Kerala State Electricity Board v. Thomas Alappatt (Review Petition Nos. 758/2014 in WA 2086/2009 and 759/2014 in WA 2089/2009)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM &** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **TUESDAY, THE 28TH DAY OF APRIL 2020 / 8TH VAISAKHA, 1942** **RP.No.758 OF 2014 IN WA. 2086/2009** **AGAINST THE JUDGMENT IN WA 2086/2009 OF HIGH COURT OF KERALA** ## **REVIEW PETITIONERS/APPELLANTS/RESPONDENTS:** **1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY CHIEF ENGINEER, VAIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM.** **2. EXECUTIVE ENGINEER, ELECTRICAL DIVISION, KSE BOARD, ERNAKULAM.** **3. THE ASSISTANT EXECUTIVE ENGINEER, CENTRAL MAJOR SECTION, KSEB, ERNAKULAM.** **BY ADVS. SRI.RAJU JOSEPH (SR.) SRI.K.T.PAULOSE, SC, KSEB** ## **RESPONDENT/RESPONDENT/PETITINER:** **THOMAS ALAPPATT, ALAPPAT JEWELLERY BOTIQUE, 37/894, A1 PIONEER TOWERS, MARINE DRIVE, ERNAKULAM.** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 0307-2018, ALONG WITH RP.759/2014, THE COURT ON 28-04-2020 PASSED THE FOLLOWING:** R.P. Nos.758 & 759/2014 -:2:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM &** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **TUESDAY, THE 28TH DAY OF APRIL 2020 / 8TH VAISAKHA, 1942** **RP.No.759 OF 2014 IN WA. 2089/2009** **AGAINST THE JUDGMENT IN WA 2089/2009 DATED 11-06-2012 OF HIGH COURT OF KERALA** ## **REVIEW PETITIONERS/APPELLANTS/RESPONDENTS:** **1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY CHIEF ENGINEER, VAIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM.** **2. EXECUTIVE ENGINEER,ELECTRICAL DIVISION, KSE BOARD,ERNAKULAM.** **3. THE ASSISTANT EXECUTIVE ENGINEER, CENTRAL MAJOR SECTION, KSEB, ERNAKULAM.** **BY ADVS. SRI.RAJU JOSEPH (SR.) SRI.K.T.PAULOSE, SC, KSEB** ## **RESPONDENT/RESPONDENT/PETITINER:** **THOMAS ALAPPATT, ALAPPAT JEWELLERY BOTIQUE, 37/894, A1 PIONEER TOWERS, MARINE DRIVE, ERNAKULAM.** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 0307-2018, ALONG WITH RP.758/2014, THE COURT ON 28-04-2020 PASSED THE FOLLOWING:** R.P. Nos.758 & 759/2014 -:3:- ## **C.K. ABDUL REHIM & MARY JOSEPH, JJ.** **----------------------------------------------------Review Petition No. 758 of 2014 in Writ Appeal No. 2086 of 2009 & Review Petition No. 759 of 2014 in Writ Appeal No. 2089 of 2009** **-------------------------------------------------------** _Dated this the 28[th] day of April, 2020_ ## **C O M M O N O R D E R** ## _**Abdul Rehim, J.**_ The Review Petitioners are the appellants, seeking review of the common judgment in W.A. Nos.2086 and 2089 of 2009. The respondent herein is the respondent in both the writ appeals and the petitioner in the respective writ petitions. 2. Facts in a nutshell are as follows. Business premises of the respondent, wherein an electric connection under commercial tariff was provided, was inspected by the Anti Power Theft Squad(APTS) attached to the 1[st] appellant Board, on 08.12.2000. Alleging unauthorized usage of additional R.P. Nos.758 & 759/2014 -:4:- connected load to the extent of 10 KW., penalty was imposed on the respondent at three times of the fixed charges and the energy charges. O.P. No.10640/2001 was filed challenging the notice and the demand, as well as the order of the appellate authority dismissing the appeal filed against the imposition of penalty. O.P. No.14124/2001 was filed challenging the subsequent demand raised for payment of penalty, alleging continued usage of the unauthorized additional load. The above writ petitions were disposed by the learned Single Judge by following the ruling in **George Joseph v. Kerala State Electricity Board & others(2008 (4) KLT 610).** In the said case, this court held that, Regulation 43 of the Regulations relating to Conditions of Supply of Electrical Energy, 1990, cannot be invoked when there is no detection of any theft of energy. In respect of usage of unauthorized additional connected load, penal action can be taken only under Regulation 42(d) of the above said Regulations. Referring to R.P. Nos.758 & 759/2014 -:5:- the provisions contained in Regulation 42(d), it was held that, for unauthorized additional connected load, only three times of the fixed charges alone can be realised as penalty, and no penalty can be levied on energy charges, in so far as the actual energy consumption by the consumer had already been billed and paid. On the basis of the above ruling, the impugned demands were quashed, to the extent it demanded payment of penalty of three times on the energy charges. Revised demand was directed to be issued restricting the penalty on fixed charges alone. 