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Banaras Electric Light and Power Co. Ltd. Vs. the Collector, Varanasi and ors. - Court Judgment

LegalCrystal Citation
SubjectElectricity;Civil
CourtAllahabad High Court
Decided On
Case NumberReview Application No. 15 of 1981 in Civil Misc. Writ Petn. No. 1788 of 1974
Judge
Reported inAIR1982All355
ActsCode of Civil Procedure (CPC) , 1908 - Order 47, Rule 1
AppellantBanaras Electric Light and Power Co. Ltd.
RespondentThe Collector, Varanasi and ors.
Appellant AdvocateB.D. Agarwal, ;Ratnakar Bhartiya and ;Jagdish Swarup, Advs.
Respondent AdvocateV.K. Mehrotra and ;M.P. Gupta, Advs.
DispositionApplication dismissed
Cases ReferredIn S.V. Kondaskar v. V.M. Deshpande
Excerpt:
.....1908 - requirement of exercise of diligence at appropriate time constitutes basis for maintaining review application filed on ground of discovery of new and important evidence - due diligence on part of officers not stated in or along review application - application filed on behalf of officers not maintainable. - - sheikh habib [1975]3scr933 it was held :a review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission of patent mistake or like grave error has crept in earlier by judicial fallibility. governor of delhi [1980]2scr650 reiterated the view taken by it in sow chandra kanta's case (supra) that the finality of the judgment delivered by the court will not be reconsidered except 'where a glaring omission or a patent mistake or like..........executive engineer, electricity maintenance division, p.o.d.l.w. manduadih, varanasi, (3) u. p. state electricity board, 14 ashok marg, lucknow and (4) state of u. p. (hereinafter referred to as the respondents) for various reliefs. the said writ petition was partly allowed by us on feb. 2, 1981 (reported in 1981 all lj 303). the present application for review has been filed on behalf of respondents 2 and 3 to the writ petition.2. the facts giving rise to the writ petition are contained in our judgment aforesaid dated feb. 2, 1981. for purpose of the review application it may be stated in brief that the petitioner had a licence under the indian electricity act, 1910 for generating and supplying electricity within the municipal limits o! varanasi. it also started with effect from nov......
Judgment:

Mahabir Singh, J.

1. The Banaras Electric Light & Power Company Ltd. (hereinafter referred to as the petitioner) filed Civil Misc. Writ Petition No. 1788 of 1974 against (1) the Collector, Varanasi District, Varanasi (2) The Executive Engineer, Electricity Maintenance Division, P.O.D.L.W. Manduadih, Varanasi, (3) U. P. State Electricity Board, 14 Ashok Marg, Lucknow and (4) State of U. P. (hereinafter referred to as the respondents) for various reliefs. The said writ petition was partly allowed by us on Feb. 2, 1981 (reported in 1981 All LJ 303). The present application for review has been filed on behalf of respondents 2 and 3 to the writ petition.

2. The facts giving rise to the writ petition are contained in our judgment aforesaid dated Feb. 2, 1981. For purpose of the review application it may be stated in brief that the petitioner had a licence under the Indian Electricity Act, 1910 for generating and supplying electricity within the municipal limits o! Varanasi. It also started with effect from Nov. 1962 purchasing a considerable quantity of electricity in bulk at voltage 11 KV from the U. P. State Electricity Board, respondent No. 3 in regard to state of electricity by it the U. P. State Electricity Board issued a notification dated 28th Dec. 1971 revising the grid tariff to be applicable with effect from Jan. 1, 1972. In the bills issued by the U. P. State Electricity Board to the petitioner between January and August, 1972 rebate of 5 per cent purporting to be under Clause (6) (b) of the aforesaid notification was granted to the petitioner. In subsequent bills dated Oct. 3, 1972 and Nov. 1, 1972 however the said rebate was not granted. Not only that two bills both dated Oct. 30, 1972 were served on thepetitioner making demand for refund of the amounts mentioned there in the ground that rebate of five per cent had earlier been wrongly allowed in the bills for the period between Jan. and Aug., 1972. Even though the bills for the period between September, 1972 and March, 1973 did not allow any rebate the petitioner made payments after deducting rebate calculated at the rate of five per cent. Subsequently a notice of demand dated Jan. 18, 1974, was served by U. P. State Electricity Board on the petitioner requiring it to pay a sum of Rupees 9,38,910.85 within (30) days failing which it was to be recovered as arrears of land revenue. An objection was sent by the petitioner to the aforesaid notice on Mar. 22, 1974 but no heed having been paid to the said objection Civil Misc. Writ Petn. No. 1788 of 1974 referred to above was filed for various reliefs. Several grounds were urged in support of the writ petition by counsel for the petitioner but only one ground which is relevant for purposes of this writ petition is being mentioned. The petitioner had urged that in view of rebate having been allowed to them they adjusted their rates accordingly and did not pass it over to the consumers and as such the U. P. State Electricity Board was estopped from recovering the amount from them. None of the grounds urged found favour with this Court except one, namely, that for the period between Jan. 1, 1972 and Dec. 9, 1972 the U. P. State Electricity Board was estopped from recovering any amount from the petitioner deducted by it as rebate. The present review application has been filed by respondents 2 and 3 on the ground of discovery of fresh material. In the review petition it has been alleged that this case of the petitioner was wholly wrong that they had not passed over the enhanced amount to the consumers. They had actually moved the U. P. Government and the U. P. State Electricity Board for raising the rate chargeable from the consumers, keeping In view the increase in tariff, i.e., Rupees 16,50,000/- which did not take the rebate into consideration at all and the Board after considering the matter sanctioned the increase in rate in part. So the plea of estoppel had no force at all. They seek to file these papers in connection with the sanction of increase in the rate to support their plea.

