 1992 SC 115               Relied on        Para 7
                                                                 D
    AIR 1990 SC 2212              Relied on        Para 7
    1998 (1) SCR 284              Relied on        Para7
    2010 (4) SCR 680              Referred to       Para 11
    2007 (12) SCR 364             Relied on        Para 15       E

    1975 ( 3) SCR 942             Relied on        Para 15
    2000 ( 1) Suppl. SCR 538 Relied on             Para 15

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.              F
3814 of 2007 etc.

     From the Judgment & Order dated 23.11.2006 of the
Appellate Tribunal of Electricity, New Delhi in Appeal No. 226
of 2006.
                                                                 G
                              WITH
C.A. Nos. 4393 & 4396 of 2007.

    Paras Kuhad, R.K. Agarwal, Atul Jha, Sandeep Jha, P.V.
Yogeswaran, PN Bhandari, Hemant Sharma, Biju Mattam, Jitin       H
    588      SUPREME COURT REPORTS                  [2012] 5 S.C.R.


A   Chaturvedi, lndu Sharma, Abhishek Gupta, Milind Kumar, Ajay
    Choudhary, Manish Kr. Sharma for the appearing parties.

          The order of the Court was delivered by

       T.S. THAKUR, J. ·1. These appeals under Section 125 of
B the Electricity Act, 200:3 call in question the correctness of an
  order dated 23rd November, 2006, passed by the Appellate
  Tribunal for Electricity whereby a batch of appeals including
  those filed by the appellants against an order dated 8th June,
  2006 passed by the! Rajasthan Electricity Regulatory
C Commission, have been dismissed.

          2. Jaipur Vidyut Vitran Nigam Limited ('JWNL' for short),
    Jodhpur Vidyut Vitran Nigam Limited ('JDWNL' for short) and
    Ajmer Vidyut Vitran Nigam Limited ('AVVNL' for short),
D   submitted separate applications before the Rajasthan
    Electricity Regulatory Commission (for short 'Commission') at
    Jaipur in terms of Sections 62 and 64 of the Electricity Act,
    2003 for revision of tariff to be effective from December 1,
    2004. Each one of these distribution companies ('Discoms' for
E   short) had an existing tariff but in their respective applications
    they sought an identical tariff revision which requests were
    taken up by the Commission for consideration together and
    disposed of in terms of a common order dated 17th December,
    2004, passed after notices regarding filing of the said
    applications were published in different newspapers having
F   circulation in the Stat13 of Rajasthan. Several objections were
    filed and suggestions made by nearly 100 individuals and
    organisations in the course of the proceedings before the
    Commission. All these objections were then considered by the
    Commission no matter only 38 of thos,e who had filed the same
G   had complied with the requirement laid down by the former. A
    large number of people. and organisations even applied for
    personal hearing and were heard on different dates at different
    venues fixed for the purpose. Some of these objections also
    related to individual problems of the consumers or disputes
H   relating to bills and other matters which were directed to be
 DSR STEEL (P) LTD. v. STATE OF RAJASTHAN &                  589
            ORS. [T.S. THAKUR, J.]
considered by the Discerns and decision taken on the same            A
under intimation to the persons concerned. Other issues
including those questioning the maintainability of the petitions
and alleging non-compliance with the regulations and directions
of the Commission were also raised. Issues touching reforms
in power sector, non-determination of the Rajasthan Vidyut           B
Utpadan Nigam's tariff from whom the Discoms purchase
electricity, poor performance of Vidyut Vitran Nigams were also
agitated. Similarly objections to the proposed increase in tariff,
interest charges, depreciation etc. too were raised and
examined by the Commission. Suggestions regarding                    c
improvement, objections relating to high T&D losses,
inadequacy of staff, continuation of un-metered supply, issue
of deemed licensee and tariff for deemed licensee were also
examined. Questions relating to high voltage supply,
segregation of mixed load, billing demand, demand based tariff       D
for MIP consumers, power factor and shunt capacitor surcharge,
vigilance checking of consumers, minimum billing, agriculture,
domestic and industrial tariff too were examined by the
Commission apart from several other issues that were placed
before the Commission to which the Commission has made a
reference in its order dated 8th June, 2006. The Commission          E
eventually directed that the revised tariff determined by it will
become effective from 1st January, 2005 and remain in force
till the same is amended by the Commission by a separate
order passed by it.
                                                                     F
      3. Aggrieved by the order passed by the Commission, the
appellants and a large number of other consumers in that
category filed review petitions under Section 94 (1 )(f) of the
Electricity Act, 2003 seeking review and continuation of the
incentive scheme. These review petitions were dismissed by           G
the Commission in terms of its or~er dated 8th June, 2006. The
Commission noted the contention urged on behalf of the
petitioners that they were affected by the withdrawal of the
incentive scheme. It was also urged that these consumers had
made investments on the basis of the incentive scheme bona           H
    590      SUPREME COURT REPORTS                  [2012] 5 S.C.R.


