Calcutta High Court (Appellete Side)
West Bengal State Electricity ... vs Sukanta Kumar Singha And Anothes on 5 July, 2022
In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
R.V.W. No.29 of 2022
With
IA No.: CAN 1 of 2022
In
W.P.A. No.868 of 2022
West Bengal State Electricity Distribution Company Limited
Vs.
Sukanta Kumar Singha and anothes
For the petitioner/WBSEDCL : Mr. Srijan Nayak,
Ms. Rituparna Maitra
For the respondent no.1 : Mr. Sunit Kumar Ray
Hearing concluded on : 08.06.2022
Judgment on : 05.07.2022
Sabyasachi Bhattacharyya, J:-
1. The present Review Application has been filed by the writ
petitioner/West Bengal State Electricity Distribution Company
Limited (WBSEDCL) in respect of an order dated February 4, 2022
passed in W.P.A. No.868 of 2022. By the said order, an order of the
Ombudsman had been modified to the extent that the
compensation/damages payable by the WBSEDCL to the respondent
no.1-consumer was fixed at Rs.6,07,000/- which was to be paid by
the distribution licensee within March 4, 2022. The Ombudsman, it
may be noted, had granted twenty per cent of the said amount as
compensation.
2. At the outset, learned counsel for the respondent no.1 opposes the
review application on the ground that the same is not maintainable in
law. Learned counsel cites Union of India Vs. Sandur Manganese and
Iron Ores Limited and others, reported at (2013) 8 SCC 337, where it
was held that mere disagreement with a view of the judgment cannot
be a ground for invoking review jurisdiction. As long as the point is
already dealt with and answered, parties are not entitled to challenge
the same in the guise that an alternative view is possible under review
jurisdiction. In review application, it was held, the Court shall
interfere only when there is a glaring omission or patent mistake or
when a grave error has crept in the impugned judgment.
3. Learned counsel for the respondent no.1-consumer next cites
Kamlesh Verma Vs. Mayawati and others reported at, (2013) 8 SCC
320. In the said judgment, the Supreme Court held that repetition by
new counsel in review of old contentions and arguments is not
enough to reopen a concluded mater. Order XLVII Rule 1 of the Code
of Civil Procedure was, inter alia, relied on by the Supreme Court.
4. Learned counsel review applicant submits, by placing reliance on A.V.
Papayya Sastry and others Vs. State of A.P. and others, relied on
(2007) 4 SCC 221 that fraud vitiates all judicial acts, whether in rem
or in personam. Judgment, decree or order obtained by fraud has to
be treated as non est and nullity, whether by the court of first
instance or by the final court. As in the said case, it is contended, the
respondent no.1 suppressed vital facts which might have changed the
outcome of the writ petition.
5. In the said judgment, the Supreme Court reiterated the proposition
that fraud vitiates all.
6. Learned counsel for the review applicant contends that there were two
connections in the name of the respondent no.1 in the vicinity of the
premises - one domestic and another commercial. The disconnection
in question was effected due to default of the consumer in one of such
connections, in respect of the other.
7. Learned counsel appearing for the review applicant controverts such
submissions and contends that the said proposition was dealt with
adequately by the Ombudsman.
8. Upon a perusal of the records it is revealed that learned counsel for
the respondent no.1 is justified in his submission.
9. The Ombudsman, in his order which was challenged in the writ
petition, clearly took into consideration the terms of Section 55 and
56 of the Electricity Act, 2003 (hereinafter referred to as 'the 2003
Act'), read with Clause 4 of the Regulation 55 of the WBERC as well
as Clause 3.4.2 of Regulation 55. Upon such consideration, the
Ombudsman observed that Section 56(1) contemplates a prior notice
of not less than 15 days, in writing, to the consumer.
10. In the present case, it was held by the Ombudsman that the
WBSEDCL failed to produce any disconnection notice and, as such,
the disconnection was held to be wrongful. Such observation was the
plinth of the order of the Ombudsman as well as this Court, in writ
petition.
11. Learned counsel for the review applicant further submits that the
consumer did not stay at the location where the disconnection was
effected, that is, at Harishchandrapur, regularly. As such, it is
submitted that no suffering and/or harassment of the respondent
no.1 could have been inferred by the court for the purpose of grant of
compensation.
12. The contention, of course, is denied by learned counsel for the
consumer, who submits that, despite having visited the said location,
sometimes irregularly, the petitioner had his residence there and the
occasional absence was also prompted by such disconnection.
13. Learned counsel submits that numerous complaints and
communications were made to the WBSEDCL Authorities and places
reliance upon several pages of the pleadings in the review application
and the writ petition to substantiate such contention.