3. This application has been opposed en behalf of the petitioner mainly on two grounds : (1) that the documents whichare sought to be relied on as additional evidence were in the knowledge of respondents 2 and 3 even at the time when they contested the writ petition and since no cause has been shown as to why they were not filed at the appropriate stage along with the counter-affidavit in the writ petition the review application is not maintainable, and (2) even if the documents in question are taken into consideration the plea of estoppel against the U. P. State Electricity Board was still maintainable as in their application for sanction of higher rate they had given figures of the enhanced cost after considering the rebate allowed. They gave the break up of the amount of Rs. 16,50,000/-to illustrate the same.

4. In their rejoinder respondents 2 and 3 disputed this break up and alleged that this was wholly wrong and the figures were being given simply for meeting the points raised and they calculated the rebate only on a part of the charges and not on the entire amount because the rebate is due if at all on the entire amount and not on a part. Had that been so the figure of the enhanced cost would not have been Rs. 16,50,000/- but very much less raised by counsel for the parties at some length we are of the opinion that there is substance in the first objection raised by counsel for the petitioner and the review application is liable to be dismissed on that ground alone and in that view of the matter it is not necessary to go into the second objection raised by counsel for the petitioner.

5. The sheet anchor of the review application is copy of a notice dated Jan. 24, 1972 sent by the petitioner to the State Government and the U. P. State Electricity Board which has been filed as Annexure I to the review application. Annexures 2 and 3 to the review application are copies of citations in a newspaper consequent upon the notice dated Jan. 24, 1971. Annexures 4 to 6 to the review application are the copies of certain letters.

6. Before dealing with the first objection raised by counsel for the petitioner about the maintainability of the review application we find it necessary to consider at this place certain decisions dealing with the extent and scope of the power of review with particular reference to a judgment delivered in a writ petition. In Shivdeo Singh v. State of Punjab (AIR 1963 SC 1909) (at p. 1911) it was held :

'It is sufficient to say that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it.'

In Sow. Chandra Kanta v. Sheikh Habib : [1975]3SCR933 it was held :

'A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission of patent mistake or like grave error has crept in earlier by judicial fallibility.'

In A. T. Sharma v. A. P. Sharma : 1979CriLJ908 after referring to the decision in Shivdeo Singh's case (supra) it was held (at p. 1048) :--

'It is true as observed by this Court in Shivdeo Singh v. State of Punjab (AIR 1963 SC 1909) there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it, But there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground.'

7. While dealing with the power to review its own judgment the Supreme Court in Northern India Caterers v. Lt. Governor of Delhi : [1980]2SCR650 reiterated the view taken by it in Sow Chandra Kanta's case (supra) that the finality of the judgment delivered by the Court will not be reconsidered except 'where a glaring omission or a patent mistake or like grave error has crept in earlier by judicial fallibility'.

8. The question as regards court's power of review in proceedings under Article 226 of the Constitution came up for consideration before a Full Bench of the Gujarat High Court in Gujarat University v. Sonal P. Shah : AIR1982Guj58 . Giving his leading judgment Bhatt, J., in paragraph 8 of the report, after taking notice of the amendment made in Section 141of the Civil P. C. to the effect that the word 'proceeding' used in that section did not include a writ petition under Article 226 of the Constitution and A. T. Sharma's case : 1979CriLJ908 (supra) held (at p. 62):--

'So I find that following legal propositions stand firmly established:--

(1) The provisions of the Civil P. C. of Order 47 are not applicable to the High Court's power of review in proceedings under Article 226 of the Constitution.

(2) The said powers are to be exercised by the High Court only to prevent miscarriage of justice or to correct grave and palpable errors. (The epithet 'palpable' means that which can be felt by a simple touch of the order and not which could be dug out after a long drawn out process of argumentation and ratiocination).

