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N.D. Ojha, J.—Messrs Banaras Electric Light & Company Limited (hereinafter referred to as the Petitioner) filed Civil Misc. Writ Petition No. 1788 of 1974 against ([) The Collector Varanasi Distt. Varanasi (2) The Executive Engineer, Electricity Maintenance Division P. O. D. L. W. Manduadili, Varanasi, (3) U.P. State Electricity Board, 14 Ashok Marg, Lucknow and (4) State of U.P. (hereinafter referred to as the Respondents) for various reliefs. The said writ petition was partly allowed by us on February 2, 1981. The present application for review has been filed on behalf of Respondents 2 and 3 to the writ petition.
The facts giving rise to the writ petition are contained in our judgment aforesaid dated February 2, 1981. For purposes of the review application it may be stated in brief that the Petitioner had a licence under the Indian Electricity Act, 1910 for generating and supplying electricity within the municipal limits of Varanasi. It also started with effect from November 1962 purchasing a considerable quantity of electricity in bulk at voltage 11 KV from the U.P. State Electricity Board, Respondent No. 3. In regard to sale of electricity by it the U.P. State Electricity Board issued a notification dated 28th December 1971, revising the grid tariff to be applicable with effect from January 1, 1972. In the bills issued by the U.P. State Electricity Board to the Petitioner between January and August, 1972 rebate of 5 per cent purporting to be under clause 6 (b) of the aforesaid notification was granted to the Petitioner. In subsequent bills dated October 3,1972 and November 1, 1972, however, the said rebate was not granted. Not only that two bills both dated (?) 30, 1972 were served on the Petitioner making demand for refund of the amounts mentioned therein on the ground that rebate of five per cent had earlier been wrongly allowed in the bills for the period between January and August, 1972. Even though the bills for the period September, 1972 and March, 1973 did not allow any rebate the Petitioner made payments after deducting rebate calculated at the rate of five per cent. Subsequently a notice of demand dt. January 18, 1974 was served by U.P. State Electricity Board on the Petitioner requiring it to pay a sum of Rs. 9,38,910. X5 within 30 days failing which it was to be recovered as arrears of land revenue. An objection was sent by the Petitioner to the aforesaid notice on March 22, 1974 but no heed having been paid to the said objection Civil Misc. Writ Petition No. 1788 of 1974, referred to above was filed for various accounts Several grounds were urged in support of the writ petition by counsel for the Petitioner but only one ground which is relevant for purposes of this writ petition is being mentioned. The Petitioner had urged that in view of rebate having been allowed to them they adjusted their rates accordingly and did not pass it over to the consumers and as such the U.P. State Electricity Board was estopped from recovering the amount from them. None of the grounds urged found favour with this Court except one, namely, for the period between January 1, 1972 and December 9, 1972, the U.P. Electricity Board was estopped from recovering any amount from the Petitioner deducted by it as rebate. The present review application has been filed by Respondents 2 and 3 on the ground of discovery of fresh material. In the review petition it has been alleged that this case of the Petitioner was wholly wrong that they had not passed over the enhanced amount to the consumers. They had actually moved the U.P. Government and the U.P. State Electricity Board for raising the rate chargeable from the consumers, keeping in view the increase in tarrif i. e. Rs. 16,50,000/- which did not take the rebate into consideration at all and the Board after considering the matter sanctioned the increase in rate in part. So the plea of estoppel had no force at all. They seek to file these papers in connection with the sanction of increase in the rate to support their plea.
This application has been opposed on behalf of the Petitioner mainly on two grounds--(1) that the documents which are sought to be relied on as additional evidence were in the knowledge of Respondents 2 and 3 even at the time when they contested the writ petition and since no cause has been shown as to why they were not filed at the appropriate stage alongwith the counter affidavit in the writ petition the review application is not maintainable, and (2) even if the documents in question are taken into consideration the plea of estoppel against the U.P. State Electricity Board was still maintainable as in their application for sanction of higher rate they had given figures of the enhanced cost after considering the rabate allowed. They gave the breakup of the amount of Rs. 16,50,000/- to illustrate the same.