A   fide believing that the same would continue for at least three
    years. The review petitioners, therefore, sought continuation of
    the said scheme by suitable review of the Commission's order
    dated 17th December, 2004. The Commission also noted the
    opposition of the Discerns to the said prayer and the contention
B   that the incentive scheme was to be effective upto 31st March,
    2003 or till the Commission issued a tariff order whichever was
    earlier.

       4. The Commission noted the submissions made on
  behalf of the Discerns that the tariff petitions had been filed in
C August 2004 and the details of the scheme had been published
  in newspapers including the incentive scheme which was
  deliberated in the course of the public hearing and dealt with
  in the Commission's tariff order dated 17th December, 2004.
  It was also argued on behalf of the Discerns that the modified
D incentive scheme was free from any legal flaw.

        5. Consideration of the rival submissions led the
  Commission to the conclusion that its order dated 17th
  December, 2004 had examined the question raised by the
E petitioners regarding the continuation of the incentive scheme
  and found that the scheme had a limited validity and its
  withdrawal did not offend the principles of promissory estoppel.
  It also held that the modification of the scheme was not without
  public notice and the discontinuance of the old incentive
F scheme had been given wide publicity pursuant to which large
  industries and assoc:iations had been heard on the question
  of introduction of a new scheme in place of the old. The
  Commission also held that the question of applicability of
  Promissory Estoppel had been raised before the Commission
G at the hearing of the tariff petitions and that the material sought
  to be introduced in support of the said plea at the stage of
  review could not be taken into consideration. The Commission,
  accordingly, concluded that there was no mistake or error
  apparent on the facH of the record in the order passed by it to
  call for a review of the same. In support the Commission noted
H several decisions of this Court on the question of Promissory
 DSR STEEL (P) LTD. v. STATE OF RAJASTHAN &                     591
            ORS. [T.S. THAKUR, J.]

Estoppel including those delivered in Mis Motilal Padampat             A
Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors. (1979)
2 SCC 409, Kasinka Trading and Anr. v. Union of India an
Anr. (1995) 1 SCC 274, Shrijee Sales Corporation and Anr.
v. Union of India (1997) 3 SCC 398, Union of India & Ors. v.
Godfrey Philips India Ltd. (1985) 4 SCC 369.                           B

      6. Aggrieved by the orders dated 17th December, 2004
and 8th June, 2006 passed by the Commission, the appellants
and few others filed Appeal Nos.180-197 of 2006 and Appeal
No.226 of 2006 before the Appellate Tribunal for Electricity, at       C
New Delhi which were as noticed above dismissed by the
Tribunal by the order impugned in these appeals. The Tribunal
noted that there was no challenge before it as to the revision
of the tariff order issued by the Commission. It also found that
the Regulatory Commission could exercise its power of review
in terms of Section 94(1 )(f) of the Electricity Act, 2003 read with   D
Order XLVll of the Civil Procedure Code and that it could review
an order, provided a case for any such review was made out.
The Tribunal rejected the contention urged on behalf of the
appellants that the doctrine of Promissory Estoppel was
attracted in the facts of the case. It concurred with the view         E
taken by the Commission that the incentive scheme was
applicable only upto 31st March, 2007 or till the Commission
issued a tariff order whichever was earlier. The Tribunal
observed:
                                                                       F
     "As has been held in Pawan Alloys & Casting Pvt. Ltd.,
     Meerut v. U.P. State Electricity Board And Others, (1997)
     7 Supreme Court Cases 251, in this case, no promise was
     held out to any new industries nor there was an invitation
     for investments of large scale fund but it only imposed a         G
     condition that existing industries could avail of the incentive
     subject to the stipulations in the scheme and nothing more.
     The tariff fixation is a statutory function in terms of The
     Electricity Act 2003 and tariff is to be fixed in the larger
     interest of consumer public at large. That being the
                                                                       H
    592      SUPREME COURT REPORTS                   [2012] 5 S.C.R.