(3) The inherent powers through ex facie plenary are not to be treated unlimited or unabridged, but they are to be invoked on the grounds analogous to the grounds mentioned in Order 47. Rule 1, namely : (i) discovery of new and important matter or evidence which the party seeking the review could not produce at the time when the earlier order sought to be reviewed was made, despite exercise of due diligence; (ii) existence of some mistake or error apparent on the face of the record; and (iii) existence of any analogous ground. (These are the very three grounds referred to in Order 47, Rule 1, Civil P. C. and by declaration of law at the hands of the Supreme Court in the above case they are the hedges or limitations of the High Court's power).

9. Coming to the facts of the instant case it would be seen that here the review is sought not on the ground that a glaring omission or a patent mistake or like grave error has crept in earlier by judicial infallibility nor on the ground that this Court committed by grave and palpable error in deciding the writ petition. It has been filed only on the ground of discovery of new and important evidence. As has been emphasised by the Supreme Court in A, T. Sharma's case (supra) which has been followed by the Full Bench of the Gujarat High Court in the case of Gujarat University (supra) before a review application can be entertained this ground it has to be established by the applicant in the review application that the additional evidence which is sought to be relied on wasafter the exercise of due diligence not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made. In the instant case there is no averment to this effect either in the affidavit filed in support of the review apilication or even in the rejoinder affidavit. In the affidavit filed along with the review application what has been stated is that after the judgment was delivered in the writ petition the Superintending Engineer, Electricity Supply Undertaking, Stale Electricity, Varanasi had the occasion to appear before the Special Officer Electricity) to the State Government and in that connection while wading through the old files in the office of the Electrical Inspector to the State Government he found the document referred to in the review application. As pointed out above the sheet anchor of the review application is a notice sent by the petitioner o the State Government and the U. P. State Electricity Board itself on January 24, 1972. This notice, therefore, was apparently with the U. P. State Electricity Board which is an applicant in the review application even at the time when the counter-affidavit in the writ petition was filed and the writ petition was heard and decided. The only averment in this behalf in the rejoinder affidavit is that the officers dealing with the case had no knowledge and had no occasion to know about this notice given by the petitioner-Company and, therefore, could not bring it to the notice of this Court at the time when the writ petition was heard. It would thus be seen that neither in the affidavit filed along with the review application nor in the rejoinder affidavit it has been stated that even after exercise of due diligence these documents were not within the knowledge of respondents 2 and 3 or could not be produced by them at the time when the writ petition was heard and decided. The requirement of the 'exercise of the diligence' at the appropriate 'time constitutes the very basis for maintaining a review application filed on the ground of discovery of new and important matter of evidence. In Pyare Lal v. Chhotey Lal (AIR 1942 All 82), while dealing with the power of review under Order 47, Rule 1, C. P. C. on the basis of discovery of new or important evidence it was held that Order 47. Rule 1. C. P. C. requires a high standard of diligence and that the person who wants a review should prove strictly diligence heclaims to have exercised. The same view was taken in an earlier decision in Kariya Mahto v. Ram Sarup (AIR 1917 All 107).

10. Counsel for the respondents 2 and 3 on whose behalf the present review application has been filed has however placed emphasis on the decision of the Supreme Courtin Order N. Mohindroo v. Distt. Judge, Delhi : [1971]2SCR11 and has urged on its basis that a review application is maintainable if a manifest wrong has been done it is necessary to pass an order to do full and effective justice. It is urged that when the very basis on which the plea of estoppel was allowed by this Court in part failed, it would be manifestly unjust to allow the benefit a second time. Having given our anxious consideration we are of opinion that the said decisions is of no assistance of respondents 2 and 3. That was a case where the scope of the power of review by the Supreme Court with particular reference to Article 137 of the Constitution was considered. An advocate had been debarred from practice. There were certain special circumstances pointed out by the Supreme Court on the basis of which it took the decision that it was a fit case for allowing the review application. These circumstances are pointed out in paras 21, 36 and 37 of the report. No such circumstance is, however, to be found in the instant case. In Punjab Co-operative Bank Ltd. v. Commr. of Income-tax relying on the observations of Lord Halsbury in Quinn v. Leatham (1901 AC 495) it was held :

'Every judgment must be read as applicable to the particular facts proved or assumed to be proved since the generality of the expression which may be found there are not intended to be expositions of the whole law but governed or qualified by the particular facts of the case in which such expressions are to be found.'

In S.V. Kondaskar v. V.M. Deshpande, : [1972]83ITR685(SC) it was held in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts of the case in which the decision was given and what was the point which was to be decided. It is in view of what has been pointed out above that we are of opinion that the decision in O. N. Mohindroo's case (supra) is of no assistance to respondents 2 and 3.

11. In view of the foregoing we are of opinion that no case has been made out for entertaining the present review appli-cation. In this view of the matter we find it unnecessary to go into the second objection raised by counsel for the petitioner that even on merits no case for review has been made out.

12. In the result this review application fails and is dismissed but in the circumstances of the case there shall be no order as to costs.


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