3. The common judgment in the writ petitions were challenged at the instance of the Review Petitioners, in the writ appeals filed. The contention raised was that the term “tariff” includes not only fixed charges, but also energy charges. The purpose for which the provision enabling imposition of penalty was introduced is to prevent unauthorized usage, pilferage and malpractices by the consumers. Apart from the fact that the R.P. Nos.758 & 759/2014 -:6:- Board has to recoup the loss suffered by such pilferage, unauthorized usage or malpractice, it is intended to stop such practices by penalizing the consumers. It is for the said purpose, Regulations 42(d) and 43 were incorporated in the Conditions of Supply of Electrical Energy. It was introduced with the objective of deterring the consumers from causing any such loss through the pilferage, malpractice etc. The provisions contained in the Conditions of Supply of Electrical Energy forms part of the contract entered by the consumer with the Electricity Board. Therefore consumer cannot retract from the liability entangled with such mischiefs. It was contended that the dictum laid down by this court in the case in **J.D.T. Islam Orphanage Committee v. Assistant Engineer, KSEB(2007 (3) KLT 388)** as well as in **George Joseph v. Kerala State Electricity Board** ( _supra_ ) has not considered the above aspects and had failed to settle the law on the issue in its correct perspective. R.P. Nos.758 & 759/2014 -:7:- 4. The writ appeals were dismissed through a common judgment, dated 11[th] June, 2012. A Division Bench of this court found that the bills involved in the cases are relating to the period prior to introduction of the Electricity Act, 2003 and the 'Electricity Supply Code' framed thereunder. It was found that, under the erstwhile Regulation of the Condition of Supply of Electrical Energy, the Board cannot demand penal charges for the proportionate consumption of energy with respect to usage of the unauthorized additional connected load. It was found that the learned Single Judge had rendered the judgment on the basis of the dictum laid by this court in several other judgments. Therefore it is found that there is no scope for interference. However, the Division Bench had made it clear that, it will be left open to the Board to apply the new Supply Code for penalizing the unauthorized usage of electricity, if detected for any subsequent period. 5. Even though the writ appeals were dismissed by this R.P. Nos.758 & 759/2014 -:8:- court as early as on 11.06.2012, the above Review Petitions were filed only on 15[th] January, 2014, along with applications seeking condonation of an inordinate delay of 530 days. However, this court took a lenient view and condoned the delay. The main ground pointed out to seek review of the judgment is that, a Division Bench of this court in W.A. No.1231/2003, dated 21.07.2003 held that the amendments brought into Regulation 42(d) would operate only in the prospective. It was pointed out that, prior to 18.09.2002, the Board orders were to the effect that, on detection of unauthorized additional load, penal charges can be imposed at three times on the fixed charges as well as on the proportionate energy charges. But clause 42(d) of the Regulation relating to the Conditions of Supply of Electrical Energy, was modified through a notification issued by the Board, B.O. (FB) No.1292/2002(Plg.Comm.4206/2001) dated 18.09.2002. Going by the dictum contained in the judgment in W.A. No.1231/2003, the amendment cannot have R.P. Nos.758 & 759/2014 -:9:- any retrospective operation and therefore the legal position relied on by the learned Single Judge as well as by the Division Bench is not legally correct. Hence the review is sought for. 6. Sri. Raju Joseph, Senior Counsel appearing for the review petitioners had pointed out that, a Full Bench of this court through its judgment dated 29.10.2014 in W.A. No.1614 of 2007 and connected cases had settled the issue with respect to the retrospectivity of the amendments brought into Regulation 42(d) of the Conditions of Supply of Electrical Energy. Referring to Section 79(j) of the Electricity(Supply) Act, 1948, which confers power on the Board to frame the Regulations, it was found that, the said provision does not confer any power on the Board to make any Regulations which are inconsistent with the Act and the Rules. Section 79 does not contain any authority given by the primary legislation to make the Regulations retrospectively. Therefore the Regulations which are issued by the Board, would not even have the power and vigour as a Rule R.P. Nos.758 & 759/2014 -:10:- made by the State Government would have. It was found that, the power to make the Regulations, without conferring any express power to make the Regulations retrospectively, cannot be treated to read a particular Regulation as retrospective. Hence it was held that Regulation 42(d) operates only prospective from the date on which the Board had taken the decision. 