Delhi High Court
Gurnam Kaur (Deceased) Through ... vs Bses Rajdhani Power Ltd. & Ors on 17 March, 2017
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% DATE OF DECISION: 17TH MARCH, 2017
+ CS(OS) No.2691/2015
GURNAM KAUR (DECEASED)
THROUGH LR'S ..... Plaintiff
Through: Mr. Manish Vashisht, Mr. Sameer
Vashisht, Ms. Trisha Nagpal & Ms.
Astha Gupta, Advs.
Versus
BSES RAJDHANI POWER LTD. & ORS ..... Defendants
Through: Mr. Sandeep Sethi, Sr. Adv. with Mr.
Anupam Varma & Ms. Niti Arora,
Advs. for D-1 / Review Petitioner.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
Review Petition No.38/2017 (under Section 114 read with Section 47
Rule 1 and Section 151 CPC) & IA No.1154/2017 (for condonation of
118 days delay in filing Review Petition).
1.
The defendant no.1 BSES Rajdhani Power Ltd. (BSES RPL) seeks
review / recall of the order and partial decree dated 14th July, 2016.
2. The plaintiff instituted this suit for mandatory injunction directing
BSES RPL, South Delhi Municipal Corporation (SDMC) and Divisional
Head (O&M) of BSES RPL to remove the transformer and the electric pole
installed in the portion of the properties No.D-1/20 and D-1/21, Rajouri
Garden, New Delhi of the plaintiff and for recovery of arrears of and future
mesne profits / damages for use and occupation.
3. The suit was entertained.
4. BSES RPL filed a written statement inter alia pleading (a) that the
subject transformer has been in existence for over 30 years; and, (b) that
BSES RPL is unable to locate the documents executed by the then owner of
the property permitting installation of the said transformer and have sought
the same from Delhi Power Corporation Limited (DPCL) being the holding
company created while unbundling erstwhile Delhi Vidyut Board (DVB)
during whose regime the subject transformer and electric pole were
installed.
5. SDMC did not file any written statement and the counsel for the
plaintiff stated that SDMC was impleaded only because it was the stand of
BSES RPL in response to the legal notice preceding the suit that SDMC had
to allocate alternative place for shifting of the said transformer; else no relief
had been claimed against SDMC.
6. The suit came up for framing of issues on 14th July, 2016 when the
counsel for the plaintiff stated that the written statement of BSES RPL did
not disclose any defence to the suit insofar as for the relief of mandatory
injunction and the plaintiff was entitled to a decree forthwith.
7. For the reasons recorded in the order dated 14th July, 2016, merit was
found in the aforesaid contention of the counsel for the plaintiff and the suit,
insofar as for the relief of mandatory injunction, was decreed and a decree
for mandatory injunction was passed in favour of the plaintiff and against
the defendant no.1 BSES RPL directing the defendant no.1 BSES RPL to
remove the transformer and the electric pole in property No.D-1/20, Rajouri
Garden, New Delhi within three months therefrom.
8. As far as the claim of the plaintiff for recovery of damages / mesne
profits was concerned, issues were framed thereon and the same was put to
trial, which is underway.
9. The defendant no.1 BSES RPL seeks review / recall pleading i) that
the review applicant / defendant no.1 BSES RPL at the time of hearing
failed to bring to the notice of this Court the framework of the Electricity
Act, 2003 and resultantly the decree for mandatory injunction is contrary
thereto; ii) that in terms of Section 145 of the Electricity Act, the jurisdiction
of the Civil Court to take cognizance of the suit of the civil nature covered
under the Electricity Act stands excluded and no court shall grant injunction
in respect of any action taken or to be taken in pursuance of powers
conferred under the Electricity Act; iii) the Electricity Act provides specific
mechanism and procedure to be followed by a person who seeks removal /
shifting of any existing electricity distribution network; iv) that the sub-
station kiosk housing transformer of 990 KVA capacity was installed more
than 30 years ago and the arrangement as existed between the owner of the
property and the erstwhile Delhi Electric Supply Undertaking (DESU) for
installation and operation of distribution transformer subsisting at the
plaintiff's premises continues; v) that in view of Section 60(b) of the Indian
Easements Act, 1882, the plaintiff is restrained from terminating the said
licence since the licensee has executed a work of a permanent character and
incurred expenditure; vi) that the pole and the transformer are part of the
distribution system as defined in Section 2(19) of the Electricity Act; vii)
that the review applicant / defendant no.1 BSES RPL has universal service
obligation which it would be unable to meet if the transformer and the
electricity pole presently housed / installed in the property of the plaintiff is
to be removed; viii) that the review applicant / defendant no.1 BSES RPL is
not the land owning agency and has no other place / space to shift and
relocate the transformer / sub-station so that the continuity and reliability of
supply remains unaffected; ix) that in the eventuality of transformer / sub-
station being removed, the electric supply to meet the load of the consumers
being supplied through the transformer shall be disrupted; x) that the
aforesaid transformer and pole form part of the electricity distribution assets
which were transferred to the applicant / defendant no.1 in terms of Delhi
Electricity Reforms (Transfer Scheme) Rules, 2001.
