Ajayan K. Madhavan v. Chief Engineer, Transmission (North), Kerala State Electricity Board, and State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR ``` ## **`&`** ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY ``` ``` WEDNESDAY, THE 16[TH] DAY OF NOVEMBER 2022 / 25TH KARTHIKA, 1944 ``` ``` RP NO. 1017 OF 2022 ``` ``` AGAINST THE JUDGMENT IN WA 1344/2022 OF HIGH COURT OF KERALA ``` ## **`REVIEW PETITIONER/APPELLANT/WRIT PETITIONER:`** ``` AJAYAN K.MADHAVAN, AGED 52 YEARS, S/O.MADHAVAN, KAKKATTUPARAMBIL HOUSE, M.C.ROAD, PULLUVAZHY, PERUMBAVOOR, ERNAKULAM DISTRICT, PIN – 683 541. ``` ``` BY ADVS. VIJU THOMAS M.MEENA JOHN ``` ## **`RESPONDENTS/RESPONDENTS/RESPONDENTS:`** ``` 1THE CHIEF ENGINEER, TRANSMISSION (NORTH), KERALA STATE ELECTRICITY BOARD, VYDUTHI BHAVANAM, GHANDHI ROAD, KOZHIKODE, PIN – 673 011. 2STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT FOR ELECTRICITY DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695 001. ``` ``` BY ADV KEERTHIVAS GIRI ``` ``` THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 16.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **R.P.1017/22 in W.A.1344/22** **2** ## **JUDGMENT** Dated this the 16[th] day of November, 2022 ## **S.Manikumar, C.J.** Instant review petition is filed seeking a review of the judgment dated 19.09.2022 in W.A.No.1344 of 2022, by which, this court dismissed the writ appeal by holding thus: “7. After analysing the facts and figures, we are of the considered opinion that the learned single Judge was right in holding so since the Board cannot be said to be responsible for retention of the security deposit which had occurred solely due to the writ petition filed by another bidder and the stay granted by this court. Therefore, in our view, there was no arbitrariness or illegality on the part of the Board officials in that regard, to have exercised the powers conferred under the writ jurisdiction. 8. In that view of the matter, we do not think the appellant has made out any case of jurisdictional error or other legal infirmities justifying our interference in the judgment of the learned single Judge in an intra court appeal preferred under Section 5 of the Kerala High Court Act, 1958.” ## 2. Short facts leading to the filing of the writ appeal are **R.P.1017/22 in W.A.1344/22** **3** as under: Appellant/petitioner is a contractor who had quoted for the work “Upgradation of 12.5 km of 66KV Pudukkad Kattoor SC Line to 110 KV DC Line” for which the tender was invited by the 1[st] respondent Chief Engineer, with a condition for remittance of Rs.1,00,000/- towards security. Though the appellant was declared as the lowest bidder vide Exhibit P1 proceedings dated 30.06.2016 of the first respondent, the work was not awarded to the appellant for the reason that the second lowest bidder filed W.P.(C)No.22917 of 2016 and obtained a stay from awarding the work and due to which, the security deposit of the appellant was withheld by the 1[st] respondent, which persuaded the appellant to approach this court by filing W.P.(C)No.22573 of 2022. The learned single Judge disposed of the writ petition granting liberty to the appellant to realise the interest from the petitioner in W.P. (C).No.22197 of 2016 by taking the remedy under Section 9 of the Code of Civil Procedure. Challenging the said judgment, writ appeal was filed. **R.P.1017/22 in W.A.1344/22** **4** 3. Grounds, based on which the review petition is filed, are as under: - A. This court while disposing of the writ appeal took away the right granted to the review petitioner to proceed against the petitioner in WP(C)No.22197 of 2016 under Section 9 of CPC, without considering the legality of the said finding of the learned single Judge. Therefore, there is error apparent on the face of the record. B. The review petitioner by an inadvertent omission/mistake failed to produce the counter affidavit filed by the first respondent in WP(C) No.22197 of 2016, in which it was affirmed by the first respondent that the review petitioner even otherwise was not eligible for the subject matter work, in view of surrendering of another work and had it been so, the first respondent ought to have rejected the bid of the review petitioner and the security deposit of the review petitioner ought to have been released immediately without waiting for the disposal of WP(C)No.22197 of 2016. Therefore, there is no nexus between the disposal of the WP(C)No.22197 of 2016 and releasing of the security deposit to the petitioner, as pleaded by the respondents. - C. The petitioner is entitled for interest @12% per annum for the security amount deposited by him from the date **R.P.1017/22 in W.A.1344/22** **5** of the deposit, since the review petitioner had arranged the said amount by way of loan, for which he was paying interest and further on the ground that the said amount was being utilised by the KSEB for its benefit for the long six years. 