In their rejoinder Respondents 2 and 3 disputed this breakup and alleged that this was wholly wrong and the figures were being given simply for meeting the points raised and they calculated the rebate only on a part of the charges and not on the entire amount because the rebate is due if at all on the entire amount and not on a part. Had that been so the figure of the enhanced cost would not have been Rs. 16,50,000/- but very much less.
Having heard counsel for the parties at some length we are of opinion there is substance in the first objection raised by counsel for the Petitioner and the review application is liable to be dismissed on that ground alone and in that view of the matter it is not necessary to go into the second objection raised by counsel for the Petitioner.
The sheet anchor of the review application is copy of a notice dated January 24,1972, sent by the Petitioner to the State Government and the U.P. State Electricity Board which has been filed as Annexure 1 to the review application. Annexures 2 and 3 to the review application are copies of citations in a news paper consequent upon the notice dated January 24, 1971. Annexures 4 to 6 to the review application are the copies of certain letters.
Before dealing with the first objection raised by counsel for the Petitioner about the maintainality of the review application we find it necessary to consider at this place certain decisions dealing with the extent and scope of the power of review with particular reference to a judgment delivered in a writ petition. In Shivdeo Singh and Others Vs. State of Punjab and Others, it was held:
It is sufficient to say that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it.
In Sow Chandra Kante and Another Vs. Sheikh Habib, it was held:
A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.
In Babboo alias Kalyandas and Others Vs. State of Madhya Pradesh, after referring to the decision in Shivdeo Singh''s case (Supra) it was held:
It is true as observed by this Court in Shivdeo Singh and Others Vs. State of Punjab and Others, there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter of evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made, it may be exercised where some mistake or error apparent on the face of the record is found: it may also be exercised on any analogous ground.
While dealing with the power to review its own judgment the Supreme Court in Northern India Caterers (India) Ltd. Vs. Lt. Governor of Delhi, reiterated the view taken by it in Sow Chandra Kanta''s case (Supra) that the finality of the judgment delivered by the court will not be reconsidered except "where a glaring omission or a patent mistake or like grave error has crept in earlier by judicial fallability.
The question as regards court''s power of review in proceedings under Article 226 of the Constitution came up for consideration before a Full Bench of the Gujrat High Court in Gujarat University, Ahmedabad and etc. Vs. Sonal P. Shah, . Giving his leading judgment Bhatt, J. in paragraph 8 of the report after taking notice of the amendment made in Section 141 of the CPC to the effect that the word ''proceeding'' used in that section did not include a writ petition under Article 226 of the Constitution and A. T. Sharma''s case (Supra) held:
So I find that the following legal propositions stand firmly established:
(1) The provisions of the CPC in Order 47 are not applicable to the High Court power of review in proceedings under Article 226 of the Constitution.
(2) The said powers are to be exercised by the High Court only to prevent miscarriage of justice or to correct grave and palpable errors. The epithet "palpable" means that which can be felt by a simple tough of the order and not which could be dug out after a long drawn out process of argumentation and ratiocination).
(3) The inherent powers, though ex facie plenary are not to be treated as unlimited or unabridged but they are to be invoked on the grounds analogous to the grounds mentioned in Order 47 Rule 1 namely;
(i) discovery of new and important matter on evidence which the party seeking the review could not produce, at the time when the earlier order sought to be reviewed was made, despite exercise of due diligence;
(ii) existence of some mistake or error apparent on the face of the record; and
(iii) existence of any analogous ground (These are the very three grounds referred to in Order 47 Rule 1 CPC and by declaration of law at the hands of the Supreme Court in the above case they are the hedges or limitations of the High Court''s power).
