The Gulbarga Electricity Supply ... vs Jay Pee Cement Corporation Ltd., ...
2021 Latest Caselaw 5246 Kant

  IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH

           DATED THIS THE 02ND OF DECEMBER, 2021

                          BEFORE

           THE HON'BLE MR. JUSTICE E.S. INDIRESH

        REVIEW PETITION NO.200027 OF 2021
                        IN
   WRIT PETITION NO.204484 OF 2015 (KLR/RR-SUR)
                        &
        REVIEW PETITION NO.200028 OF 2021
                        IN
          WRIT PETITION NO.84166 OF 2011

IN REVIEW PETITION NO.200027 OF 2021

BETWEEN:

     1. The Gulbarga Electricity Supply Company Limited
        Station Road
        Kalaburagi - 585 101.
        Represented by its Managing Director.

     2. The Chief Engineer O & M (Ele)
        The Gulbarga Electricity Supply Company Limited
        Station Road
        Kalaburagi - 585 101.

     3. The Executive Engineer O & M (Ele)
        The Gulbarga Electricity Supply Company Limited
        Jevargi Road
        Kalaburagi - 585 101.

     4. The Assistant Executive Engineer O & M (Ele)
        The Gulbarga Electricity Supply Company Limited
        Shahabad- 585 229.
        Kalaburagi District
                                2




                                                    ...Petitioners
(by Sri S.S. Naganand, Senior Counsel for
 Sri Ravindra Reddy, Advocate)

AND:

Jay Pee Cement Corporation Ltd.
A Company incorporated in India
Under the provisions of
Companies Act, 1956
Having its Regd. Office at
Sector 128, Noida 201304 and
Factory at Shahabad-585 229.
Kalaburagi District
Represented by its authorised
Representating Sri Sushil Kumar Singh.

                                                  ...Respondent
(by Sri G.V. Chandrashekar, Advocate for
 Sri Vishwakarmaraj Nayak, Advocate)

      This Review Petition is filed under XLVII Rule 1 read with
Section 114 of Code of Civil Procedure praying to review the
Order dated 27th January, 2021 in Writ Petition No.204484 of
2015 by way of correction instead of the Karnataka Electricity
Regulatory Commission as competent authority may be
corrected as the authority under the Karnataka Electricity
Regulatory Commission (Consumer Grievance Redressal Forum
and Ombudsman) Regulation - 2004.

IN REVIEW PETITION NO.200028 OF 2021

BETWEEN:

       1. The Gulbarga Electricity Supply Company Limited
          Corporate Office
          Station Road
          Kalaburagi - 585 101.
                                 3




       2. The Chief Engineer O & M (Ele)
          The Gulbarga Electricity Supply Company Limited
          Corporate Office
          Station Road
          Kalaburagi - 585 101.

       3. The Executive Engineer
          The Gulbarga Electricity Supply Company Limited
          Corporate Office
          Jevargi Road
          Kalaburagi - 585 101.

      4. The Assistant Executive Engineer
          The Gulbarga Electricity Supply Company Limited
          Shahabad- 585 229.
          Kalaburagi District
                                                     ...Petitioner
(by S ri S.S.Naganand, Senior Counsel for
 Sri Ravindra Reddy, Advocate)

AND:

       1. Jay Pee Cement Corporation Ltd.
          (formerly known as Zawar Cements Private Limited)
          A Company incorporated in India
          Under the provisions of
          Companies Act, 1956
          Having its Regd. Office at No.b-105
          Kalpataru Plaza
          224, Bhavani Peth, Pune
          Maharashtra and unit at Shahabad
          Kalaburagi District-585 229.
          Karnataka State.

       2. The Karnataka Electricity Regulatory Commission
          VI Floor, "Mahalakshmi Chambers"
          M G Road, Bengaluru-560 001.
          By its Secretary.
                                                  ...Respondents
                                4




(by Shri G.V. Chandrashekar, Advocate for R1)

      This Review Petition is filed under XLVII Rule 1 read with
section 115 of Code of Civil Procedure, praying to review the
Order dated 27th January, 2021 in Writ Petition No.84166 of
2011 by way of correction instead of the Karnataka Electricity
Regulatory Commission as competent authority may be
corrected as the authority under the Karnataka Electricity
Regulatory Commission (Consumer Grievance Redressal Forum
and Ombudsman) Regulation - 2004.

      In these Review Petitions arguments being heard,
judgment reserved, coming on for "Pronouncement of Orders",
this day, the Court made the following:

                           ORDER

These Review petitions are filed by respondents 1 to 4 in

Writ Petition No.201934 of 2019 and connected writ petitions.

Since the issue involved in these review petitions are similar,

they are clubbed, heard together and disposed of by this

common order.

2. These Review Petitions are filed to clarify the "Forum" in

which the parties have to resolve their dispute as per the

observation made at paragraph 67 of the order dated 27 th

January, 2021 in the aforementioned writ petitions.