10. The review application came up before this Court first on 1st February,
2017 when the counsel for the plaintiff appeared on advance notice and
considering the nature of the ground on which review was sought, need to
call for reply was not felt and the counsels were heard and order reserved.
11. The senior counsel for the plaintiff has referred i) BSES Yamuna
Power Ltd. Vs. Roshan Masood 2013 SCC OnLine Del 4611; ii) B.L.
Kantroo Vs. BSES Rajdhani Power Ltd. 2009 (108) DRJ 239 (DB); iii)
BSES Rajdhani Power Ltd. Vs. Ashok Kumar 152 (2008) DLT 723; and,
iv) Chimajirao Kanhojirao Shirke Vs. Oriental Fire & General Insurance
Co. Ltd. (2000) 6 SCC 622.
12. I however do not feel the need to go into the merits of the grounds
urged for review.
13. The defendant no.1 / review applicant BSES RPL fairly admits that
what is now urged before the Court was not pleaded or urged when the order
of which review is sought was passed.
14. A review is not intended to be a re-hearing of the case and the power
of review is not to be used, to on a subsequent day, give a different verdict.
The present proceeding is a suit governed by the provisions of the Code of
Civil Procedure, 1908 and it is the settled principle of law that suits are to be
decided on the basis of pleadings. Admittedly, there was absolutely nothing,
as is being urged today, in the pleadings on the date when the suit, in so far
as for the relief of mandatory injunction, was decided. The power of review
is confined to a case of discovery of new and important material and
evidence which after exercise of due indulgence could not be placed by the
parties before the Court at the time of hearing and on account of mistake
apparent on the face of the record. The pleas sought to be taken by the
defendant no.1 / review applicant BSES RPL are legal pleas and which
require a foundation in the pleadings and which admittedly did not exist.
Else, the law is very clear that review is not a re-hearing.
15. Supreme Court in Meera Bhanja Vs. Nirmala Kumari Choudhury
(1995) 1 SCC 170 held that review proceedings are not by way of an appeal
and have to be strictly confined to the scope and ambit of Order XLVII Rule
1 of the CPC and the power of review is not to be exercised on the ground
that the decision was erroneous on merits. That was held to be the province
of a Court of appeal. A power of review, it was held, is not to be confused
with the appellate power which may enable an Appellate Court to correct all
manner of errors committed. It was further held that an error which has to be
established by a long drawn process of reasoning on points where there may
conceivably be two opinions, can hardly be said to be an error apparent on
the face of the record. In Tamil Nadu Electricity Board Vs. N. Raju
Reddiar (1997) 9 SCC 736 also, it was emphasised that review petition is
not and should not be an attempt for hearing the matter again on merits. To
the same effect is N. Anantha Reddy Vs. Anshu Kathuria (2013) 15 SCC
534.
16. Even otherwise I am unable to justify in law the continuance of the
installations of the defendant no.1 / review applicant BSES RPL in the
property of the plaintiff. The defendant no.1 / review applicant BSES RPL
even till date has not disclosed any right to continue to install its electricity
pole and transformer in the property of the plaintiff, thereby depriving the
plaintiff of the beneficial use and true value thereof.
17. I may in this regard notice that in Lajpat Rai Sobti Vs. Government
of NCT of Delhi 2011 (121) DRJ 106 and vide order dated 18th February,
2011 in W.P.(C) No.1035/2011 titled Lumax Industries Ltd. Vs.
Government of NCT of Delhi also directions had been issued by me for
removal of electricity apparatus installed in the properties of the writ
petitioners therein and for continuance whereof also no right was disclosed.
Similar review petitions were filed therein also and instead of deciding the
same on merits, attempt was made, by summoning the land owning
agencies, to make a provision for shifting of the said apparatus. The process
of having the said electricity apparatus removed in Lumax Industries Ltd
supra took more than five years and in Lajpat Rai Sobti supra still
continuing. An electricity utility, merely on the ground of providing
electricity to others, cannot squat on the private property of any person
thereby depriving the said person from beneficial use and enjoyment of
his/her property.
18. It is the responsibility of the defendant no.1 / review applicant BSES
RPL and other State agencies to make alternative provisions for the
installation of the transformer and electricity pole presently hoised in the
property of the plaintiff and this Court in exercise of suit jurisdiction cannot
do the exercise as was done in Lumax Industries Ltd. supra and is being
done in Lajpat Rai Sobti supra.
No ground for review is thus made out.
Dismissed.
RAJIV SAHAI ENDLAW, J.
MARCH 17, 2017
'gsr'