7. The main argument is that, in view of the Full Bench decision, the impugned judgment requires reconsideration. It is pertinent to note that, the view taken by this court in various judgments like **JDT Islam Orphanage Committee** ( _supra_ ), **George Joseph** ( _supra_ ) and many other similar cases, which were followed by the Single Judge as well as by the Division Bench in deciding the issue involved, was that the levy of penalty on energy charges cannot be sustained, because the energy charges have not in fact escaped assessment in any manner. In other words, those findings are based on the R.P. Nos.758 & 759/2014 -:11:- conclusion that the energy consumed through the unauthorized additional load connected to the supply was already billed and paid by the consumer. A distinction was drawn with respect to the case of detection of theft, where intentional pilferage and malpractice exists. But in the case of usage of additional load than what was permitted, for the consumption and usage for the same purpose for which the connection was allotted, need to be distinguished from the case of intentional pilferage or misuse by way of theft. Therefore the judicial view which prevailed as on the date of deciding the cases was that, penalty for unauthorized additional connected load can be imposed only with respect to fixed charges. It is true that the question of retrospectivity of the amendment in the Regulations was decided subsequently by a Full Bench. But it is to be noted that the impugned judgments were not based on the question as to whether there can be any retrospectivity to the Regulations. Therefore the Review Petitioners cannot seek review of the R.P. Nos.758 & 759/2014 -:12:- judgment on the basis of the Full Bench decision, which came subsequently. 8. While deciding the review petitions, this court need to be cautious about the well settled principles governing review jurisdiction. The court cannot have any inherent power of review apart from the provisions contained in Section 114 and Order XLVII Rule 1 of the Code of Civil Procedure. Those provisions authorize review on three contingencies; (i) discovery of new and important matter or evidence which, after exercise of due diligence, was not within the knowledge of the party or could not be produced by him at the time when the order was made, (ii) on account of some mistake or error apparent on the face of the record and (iii) for any sufficient reasons. It is settled through various legal precedents that, any “sufficient reason” only means that a reason sufficient on grounds at least to those specified in the immediately preceding clauses. It is well settled that the power of review can be exercised only within the R.P. Nos.758 & 759/2014 -:13:- definitive limits provided. It may also be exercised on any analogous grounds. But it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. The principle above cited is supported by legal precedents settled by the apex court in **Smt. Meera Bhanja v. Smt. Nirmala Kumari Choudhury(AIR 1995 SC 455)** and **Aribam Tuleshwar Sharma v. Aribam Pishak Sharma(AIR 1979 SC 1047)** . An error apparent on the face of the record must be such an error which must strike one on the mere looking at the record and would not require any longdrawn process of reasoning on the points where there may conceivably be two opinions. The decision in **Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale(AIR 1960 SC 137)** will support the above proposition. In **Ajit Kumar Rath v. State of Orissa(AIR 2000 SC 85)** it was held by the Hon'ble Supreme Court that, a review cannot be claimed or asked merely for a fresh hearing or arguments or R.P. Nos.758 & 759/2014 -:14:- correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares on the face without any elaborate argument being needed for establishing it. Further, it is pertinent to note that, a review would not be permissible even if the court has proceeded on a wrong exposition of law or has wrongly decided on the question of law. In such cases, the decision can be subjected to appeal to higher forum. It cannot be, however, be subjected to review. The said dictum remains well settled though the decisions of the apex court as well as various High Courts. 9. When analyzed based on the dictum mentioned as above, we do not think that the subsequent settlement of the proposition of law by the Full Bench, is not a ground available to seek review of judgment, which is falling within the ambit and scope of Section 114 and Order XLVII Rule 1 of the Code of Civil Procedure. R.P. Nos.758 & 759/2014 -:15:- Consequently, we find that the above review petitions deserve no merit. Resultantly, the review petitions are hereby dismissed. **Sd/- C.K. ABDUL REHIM, JUDGE** . **Sd/- MARY JOSEPH, JUDGE** . ul/-