Coming to the facts of the instant case it would be seen that here the review is sought not on the ground that a glaring omission or a patent mistake or like grave error has crept in earlier by judicial infallibility nor on the ground that this Court committed any grave and palpable error in deciding the writ petition. It has been filed only on the ground of discovery of new and important evidence. As has been emphasised by the Supreme Court in A. T. Sharma''s case (Supra) which has been followed by the Full Bench of the Gujrat High Court in the case of Gujrat University (Supra) before a review application can be entertained on this ground it has to be established by the applicant in the review application that the additional evidence which is sought to be relied on was "after the exercise of due diligence" not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made. In the instant case there is no averment to this effect in the affidavit filed in support of the review application or even in the rejoinder affidavit. In the affidavit filed alongwith the review application what has been stated is that after the judgment was delivered in the writ petition the Superintending Engineer, Electricity Supply Undertaking State Electricity Board, Varanasi had the occasion to appear before the Special Officer (Electricity) to the State Government and in that connection while wading through the old files in the office of the Electrical Inspector to the State Govt. he found the documents referred to in the review application. As pointed out above the sheet anchor of the review application is a notice sent by the Petitioner to the State Government and the U.P. State Electricity Board itself on January 24, 1972. This notice, therefore, was apparently with the U.P. State Electricity Board, which is an applicant in the review application even at the time when the counter affidavit in the writ petition was filed and the writ petition was heard and decided. The only averment in this behalf in the rejoinder affidavit is that the officers dealing with the case had no knowledge and had no occasion to know about this notice given by the Petitioner Company and, therefore, could not bring it to the notice of this Court at the time when the writ petition was heard. It would thus be seen that neither in the affidavit filed alongwith the review application nor in the rejoinder affidavit it has been stated that even after exercise of due diligence these documents were not within the knowledge of Respondents 2 and 3 or could not be produced by them at the time when the writ petition was heard and decided. The requirement of the "exercise of the due deligence", at the appropriate time constitutes the very basis for maintaining a review application tiled on the ground of discovery of new and important matter or evidence. In Pyare Lal v. Chhotey Lal AIR 1942 All 82 while dealing with the power of review under Order 47 Rule 1 CPC on the basis of discovery of new or important evidence it was held that Order 47 Rule 1 CPC requires a high standard of diligence and that the person who wants in review should prove strictly diligence he claims to have exercised. The same view was taken in an earlier decision in Syed Alley Eba Rizvi Vs. State and Another, .
Counsel for Respondents 2 and 3 on whose behalf the present review application has been filed has however placed emphasis on the decision of the Supreme Court in O.N. Mohindroo Vs. The District Judge, Delhi and Another, and has urged on its basis that a review application is maintainable if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice. It is urged that when the very basis on which the plea of estoppel was allowed by this Court in part failed, it would be manifestly unjust to allow the benefit a second time. Having given our anxious consideration we are of opinion that the said decision is of no assistance to Respondents 2 and 3. That was a case where the scope of the power of review by the Supreme Court with particular reference to Article 137 of the Constitution was considered. An advocate had been debarred from practice. There were certain special circumstances pointed out by the Supreme Court on the basis of which it took the view it was fit case for allowing the review application. These circumstances are pointed out in paragraphs 21, 36 and 37 of the report. No such circumstance is however to be found in the instant case. In (1940) 8 ITR 635 (Privy Council) relying on the observations of Lord Halsbury in Quinn v. Leatham 1901 AC 495 it was held:
Every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed or qualified by the particular facts of the case in which such expressions are to be found.
In S.V. Kondaskar, Official Liquidator and Liquidator of the Colaba Land and Mills Co. Ltd. Vs. V.M. Deshpande, Income Tax Officer, Companies Circle I(8), Bombay and Another, it was held that in order to understand and appreciate the binding force of a decision in is always necessary was given and what was the point which was to be decided. It is in view of what has been pointed out above that we are of opinion that the decision in O. N. Mohindroo''s case (Supra) is of no assistance to Respondents 2 and 3,
In view of the foregoing discussion we are of opinion that no case has been made out for entertaining the present review application. In this view of the matter we find it unnecessary to go into the second objection raised by counsel for the Petitioner that even on merits no case for review has been made out.
In the result this review application fails and is dismissed but in the circumstances of the case there shall be no order as to costs.