3. I have heard Sri S.S. Naganand, learned Senior Counsel

appearing for Sri Ravindra Reddy for the Review Petitioners and

Sri G.V. Chandrashekar, learned counsel appearing for the

respondent-GESCOM.

4. Sri S.S. Naganand, learned Senior counsel appearing for

the Review Petitioners contended that this Court, while disposing

of the writ petition, answered Point No.1 in favour of the

Petitioner-GESCOM, however, relegated the parties to approach

the competent authority in respect of Point No.2. He further

invited the attention of the Court to paragraph 27 of the Order

under review and submitted that the respondent herein has to

approach the "Forum" set up under Karnataka Electricity

Regulatory Commission (Consumer Grievance Redressal Forum

and Ombudsman) Regulations, 2004, (for short hereinafter

referred to as 'Regulations'), however, there is a typographical

error at paragraph 67 of the order under review, wherein this

Court had directed the respondent herein to file appropriate

application/appeal before the Karnataka Electricity Regulatory

Commission. He further contended that the aforementioned

Regulations are framed by virtue of the power under Section

86(1)(f) and Section 181 of the Electricity Act, 2003 and

therefore, he sought to review the order dated 27 th January,

2021.

5. Per contra Sri G.V. Chandrashekar, learned counsel

appearing for the respondent-GESCOM referring to the judgment

of this Court in writ petition No.38957 of 2011 and connected

writ petitions decided on 25 th September, 2012, urged that the

appropriate Forum is the Karnataka Electricity Regulatory

Commission and not the "Forum" constituted under the

aforementioned Regulations. He also referred to certain orders

passed by the Karnataka Electricity Regulatory Commission and

contended that, as per the direction of this Court in the writ

petitions, writ petitioner had approached the KERC and the

matter is at the final stage and therefore, sought for dismissal of

these Review Petitions.

6. In reply, Sri S.S. Naganand, learned Senior Counsel

submitted that the issues involved in writ petitions are different

from the facts involved in the Orders referred to by the learned

counsel for the respondent and further submitted that the

competent authority to resolve the dispute, as per paragraph 26

of the Writ Petition, is the Authority constituted under the

Regulations to decide the Electricity dues/quantify the arrears of

due.

7. In the light of submission made by the learned counsel

appearing for the parties, I have carefully examined the

provisions contained under Section 82 of the Electricity Act,

2003 (for short hereinafter referred to as the 'Act'), which

provides for constitution of State Commission. Section 180 of

the Act provides powers of State Governments to make Rules.

Section 181 of the Act provides for State Commission to make

Regulations. The aforementioned Regulations are made in

pursuance of the powers conferred on the Commission by

Section 181 read with sub-Sections (5), (6) and (7) of Section

42 of the Act. In these Review Petitions the controversy is with

regard to whether the appeal filed by the respondent-Writ

petitioner before the KERC is maintainable or not? Having taken

note of the submission made by the learned counsel appearing

for the parties and the observation made by this Court at

paragraph 67 of the Order under review, I am of the view that

the aspects involving primary question of jurisdiction or the

matters which go to very root of jurisdiction, are to be dealt with

and heard by the Commission itself. This aspect of the matter

relating to whether the Commission constituted under KERC or

the Commission constituted under the Regulations is having

jurisdiction or not, cannot be considered in these Review

Petitions since the appeal filed by the respondent herein is

pending consideration before the Commission and any such

observation made by this Court in these Review Petitions will

have a direct bearing on the jurisdiction of the Commission and

therefore, I am of the view that it is open for the review

petitioners to urge all the grounds before the Commission

including the jurisdictional aspects before the said Commission in

the pending appeal; and it is up to the Commission to consider

the jurisdictional issue also. Therefore, entertaining review

petition relating to jurisdiction aspect is premature and that has

to be gone into by the said Commission while considering the

appeal on merits. Hon'ble Apex Court in the case of MAGADH

SUGAR AND ENERGY LIMITED v. STATE OF BIHAR AND OTHERS

reported in 2021 SCC Online SC 801 had an occasion to deal

with regard to the jurisdictional aspects under the Electricity Act

and in the said judgment it is held thus:

"25. While a High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies. This principle has been crystallized by this Court in Whirpool Corporation v. Registrar of Trademarks, Mumbai and Harbanslal Sahni v. Indian Oil Corporation Ltd. Recently, in Radha Krishan Industries v. State of Himachal Pradesh & Ors a two judge Bench of this Court of which one of us was a part of (Justice D Y Chandrachud) has summarized the principles governing the exercise of writ jurisdiction by the High Court in the presence of an alternate remedy. This Court has observed:

"28. The principles of law which emerge are that:

(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;

(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;

(iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution;

(b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;

(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;

(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and (1998) 8 SCC 1 (2003) 2 SCC 107 2021 SCC OnLine SC 334.

