APTEL Clarifies but Does Not Reopen, The Arbitrability Question Under Section 79(1)(f): Review Petition No. 6 of 2026
Tata Power Company Limited v. Gujarat Urja Vikas Nigam Limited & Ors., Review Petition No. 6 of 2026 decided on 17 September 2026
The Dispute
Tata Power sought review of Appellate Tribunal’s common judgment dated 25 February 2026 in Appeal Nos. 348 of 2025 & Batch. Tata Power contended that the judgment under review had described paragraph 36 of the Appellate Tribunal’s earlier judgment dated 28 August 2024 in Appeal No. 309 of 2019 (the DVC judgment) as a “stray sentence” and that conclusion of the judgment under review that only disputes falling within clauses (a) to (d) of Section 79(1) can be adjudicated by the Central Commission or referred to arbitration under Section 79(1)(f) was directly contrary to the DVC judgment of a coordinate bench, which the Judgement under Review could not dilute.
Paragraph 36 of the DVC judgment had recorded that non-tariff disputes involving a generating company or a distribution licensee do not fall within clause (f) of Section 79(1) and are thus arbitrable. The challenge to DVC judgment was dismissed by the Hon’ble Supreme Court in Civil Appeal No. 10480 of 2024.
The Law on Review
The Appellate Tribunal restated the settled position under Section 114 and Order XLVII Rule 1 CPC: an error apparent on the face of the record is one that is self-evident and not one established by a long-drawn process of reasoning, review corrects a patent mistake but does not substitute a view and a review petition cannot become an appeal in disguise.
Findings on the Substantive Ground
The Appellate Tribunal declined to disturb the reasoning of the judgment under review. The Appellate Tribunal held that since the Central Commission can adjudicate only disputes falling under clauses (a) to (d) of Section 79(1), its referral power is confined to the same category. The identically worded second limb of Section 86(1)(f) was read in the same manner, the Appellate Tribunal noting that a contrary construction would create concurrent referral jurisdiction between the Central and State Commissions and would permit a State Commission to refer disputes falling wholly outside its State.
On Renew Wind Energy (AP2) (P) Ltd. v. Solar Energy Corporation of India, 2025 SCC OnLine Del 8252, the Appellate Tribunal held that the Hon’ble High Court’s attention had not been drawn to Hindustan Zinc Ltd. v. Ajmer Vidyut Vitran Nigam Ltd., (2019) 17 SCC 82 and that the Appellate Tribunal was bound to follow the Hon’ble Supreme Court.
The Appellate Tribunal held that the judgment under review does not contradict the DVC judgment but is clarificatory of it, explaining its actual purport and observed that the clarification “ought to have been given in the DVC judgment itself”.
The Appellate Tribunal recorded its disapproval at paragraph 36 of the DVC judgment being characterised as a “stray sentence”, holding that the paragraph contained the final view of the Appellate Tribunal on arbitrability and that without it the DVC judgment would be inchoate. That characterisation was held to be an error apparent on the face of the record and those observations alone were set aside. The review petition was thereafter dismissed.
