RAHMANIYA ARABIC COLLEGE COMMITTEE v. KERALA STATE ELECTRICITY BOARD LTD. and others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` WEDNESDAY, THE 3[RD] DAY OF AUGUST 2022 / 12TH SRAVANA, 1944 ``` ``` RP NO.591 OF 2020 ``` ``` AGAINST THE ORDER/JUDGMENTWP(C) 34635/2009 OF HIGH COURT OF ``` ## **`KERALA`** ## **`REVIEW PETITIONER/S:`** ## **`RAHMANIYA ARABIC COLLEGE COMMITTEE`** ``` REPRESENTED BY ITS SECRETARY, C.H. KUNJABDULLA MUSALIYAR, S/O. C.H. KUNHAMMAD MUSALIYAR (LATE), P.O. KATAMERI, VILLYAPALLI, VATAKARA, KOZHIKODE-673542. ``` ``` BY ADVS. T.T.MUHAMOOD SRI.A.RENJIT SRI.V.E.ABDUL GAFOOR SRI.A.MOHAMMED SAVAD ``` ## **`RESPONDENT/S:`** ``` 1 THE KERALA STATE ELECTRICITY BOARD LTD., REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN,THIRUVANANTHAPURAM-695001. 2 THE CHIEF ENGINEER (DISTRIBUTION NORTH), VYDYUTHI BHAVANAM, KSEB LIMITED, KOZHIKODE-32. 3 THE DEPUTY CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD LIMITED, ELECTRICAL CIRCLE, VATAKARA, KOZHIKODE-673542. 4 THE ASSISTANT ENGINEER,ELECTRICAL SECTION, KSEB LIMITED, AYANCHERRY, KOZHIKODE-673513. 5 STATE ELECTRICITY OMBUDSMAN, THAANATH BUILDING, CLUB JUNCTION, POOKKATTUPADY ROAD, EDAPPAY TOLL, KOCHI-682024. ``` ``` BY ADV SRI.R.SUDHEER GANESH KUMAR,SC,KSHWCS LT ``` ``` THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 03.08.2022 ALONG WITH CM.APPL.NO.1 OF 2020,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 RP NO. 591 OF 2020 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` Wednesday, the 3[rd] day of August 2022 / 12th Sravana, 1944 CM.APPL.NO.1/2020 IN RP NO.591 OF 2020 IN WP(C)34635/2020 ``` ## **`REVIEW PETITIONER:`** 1. **`RAHMANIYA ARABIC COLLEGE COMMITTEE, REP. BY ITS SECRETARY, C.H. KUNJABDULLA MUSALIYAR, S/O. LATE C.H. KUNHAMMAD MUSALIYAR, P.O. KATAMERI, VILLYAPALLI, VATAKARA, KOZHIKODE-673542.`** ## **`RESPONDENTS/RESPONDENTS:`** 1. **`THE KERALA STATE ELECTRICITY BOARD LTD., REP. BY ITS SECRETARY, VYDYUTHI BHAVAN, THIRUVANANTHAPURAM-695001.`** 2. **`THE CHIEF ENGINEER (DISTRIBUTION NORTH), VYDYUTHI BHAVANAM, K.S.E.B LTD., KOZHIKODE-32.`** 3. **`THE DEPUTY CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL CIRCLE, VATAKARA, KOZHIKODE-673542.`** 4. **`THE ASSISTANT ENGINEER, ELECTRICAL SECTION, KSEB LTD., AYANCHERRY, KOZHIKODE-673513.`** 5. **`STATE ELECTRICITY OMBUDSMAN, THAANATH BUILDING, CLUB JUNCTION, POOKKATTUPADY ROAD, EDAPPAY TOLL, KOCHI-682024.`** ``` This Application coming on for orders along with R.P.No.591 of 2020, upon perusing the application and the affidavit filed in support thereof, and upon hearing the arguments of T.T.MUHAMOOD, SRI.A.RENJIT, SRI.V.E.ABDUL GAFOOR, SRI.A.MOHAMMED SAVAD, Advocates for the petitioners and of SRI.R.SUDHEER GANESH KUMAR,SC,KSHWCS LT, SRI.R.SUDHEER GANESH KUMAR,SC,KSHWCS LT, SRI.R.SUDHEER GANESH KUMAR,SC,KSHWCS LT, SRI.R.SUDHEER GANESH KUMAR,SC,KSHWCS LT Advocates for the respondents, the court passed the following: ``` 3 RP NO. 591 OF 2020 ## **ORDER** The petitioner is a Society registered under the Societies Registration Act, which is running various institutions, namely, RAC Destitute Study Centre. RAC Destitute Study Centre is having an electricity connection with Consumer No.4332 under KSEB Electrical Section, Ayanchery. With effect from 01.12.2007, the petitioner’s institution has been classified under LT-VIIA tariff from LT-VIA tariff and the petitioner was issued with Exts.P7 to 9, Ext.P13 and Ext.P15. The petitioner had approached this Court in the writ petition seeking various reliefs including a writ of certiorari to quash Exts.P7 to P9 and a declaration that the electricity connection to RAC Destitute Study Centre has to be classified under LT-VIA, LT-VIB or LT-VID category. That writ petition was disposed of by judgment dated 30.10.2014. Paragraphs 3, 4 and 5 of that judgment read thus: “3. The question involved in this Writ Petition is as to whether private self-financing educational institutions are liable to be charged under LT-VIIA tariff, in distinction with private aided educational institutions, which are charged under LT-VIA tariff. The issue stands settled