4. Though the review petitioner made arguments based on the above grounds, we have not taken away the right of the appellant to proceed against the writ petitioner in W.P. (C)No.22917 of 2016. While addressing the said aspect, in paragraph No.6 of the judgment in W.A.No.1344 of 2022 dated 19.09.2022, we have ordered thus: “6. Therefore, it can be seen that there was no laches or deliberate action on the part of the Electricity Board to release the security deposit made by the appellant but the same had happened only due to the stay granted by this court against the award of the tender. We also notice that the appellant who was a party to the said writ petition did not take any steps either to vacate the stay order, or for the release of the security amount. Therefore, the Electricity Board cannot be said to be responsible for the delay in releasing the security deposit. It was taking note of the said aspects that the learned single Judge has left open the liberty of the appellant to explore the possibility to proceed **R.P.1017/22 in W.A.1344/22** **6** against the writ petitioner in W.P.(C)No.22197 of 2016 claiming interest.” 5. Merits of the contentions raised in the writ appeal have been considered and, accordingly, this court sustained the judgment in W.P.(C)No.22573 of 2022. Though once again arguments have been made on the merits of the appeal, we are not inclined to accept the same, as review petition cannot be made under the guise of an appeal. Reference can be made to few decisions: ## (i) In **Thungabhadra Industries Ltd.** v. **Govt. of A.P.** [AIR 1964 SC 1372], the Hon'ble Supreme Court held as under: "What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an 'error apparent on the face of the record'. The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an 'error apparent on the face of the record', for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error." **R.P.1017/22 in W.A.1344/22** **7** (ii) In **Parsion Devi and Others** v. **Sumitri Devi and Others** [(1997) 8 SCC 715], relying upon the decisions in **Smt. Meera Bhanjia v. Smt. Nirmala Kumari Chowdhury** [AIR 1995 SC 455] and **Abhiram Taleshwar Sharma v. Abhiram Pishak Shartna and Ors.** [(1979) 4 SCC 389], the Hon'ble Supreme Court held as under: "Under Order XLVII, Rule 1, CPC a judgment may be open to review inter alia, if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order XLVII, Rule 1, CPC. In exercise of the jurisdiction under Order XLVII, Rule 1, CPC it is not permissible for an erroneous decision to be reheard and corrected. A review petition, it must be remembered has a limited purpose and cannot be allowed to be an appeal in disguise." ## (iii) In **Lily Thomas** v. **Union of India** , [(2000) 6 SCC 224], ## the Hon'ble Supreme Court held as under: “52. The dictionary meaning of the word "review" is the act of looking, offer something again with a view to correction or improvement". It cannot be denied that the review is the creation of a statute. This Court in **Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji** (AIR 1970 SC 1273), held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of **R.P.1017/22 in W.A.1344/22** **8** law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error. 56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise.” ## (iv) In **Kerala State Electricity Board** v. **Hitech Electrothermics & Hydropower Ltd. and Ors.** [(2005) 6 SCC 651], the Hon'ble Supreme Court held as under: “10.....In a review petition it is not open to this Court to re-appreciate the evidence and reach a different conclusion, even if that is possible. Learned Counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review Petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise.” **R.P.1017/22 in W.A.1344/22** **9** ## (v) In **Kamlesh Verma** v. **Mayawati and Others** , [(2013) 8 SCC 320], while examining the scope of review, the Hon'ble Supreme Court held as under: “15. 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 Code of Civil Procedure. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction.” In view of the above, we find no reason to interfere with the impugned judgment. Hence the review petition is dismissed. Pending interlocutory applications, if any, shall stand closed. Sd/- **S.Manikumar Chief Justice** Sd/- **Shaji P.Chaly Judge** **vpv** **10** ## **R.P.1017/22 in W.A.1344/22** ## **`APPENDIX OF RP 1017/2022`** ``` PETITIONER ANNEXURES ``` ``` Annexure 1 ``` ``` THE COUNTER AFFIDAVIT FILED ON BEHALF OF FIRST RESPONDENT IN WP© NO.22197/16. ``` //true copy// P.A. to Judge