14. First, it may be noted that, this contention is being forwarded for the
first time in the review application by the WBSEDCL and is not a new
fact and, as such, ought to have been already known by the
WBSEDCL when the writ petition was filed and disposed of.
15. Moreover, the said allegation being one of facts, which requires
material evidence to be gone into, a review cannot be said to lie on
such premise, since there cannot be said to have been any error
"apparent on the face of records".
16. Such re-appreciation of pleadings and materials is uncalled for in the
review jurisdiction, since the court is not sitting in appeal over its
own decision.
17. That apart, the issue of alleged irregular residence of the writ petition
at the site was a non-issue, since the Ombudsman had granted
compensation, but reduced the total amount to twenty per cent of the
same, without any reasonable basis, as observed in the order under
review.
18. It is the Ombudsman, who calculated the compensation to come to
Rs.6,07,000/- in total, but subsequently the Ombudsman reduced
the amount to 20 per cent.
19. That apart, it was elaborately held, on giving reasons in the order
under review, as to why the claim of the consumer was not time-
barred. The cause of action for compensation was observed to be de
die in diem. The harassment faced by the respondent no.1 need not
have been further substantiated by proof of the respondent no.1
residing at the premises, in view of the fact that the consumer has a
residence at the locality-in-question and electricity is a basic
necessity of life and part of the right of life.
20. In fact, the order under review clearly set out reasons for turning
down the ground of limitation. It was further observed, by way of
reasons that the respondent no.1 had approached the Grievance
Redressal Officer (GRO) within 90 days, by construing the cause of
action to have ripened when the respondent no.1 was directed by the
Ombudsman to approach the GRO.
21. Clause 6.1 of Regulation 56 dated August 26, 2013, framed by the
WBERC, was clearly discussed and interpreted in the order under
review.
22. The argument now sought to be advanced by the review applicant had
been contended at the time of disposal of the writ petition itself and
considered at length. Even if the review applicant argues that the
said observation was bad in law, such error of law, requiring further
arguments, does not fall within the contemplation of error apparent
on the face of record, justifying a review.
23. Regarding the harassment of respondent no.1, the said respondent
has produced several communications and docketed complaints,
which were considered at the time of granting compensation. After the
inference that the claim was not time-barred and the observation of
Ombudsman that the total amount of compensation would be
Rs.6,07,000/- left no other option before the court but to grant the
entire amount as compensation.
24. It may further be recorded that, in the order under review, it was
considered that Clause 6.1 of Regulation 56 stipulated the time limit
for an aggrieved consumer to be 90 days from the date of occurrence
of the cause of action. It was also held that limitation is a mixed
question of fact and law in the context of the case and not a pure of
law evident on the face of pleadings, for which the review applicant,
having not taken the point of limitation at any point of time before
any of the forums, was observed not to have the right to take such
objection at the stage of the writ petition. The language of the
governing Regulations and the Statute indicates that the default
compensation in such cases of wrongful disconnection was Rs.500/-
per day. The total computed amount of compensation by the
Ombudsman was transparent and the calculation (break-up) was set
out to be 1,214 days X Rs.500/- per day, which comes to
Rs.6,07,000/- in total. Such ratio was not interfered with by this
Court in the writ petition. Only the arbitrary reduction thereof to
twenty per cent of the total amount was modified. In any event, since
both the Forums have affirmed the mode of calculation, no challenge
in the review jurisdiction lies merely because an alternative view
could be possible. The scope and ambit of the review jurisdiction is
well-demarcated in terms of the several judgments of the Supreme
Court as cited by the respondent no.1 and otherwise. Hence, the
present case does not call for any review of the order of this Court
dated February 4, 2022.
25. Insofar as the allegation of fraud vitiating all is concerned, contrary to
the contemplation of Order VI Rule 4 of the Code of Civil Procedure,
the principle of which is applicable in the writ jurisdiction as well, no
particulars or detail of fraud or forgery has been pleaded or proved by
the review applicant in the writ petition.
26. Such allegation of fraud, in fact, is being levelled in specific terms for
the first time in the review application. As per the above discussions,
no component of suppression of any relevant material or patent
forgery has been made out at all by the distribution licensee. Hence,
the challenge on such score is also turned down.
27. In such view of the matter, since the review applicant has failed to
make out any case of review, RVW No.29 of 2022 is dismissed on
contest without any order as to costs.
28. Urgent certified copies of this order shall be supplied to the parties
applying for the same, upon due compliance of all requisite
formalities.
( Sabyasachi Bhattacharyya, J. )
