APTEL Dismisses Industrial Consumers' Appeal Against DVC Tariff Order, Refuses to Condone 1,125-Day Delay

Three Kolkata-based industrial consumers failed to explain a delay of over 1,125 days in challenging a 2022 DVC tariff order; APTEL dismissed the appeal as time-barred on 29 May 2026.

The Appellate Tribunal for Electricity dismissed an appeal filed by three industrial power consumers of the Damodar Valley Corporation (DVC) — Brahm (Alloys) Limited, Jaishree Steels Private Limited, and Sova Electrocasting Limited — after refusing to condone a delay of 1,125 days in challenging a tariff order passed by the West Bengal Electricity Regulatory Commission (WBERC). The order, authored by Hon'ble Mr. Virender Bhat, Judicial Member, found that the appellants had offered no cogent explanation for a significant portion of the delay and had adopted a “lackadaisical, lethargic and laid back attitude” by waiting on the sidelines while other consumers litigated. The appeal was accordingly held to be barred by limitation and dismissed on 29 May 2026.

The Tariff Order Under Challenge

WBERC passed a Tariff Order on 5 May 2022 for the period 2017–18, determining a higher tariff for DVC consumers. The Commission directed that consequential arrears be paid with effect from 1 April 2017. The three appellants, all industrial consumers of DVC based in Kolkata, objected to the retrospective recovery of arrears from 2017, arguing it was wholly unjustified.

The Tariff Order had already been challenged before APTEL by other DVC consumers. M/s Inox Air Products Ltd. filed Appeal No.286 of 2023, and the Tribunal, by order dated 6 June 2022, stayed recovery of arrears of higher tariff subject to the appellant paying full tariff at the rate determined in the order. A second consumer, M/s Dinman Ploypacks Pvt. Ltd., filed DFR No.256/2022, and by order dated 1 July 2022, the Tribunal not only granted a similar stay but extended interim relief to all consumers — whether or not they had approached the Tribunal.

The Interim Protection That Lapsed

The 1 July 2022 order in DFR No.256/2022 (later registered as Appeal No.288/2023) explicitly stated that interim protection would operate to prevent a flood of appeals from similarly affected parties. The appellants in the present case relied on this order and did not file their own appeal against the Tariff Order.

However, on 22 August 2024, APTEL revisited that order in a batch of appeals and held that extending interim relief to non-parties was beyond its jurisdiction under Section 111 of the Electricity Act, 2003. The Tribunal reasoned that Section 111(1) enables only a “person aggrieved” who invokes appellate jurisdiction to receive relief, and that interim orders in such appeals cannot be extended to those who have not invoked that jurisdiction. The earlier order extending relief to all consumers was accordingly set aside.

Several consumers then challenged the 22 August 2024 order before the Supreme Court by way of civil appeals. Those appeals were subsequently withdrawn. The appeal of M/s H.P. Ispat Pvt. Ltd. was dismissed as withdrawn by the Supreme Court on 18 February 2025, with the question of law kept open for an appropriate case.

The Appellants' Case for Condonation

The appellants filed the present appeal before APTEL on 25 July 2025, seeking condonation of 1,125 days of delay. Their counsel, Rohit Bansal, argued that the appellants were covered by the 1 July 2022 interim order for over two years and had no reason to file a separate appeal during that period. After the interim protection was vacated on 22 August 2024, the appellants chose to wait for the outcome of the Supreme Court proceedings initiated by other consumers. It was only when those appeals were dismissed as withdrawn on 18 February 2025 that the appellants took steps to file their own appeal, and the delay was therefore not deliberate.

Respondents' Opposition

Counsel for WBERC and DVC opposed the application, arguing that the delay was not only inordinate but had remained wholly unexplained. The respondents contended that no sufficient cause had been shown to justify condonation.

How the Tribunal Reasoned

The Tribunal accepted that the appellants were covered by the 1 July 2022 interim order until it was set aside on 22 August 2024. The critical question, however, was what the appellants did after that date. The Tribunal found that they neither challenged the 22 August 2024 order before the Supreme Court nor filed an appeal before APTEL against the original Tariff Order. Instead, they sat on the fence, waiting for the outcome of other consumers' Supreme Court proceedings.

The Tribunal characterised this conduct as intentional delay, at least from 22 August 2024 onwards. Invoking the Latin maxim Vigilantibus non dormientibus jura subveniunt — law helps those who are awake, not those who sleep on their rights — the Tribunal held that a litigant who shows no urgency and delays approaching the appropriate forum runs the risk of being thrown out on the ground of delay.

The Tribunal went further. Even accepting, for the sake of argument, that the appellants first realised on 18 February 2025 that they needed to file their own appeal, the appeal was still time-barred. The prescribed period of 45 days from 18 February 2025 would have required the appeal to be filed by 4 April 2025. The appeal was filed on 25 July 2025 — more than two and a half months beyond even that extended date. The appellants offered no explanation whatsoever for this portion of the delay.

The Tribunal reiterated the settled principle that condonation of delay cannot be claimed as a matter of right. Non-filing within the limitation period creates a valuable right in favour of the opposite party. Delay can be condoned only when cogent reasons are disclosed. In this case, the appellants had failed to disclose any reason for the delay after 18 February 2025, making the delay contumacious and per se not condonable.

Outcome

The application for condonation of delay (IA No.997 of 2025) was dismissed. Consequentially, the appeal in DFR No.231 of 2025 was held to be barred by time and dismissed. IA No.999 of 2025 and all other applications filed along with the appeal were also disposed of. The order was pronounced in open court on 29 May 2026 by Hon'ble Ms. Seema Gupta, Officiating Chairperson, and Hon'ble Mr. Virender Bhat, Judicial Member.