(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with."

26. The principle of alternate remedies and its exceptions was also reiterated recently in the decision in

Assistant Commissioner of State Tax v. M/s Commercial Steel Limited. In State of HP v. Gujarat Ambuja Cement Ltd this Court has held that a writ petition is maintainable before the High Court if the taxing authorities have acted beyond the scope of their jurisdiction. This Court observed:

"23. Where under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute. It was noted by this Court in L. Hirday Narain v. ITO [(1970) 2 SCC 355: AIR 1971 SC 33] that if the High Court had entertained a petition despite availability of alternative remedy and heard the parties on merits it would be ordinarily unjustifiable for the High Court to dismiss the same on the ground of non-exhaustion of statutory remedies; unless the High Court finds that factual disputes are involved and it would not be desirable to deal with them in a writ petition."

27. The above principle was reiterated by a three-

judge Bench of this Court in Executive Engineer v. Seetaram Rice Mill. In that case, a show cause notice/provisional assessment order was issued to the assessee on the ground of Civil Appeal No. 5121 of 2021

(2005) 6 SCC 499 (2012) 2 SCC 108 an unauthorized use of electricity under Section 126 (1) of the Electricity Act 2003 and a demand for payment of electricity charges was raised. The assessee contended that Section 126 was not applicable to it and challenged the jurisdiction of the taxing authorities to issue such a notice, before the High Court in its writ jurisdiction. The High Court entertained the writ petition. When the judgment of the High Court was appealed before this Court, it held that the High Court did not commit any error in exercising its jurisdiction in respect of the challenge raised on the jurisdiction of the revenue authorities. This Court made the following observations:

"81. Should the courts determine on merits of the case or should they preferably answer the preliminary issue or jurisdictional issue arising in the facts of the case and remit the matter for consideration on merits by the competent authority? Again, it is somewhat difficult to state with absolute clarity any principle governing such exercise of jurisdiction. It always will depend upon the facts of a given case. We are of the considered view that interest of administration of justice shall be better subserved if the cases of the present kind are heard by the courts only where they involve primary questions of jurisdiction or the matters which go to the very root of jurisdiction and where the authorities have acted beyond the provisions of the Act.

82. It is argued and to some extent correctly that the High Court should not decline to exercise its jurisdiction merely for the reason that there is a statutory alternative remedy available even when the case falls in the above

stated class of cases. It is a settled principle that the courts/tribunal will not exercise jurisdiction in futility. The law will not itself attempt to do an act which would be vain, lex nil frustra facit, nor to enforce one which would be frivolous--lex neminem cogit ad vana seu inutilia--the law will not force anyone to do a thing vain and fruitless. In other words, if exercise of jurisdiction by the tribunal ex facie appears to be an exercise of jurisdiction in futility for any of the stated reasons, then it will be permissible for the High Court to interfere in exercise of its jurisdiction. This issue is no longer res integra and has been settled by a catena of judgments of this Court, which we find entirely unnecessary to refer to in detail..."

8. Further, it is also settled principle of law that unless the

review petitioner points out error apparent on the face of record,

no review jurisdiction shall be exercised. That apart, review

jurisdiction cannot be converted into an appellate jurisdiction to

re-hear the entire case afresh. This view of mine is fortified by

the law declared by the Hon'ble Apex Court in the case of

KAMLESH VERMA v. MAYAWAT AND OTHERS reported in AIR

2013 SC 3301, in which the Apex Court at paragraph 16 of the

judgment, summarised the principles to be followed while

exercising review jurisdiction. The same is extracted below:

"16. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:

A) When the review will be maintainable:-

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason.

The words "any other sufficient reason"

has been interpreted in Chhajju Ram vs. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius & Ors., (1955) 1 SCR 520, to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India vs. Sandur Manganese & Iron Ores Ltd. & Ors., JT 2013 (8) SC 275.

B) When the review will not be maintainable:

(i)      A repetition of old and overruled
         argument is not enough to reopen
         concluded adjudications

(ii)     Minor mistakes       of   inconsequential
         import

(iii)    Review proceedings cannot be equated
         with the original hearing of the case.

(iv)     Review is not maintainable unless the

material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error.

(vi) The mere possibility of two views on the subject cannot be a ground for review.

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition

(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."

9. Following the principles laid down by the Hon'ble Apex

Court in the aforementioned decisions, I am of the view that the

review petitioners have not made out a case to review the order

dated 27th January, 2021. However, it is made clear that in view

of the dictum referred to above, it is open for the review

petitioners to raise contention regarding the jurisdiction before

the Commission, if so advised, and the Commission is at liberty

to consider the same, if such questions are raised and shall pass

suitable orders in accordance with law. Review Petitions are

accordingly disposed of.

Sd/-

JUDGE

lnn