A         position and when in the very tariff scheme, it has been
          specifically provided that the scheme will come to an end
          on 31.03.2007 or when the Regulatory Commission
          determines distribution tariff which ever is earlier. This is
          only meaning it is not known as to how the appellants could
          advance the said contention that the scheme is to be given
B
          any other meaning, is impermissible. This sentence which
          is incorporated in the scheme is fatal to the claim of the
          appellants and none of the precedents pressed into
          service by the appellants will come to their rescue. It will
          be sufficient to answer this point, however, as the
c         appellants on all the contentions pressed for a decision."

        7. We have heard learned counsel for the parties at
  considerable length. An appeal under Section 125 of the
  Electricity Act, 2003 is maintainable before this Court only on
D the grounds specified in Section 100 of the Code of Civil
  Procedure. Section 100 of the C.P.C. in turn permits filing of
  an appeal only if the case involves a substantial question of law.
  Findings of fact recorded by the Courts below, which would in
  the present case, imply the Regulatory Commission as the
E Court of first instance and the Appellate Tribunal as the Court
  hearing the first appea1I, cannot be re-opened before this Court
  in an appeal under Section 125 of the Electricity Act, 2003. Just
  as the High Court cannot interfere with the concurrent findings
  of fact recorded by the Courts below in a second appeal under
F Section 100 of the Code of Civil Procedure, so also this Court
  would be loathed to entertain any challenge to the concurrent
  findings of fact recorded by the Regulatory Commission and
  the Appellate Tribunal. The decisions of this Court on the point
  are a legion. Reference to Govindaraju v. Mariamman (AIR
G 2005 SC 1008), Hari Singh v. Kanhaiya Lal (AIR 1999 SC
  3325), Ramaswamy Kalingaryar v. Mathayan Padayachi (AIR
  1992 SC 115), Kehar Singh v. Yash Pal and Ors. (AIR 1990
  SC 2212), Bismillah Begum (Smt.) (Dead) by LRs. v.
  Rahmatul/ah Khan (Dead) by LRs. (AIR 1998 SC 970) should,
  however, suffice.
H
 DSR STEEL (P) LTD. v. STATE OF RAJASTHAN & 593
            ORS. [T.S. THAKUR, J.]

      8. The Regulatory Commission has, in the case at hand                 A
recorded a clear finding of fact that the old incentive scheme
was limited only upto 31st March. 2007 or till the Commission
issued a tariff order whichever was earlier. It has also recorded
a finding that while considering revision of tariff it had gone into
the proposals regarding introduction of a new incentive scheme              s
and approved the same, effectively bringing to an end the
existing scheme and introducing a new scheme in its place. The
Commission had declined to accept the contention that the
appellant companies had altered their position to their detriment
by making additional investments or that there was any specific             c
representation or promise made to them that the old scheme
would inevitably continue till 31st March, 2007. The additional
material which the appellants had sought to introduce belatedly
at the review stage had also been declined by the Commission.
In its order dated 17th December, 2004 revising tariff the                  D
Commission had dealt with the question relating to the incentive
scheme in the following words:

     "70. The incentive scheme was proposed by the Nigams
     as a stopgap arrangement to arrest the decline in
     industrial consumption. The Commission while conveying                 E
     its approval to extension of the incentive scheme clearly
     stipulated that it shall be valid till 31.3.07 or revision of tariff
     whichever was earlier. The scheme itself had a limited
     validity and therefore, did not attract the principle of
     promissory estoppel. The Commission had envisaged                      F
     review of incentive scheme at the time of tariff revision, as
     the proceeding would have provided opportunity to public
     to express their views to enable appropriate changes in
     incentive scheme or tariff.
                                                                            G
     71. After considering the petitioners' proposal and the
     views expressed before us, the Commission is of the view
     that no separate scheme is called for at this stage. The
     need to provide incentive to promote consumption of
     electricity by large industrial power (LIP) consumers should
                                                                            H
    594           SUPREME COURT REPORTS               [2012] 5 S.C.R.