in favour of the petitioner, as per a Division Bench decision of this Court in **Bro. Joseph Antony v. K.S.E.B [2009 (3) KLT 1022]** . It is brought to my notice that, the above decision is under challenge before the Apex Court in various Special Leave Petitions filed by the KSEB, and 4 ## RP NO. 591 OF 2020 the Apex Court had stayed operation of the said judgment. However, unless the legal position is reversed, this Court is bound to follow the decision in **Bro. Joseph Antony's** case (supra), in view of the principle laid down by this Court in **Abdu Rehiman Vs. District Collector, Malappuram [2009 (4) KLT 485]** . 4. The further challenge in this Writ Petition is against Exts.P7 to 9, P13 and P15 demand notices whereby the petitioner was requested to make payment of arrears of electricity charges at enhanced rate, i.e., under LT-VIIA tariff. The question regarding liability of the petitioner for payment at enhanced rate will depend upon outcome of the decision of the Apex Court. In view of the stay granted by the Apex Court, I am not inclined to restrain the respondent Board from charging the petitioner under the enhanced tariff. This is because of the fact that, if ultimately the Apex Court upholds the change of tariff, the respondent Board will be put to prejudice. On the other hand, the petitioner can seek refund/adjustment if the decision is ultimately in favour of the consumers. But it is only just and proper to restrain the respondent Board from recovering the arrears on the basis of the enhanced tariff, till the matter is ultimately decided by the Apex Court. 5. Therefore this Writ Petition is disposed of directing the respondents to keep in abeyance recovery of arrears demanded under Exts.P7 to P9, P13 and P15 notices till ultimate decision is rendered by the Apex Court in the SLPs referred above. It is made clear that the respondents are free to charge the petitioner under LT-VIIA tariff for continued consumption of energy. It is made clear that payments made under the enhanced tariff will be liable to be 5 ## RP NO. 591 OF 2020 refunded/adjusted in case the Apex Court upholds the judgment in Bro. Joseph Antony's case (supra). It is also made clear that the respondents will be entitled to recover the arrears, if the change of tariff is ultimately upheld by the Apex Court.” 2. Seeking review of the said judgment dated 30.10.2014, the petitioner is before this Court in this review petition, filed invoking the provisions under Order XLVII Rule 1 read with Section 114 of the Code of Civil Procedure, 1908. The petitioner filed this review petition along with an application to condone the delay of 2074 days in filing the review petition. Respondents have filed counter affidavit dated 19.11.2020, opposing the delay condonation application. 3. Heard the learned counsel for the petitioner and also the learned Standing Counsel for KSEB. 4. The contention raised in this review petition is that electricity connection in the petitioner’s institution, namely, RAC Destitute Study Centre, with Consumer No.4332-KSEB Electrical Section, Ayanchery, has to be classified under LT-VIA tariff, instead of LT-VIIA, as per the tariff order application for the relevant period. 5. As pointed out by the learned Standing Counsel for KSEB, as per the tariff order dated 24.10.2002, hostels are covered in several categories. Hostels of educational institutions affiliated to 6 RP NO. 591 OF 2020 Universities or under the control of Government Departments come under LT-VIB. Hostels run by institutions that are registered under Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 are exempted from payment of Income Tax come under LT-VIB. Hostels of mentally retarded students, deaf/dumb/blind, etc., recognised by Government come under LTVID. Private hostels come under LT-VII-A tariff. In order to contend that RAC Destitute Study Centre run by the petitioner falls under LTVIIB tariff, the petitioner has to establish that it is a hostel run by an institution that is registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 and exempted from payment of Income Tax. No such materials are placed before this Court. In such circumstances, it cannot be said that there is any error apparent on the face of record warranting interference, in exercise of the review jurisdiction of this Court under Order XLVII Rule 1 of the Code. 6. In **Thungabhadra Industries Ltd v. Government of Andhra Pradesh [AIR 1964 SC 1372]** the Apex Court held that, review is, by no means an appeal in disguise, whereby an erroneous decision is reheard and corrected, but lies only for correcting patent errors. 7 ## RP NO. 591 OF 2020 7. In **Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [(1980) 2 SCC 167]** the Apex Court held that, if the view adopted by the Court in the original judgment is a possible view, having regard to what the record states; it is difficult to hold that there is error apparent on the face of the record. 8. In **Parsion Devi v. Sumitri Devi [(1997) 8 SCC 715]** the Apex Court, in the context of the power of review under Order XLVII, Rule 1 of the Code of Civil Procedure, 1908 held that, 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 of the Code. In exercise of the jurisdiction under Order XLVII, Rule 1 of the Code, it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition has a limited purpose and cannot be allowed to be 'an appeal in disguise'. 9. Later, in **Lily Thomas v. Union of India [(2006) 3 SCC** **224]** the Apex Court reiterated that, the power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated like an appeal in disguise. The mere 8 RP NO. 591 OF 2020 possibility of two views on the subject is not a ground for review. 10. In **Anantha Reddy N. v. Anshu Kathuria [(2013) 15** **SCC 534]** the Apex Court held that, the review jurisdiction is extremely limited and unless there is mistake apparent on the face of the record, the order/judgment does not call for review. The mistake apparent on record means that the mistake is self - evident, needs no search and stares at its face. Surely, review jurisdiction is not an appeal in disguise. The review does not permit rehearing of the matter on merits. 11. In view of the law laid down by the Apex Court in the decisions referred to supra, the review jurisdiction under Order XLVII, Rule 1 of the Code is very limited and unless there is mistake or error apparent on the face of the record, the judgment does not call for review. Further, whilst exercising such power of review, the Court cannot be oblivious of the provisions contained in Order XLVII, Rule 1 of the Code and that the limits within which the Courts can exercise the power of review have been well settled in a catena of decisions. 12. Viewed in the light of the law laid down by the Apex Court in the decisions referred to supra, none of the grounds raised in this review petition, fall within the ambit and scope of Order XLVII, Rule 9 RP NO. 591 OF 2020 1 of the Code. Moreover, the petitioner has not offered sufficient cause for the condonation of the delay of 2074 days in filing this review petition. In such circumstances, this Court find no reason to condone the delay of 2074 days in filing the Review Petition. In the result, C.M.Application No.1 of 2020 is dismissed. Consequently, this Review Petition is also dismissed. Sd/- **ANIL K.NARENDRAN, JUDGE.** bkn/- 10 RP NO. 591 OF 2020 ## **`APPENDIX OF RP 591/2020`** |**`PETITIONER ANNEXURES`**|| |---|---| |**`ANNEXURE A1`**|**`TRUE COPY OF JUDGMENT DATED 20/02/2020 IN`**| ||**`CIVIL APPEAL NO.8350/2009 AND CONNECTED CASES`**| ||**`PASSED BY THE SUPREME COURT.`**| |**`ANNEXURE A2`**|**`TRUE COPY OF NOTICE NO. BB/ARY/ARREARS/2019-`**| ||**`20/203 DATED 18/03/2020 ISSUED BY THE 4TH`**| ||**`RESPONDENT.`**| |**`ANNEXURE A3`**|**`TRUE COPY OF NOTICE NO. BB/ARY/ARREARS/2019-`**| ||**`20/15 DATED 08/07/2020 ISSUED BY THE 4TH`**| ||**`RESPONDENT.`**| |**`ANNEXURE A4`**|**`TRUE COPY OF OBJECTION DATED 25/07/2020`**| ||**`SUBMITTED BY THE REVIEW PETITIONER BEFORE THE`**| ||**`4TH RESPONDENT.`**| |**`ANNEXURE A5`**|**`TRUE COPY OF ORDER DATED 05/08/2020 IN WPC`**| ||**`NO.15951/2020 PASSED BY THE HON'BLE HIGH`**| ||**`COURT.`**|