A         be taken care of by the tariff itself. An incentive which
          encourages better load factor will serve the purpose.
          Consequently, an incentive scheme linked to consumption
          per KVA of contract demand is proposed. Accordingly we
          direct that the incentive shall be available to all LIP
B         consumers including railways and public water works, and
          eligibility for incentive shall be as follows:

           (i)     The annual consumption of the consumer for the
                   current financial year shall not be less than his
                   annual consumption of the previous financial year.
c
           (ii)    In respect of new LIP consumers and existing LIP
                   consumers who reduce their contract demand,
                   incentive shall be admissible from the quarter
                   following six months from the date of new
D                  connection or reductior1 of contract demand, as the
                   case may be.

           (iii)   Consumer should have n~ arrear outstanding
                   against hirn.
E         72. Incentive shall be allowed to eligible consumers
          provisionally on quarterly basis provided that consumption
          during the quarter is not less than his consumption during
          the corresponding quarter during the previous year.
          Incentive so allowed shall be subject to final assessment
F         at the end of the year, on year-to-year basis. If consumption
          of a consumer in any quarter is less than that of the
          corresponding quarter of the previous year but the annual
          consumption is more than that of the previous year, he shall
          be eligible for the incentive for the year as a whole.
G         Incentive shall be as under on energy charges:-

                    (i)   Energy consumption of 250 KWh per month
                          per kVA of contract demand and upto 400
                          KWl1 per month per kVA of contract demand.
                                                               1.0%
H
  DSR STEEL (P) LTD. v. STATE OF RAJASTHAN & 595
             ORS. [T.S. THAKUR, J.]

             (ii)    Energy consumption exceeding 400 KWh            A
                     per month per kVA of contract demand and
                     upto 550 KWh per month per kVA of contract
                     demand.                            4.0%

             (iii)   Energy consumption in excess of 550 KWh
                                                                     B
                     per Month per kVA of contract demand."
                                                       7.0%

     9. The Tribunal concurred with the above view taken by the
 Co~mission and repelled the contention based on the principle
of promissory estoppel not only on the ground that there had         C
been no unequivocal representation regarding continuation of
the scheme till 31st March, 2007 but also on the ground that
there was no material to support the contention that the
appellants had indeed made any investment or changed their
position to their detriment so as to attract the doctrine of         D
promissory estoppel. In coming to that conclusion the
Commission has also relied upon several decisions of this
Court to which we have made a mention above. We do not see
any perversity in any one of those findings nor do we see any
substantial question of law arising in the fact situation of these   E
appeals. We have, therefore, no hesitation in dismissing these
appeals on merits although the same have been filed beyond
the period stipulated for the purpose under Section 125 of the
Electricity Act, 2003.

      10. We may before parting mention that in Civil Appeal         F
No.3814 of 2007 filed by DSR Steel (P) Ltd., one of the
questions that was urged before us was whether the period of
limitation would start running from the date of pronouncement
of the order or the date of communication thereof. Relying upon
the decision of this Court in Chhattisgarh State Electricity         G
Board v. Central Electricity Regulatory Commission and Ors.
(2010) 5 sec 23 it was contended on behalf of the respondent
that the date on which the order was pronounced would also
be the date on which the same is deemed to have been
communicated.                                                        H
    596     SUPREME COURT REPORTS                  [2012] 5 S.C.R.


A         11. Section 125 of the Electricity Act, 2003 makes it
    abundantly clear that the period of limitation commences from
    the date of communication of the decision or order and not from
    the date of its pronouncement. As a matter of fact, Rules 94
    and 98 of the Rules framed under the Act make a clear
B   distinction between intimation regarding pronouncement of the
    order on the one hand and the communication of the order so
    pronounced to the partiies on the other. While Rule 94 appears
    to us to provide for notice of pronouncement of an order, it
    makes no mention about the 'communication' of such an order
c   as is referred to in Section 125 of the Act. Transmission of the
    order by the Court Masb~r to the Deputy Registrar of the Tribunal
    and its onward communication to the parties is dealt with by
    Rule 98 of the said Rules which communication alone can be
    construed as a communication for purposes of Section 125 of
    the Electricity Act, 2003. The decision of this Court in the
0
    Chattisgarh State Electricity Board's case (supra) may in that
    view require reconsideration if the bame were to be understood
    to be laying down that the date of pronouncement is also the
    date of communication of the order. We would have, in the
    ordinary course, made a reference to a larger Bench for that
E   purpose but having regard to the fact that we have dismissed
    the appeals on merits, we consider it unnecessary to do so in
    the present case.

        12. So also the question whether an order passed by the
F Tribunal in appeal mer~1es with an order by which the Tribunal
  has dismissed an application for review of the said order was
  argued before us at some length. Learned counsel for the
  appellants contended that since a review petition had been filed
  by two of the appellants namely, J.K. Industries Ltd. (Now known
G as J.K. Tyres and Industries Ltd.) and J.K. Laxmi Cement Ltd.
  in this case, the order~; made by the Tribunal dismissing the
  appeals merged with the orders passed by it in the said review
  applications so that it is only the order dismissing the review
  application that was appealable before this Court. If that were
H
 DSR STEEL (P) LTD. v. STATE OF RAJASTHAN &                    597
            ORS. [T.S. THAKUR, J.]
so the period of limitation could be reckoned only from the date      A
of the order passed in the review applications.

      13. Different situations may arise in relation to review
petitions filed before a Court or Tribunal. One of the situations
 could be where the review application is allowed, the decree
                                                                      B
 or order passed by the Court or Tribunal is vacated and the
 appeal/proceedings in which the same is made are re-heard
and a fresh decree or order passed in the same. It is manifest
that in such a situation the subsequent decree alone is
 appealable not because it is an order in review but because it       C
 is a decree that is passed in a proceeding after the earlier
decree passed in the very same proceedings has been
vacated by the Court hearing the review petition. The second
situation that one can conceive of is where a Court or Tribunal
makes an order in a review petition by which the review petition
is allowed and the decree/order under review reversed or              D
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           E
then the decree that is effective for purposes of a further appeal,
if any, maintainable under law.

      14. The third situation with which we are concerned in the
instant case is where the revision petition is filed before the       F
Tribunal but the Tribunal refuses to interfere with the decree or
order earlier made. It simply dismisses the review petition. The
decree in such a case suffers neither any reversal nor an
alteration or modification. It is an order by which the review
petition is dismissed thereby affirming the decree or order. In       G
such a contingency there is no question of any merger and
anyone aggrieved by the decree or order of the Tribunal or Court
shall have to challenge within the time stipulated by law, the
original decree and not the order dismissing the review petition.
Time taken by a party in diligently pursing the remedy by way         H
    598      SUPREME COURT REPORTS                 [2012] 5 S.C.R.


A   of review may in appropriate cases be excluded from
    consideration while condoning the delay in the filing of the
    appeal, but such exclusion or condonation would not imply that
    there is a merger of the original decree and the order
    dismissing the review petition.
B
         15. The decision:; of this Court in Manohar S/o Shankar
    Nale and Ors. v. Jaipalsing S/o Shiva/a/sing Rajput (2008) 1
    sec 520 in our view, correctly settle the legal position. The
    view taken in Sushi/ Kumar Sen v. State of Bihar (1975) 1
    SCC 774 and Kunhayammed and Ors. v. State of Kera/a &
C   Anr. (2000) 6 SCC 35!3, wherein the former decision has been
    noted, shall also have to be understood in that light only.

         16. In the result, we dismiss these appeals as no
    substantial question of law arises for our consideration. The
D   respondent shall also be entitled to cost of Rs.20,000/- in each
    case to be deposited in the SCBA Lawyers' Welfare Fund
    within six weeks from today.

    K.K.T.                                    Appeals dismissed.