Madhya Pradesh High Court
M.P. State Electricity Board vs National Thermal Power Corporation ... on 22 September, 2003
Equivalent citations: 2004(1)MPHT432
ORDER S.P. Khare, J.
1. This is an appeal under Section 16 of the Electricity Regulatory Commission Act, 1998 (hereinafter to be referred to as 'the Act') against the order of the Central Electricity Regulatory Commission (for short 'the Commission') by which the review petition filed by the respondent No. 1 National Thermal Power Corporation (NTPC) has been allowed and the Original Petition No. 78 of 2001 has been "set down for hearing for reconsideration of its liability to pay "disincentive" for the period from 1-84996 to 31-3-1998".
2. There is "incentive" for more generation and "disincentive" for less generation of electricity by NTPC. It has to pay "disincentive" as a sort of compensation to those drawing electricity from it. Respondent No. 1 NTPC submitted a petition before the Commission stating therein that nonavailability of gas has caused loss of generation of electricity at Kawas and Gandhar Power Stations and therefore these could not achieve the normative lower limit of operative range and this should be taken as "deemed generation". For this purpose the NTPC was required to obtain "deemed generation certificate" from the Central Electricity Authority (CEA). Based on this certificate the Commission was to consider the question of approval of incentive/disincentive. The Commission in its order dated 24-10-2002 observed : "CEA has not so far issued such a certificate. In the absence of deemed generation certificate from CEA, we are unable to entertain the claim of the petitioner for computation towards incentive/disincentive the loss of generation on account of non-availability of gas". The Commission directed that petitioner NTPC is liable to pay "disincentive" to the beneficiaries of the power stations including the appellant.
3. The respondent No. 1 submitted a review petition under Section 12 of the Act before the Commission on 26-12-2002. It was registered as Review Petition No. 137 of 2002. In this review petition the NTPC pointed out that it had filed a copy of CEA's letter dated 12-12-2001 and that was for all practical purposes "deemed generation certificate". The letter of the CEA certified as under :--
"In case of Gandhar & Kawas GPS data is available with WREB since August, 96 only and WREB have computed and certified the following figures for loss of generation due to shortage/nonavailability of gas in respect of Gandhar & Kawas GPS for the years 1996-97 & 1997-98 by restricting the total generation including deemed generation to 62.79% PLF to enable NTPC to recover its full fixed charges :
1996-97 (August, 96 to March, 97)
1. Gandhar GPS 573.222 MU
2. Kawas GPS 1449.088 MU 1997-98 (April, 1997 to March, 98)
1. Gandhar GPS 952.616 MU
2. Kawas GPS Nil (as the PLF for the year was above 62.79%)."
4. The Commission did not consider the contents of the letter dated 12-12-2001 in the order dated 24-10-2002 for the purpose of calculation of quantum of disincentive for the period from 1-8-1996 to 31-3-1998. Respondent No. 1 NTPC further submitted CEA's letter dated 27-3-2003 which "certified figures of deemed generation" due to non-availability of gas. These figures are the same which are given in the letter dated 12-12-2001. The Commission after hearing both the sides held that the letter dated 12-12-2001 "escaped its attention" while passing the order dated 24-10-2002 and, therefore, it amounted to an "error apparent on the face of the record" within the meaning of the phrase used in Order 47 Rule 1, CPC and therefore, a case for review has been made out. The Commission further look the certificate dated 27-3-2003 of the CEA into consideration and stated that the petitioner can not be blamed and made to suffer on account of delay on the part of CEA. The Commission held : "In case the situation is not rectified, it shall result in miscarriage of justice".
5. In this appeal it is argued on behalf of the appellant that the review petition was beyond the scope and ambit of Order 47 Rule 1, CPC and therefore, it could not be entertained. It is pointed out that there was "no error apparent on the face of the record" and there was "no discovery of new and important evidence not within the knowledge of the NTPC" and therefore, the review petition could not be allowed. On the other hand it is submitted that the impugned order is very much within the scope of Order 47 Rule 1, CPC, and therefore, it can not be interfered with by this Court. An appeal has been filed against the original order dated 24-10-2002 of the Commission by the NTPC in the High Court of Delhi after the submission of the review petition and that is pending.
6. Section 12 of the Act specifically confers the power of review on the Commission. It can review its own orders as per provisions of the Code of Civil Procedure, contained in Order 47 Rule 1, CPC. The scope of this provision has been considered in various decisions. The legal position in this respect can be summarised. The review can lie in three situations (a) on discovery of new and important matter or evidence which after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was passed, or (b) on account of some mistake or error apparent on the face of the record, or (c) for any other sufficient reason. The provisions relating to power of review constitute an exception to the general rule to the effect that once an order or judgment is signed and pronounced it can not afterwards be altered. A review is not an appeal in disguise for rehearing but lies only for correction of patent errors. If the review application is presented before the appeal is preferred, it can be heard even if the appeal against that order is pending. To bring the case in category (a) mentioned above the new evidence discovered must be relevant and of such a character that had it been given it might have altered the judgment or order. The category (b) relates to "mistake or error apparent on the face of the record". It covers mistakes of fact and law both but the mistake must be such which in one glance can be detected. It should be blatant and stare on the face. There should be no need to fathom deep to discover the mistake. It should strike one on mere looking at record. The inadvertency should be evident. A palpably erroneous order passed under a misapprehension can always be corrected by any Court or Tribunal.
7. In M.M.B. Catholicos v. M.P. Athanasius, AIR 1954 SC 526, the Supreme Court held that the "misconception" of the Court must be regarded as sufficient reason analogous to an error on the face of the record. In that case the judgment impugned did not deal effectively and determine an important issue on which depended the title of the plaintiffs and the maintainability of the suit. It was held that this was certainly an error apparent on the face of the record. In A.T. Sharma v. A.P. Sharma, AIR 1979 SC 1047, it' has been observed that there are definitive limits to the exercise of the power of review. It can be exercised on any of the three grounds provided in Order 47 Rule 1, CPC. It is not to be exercised on the ground that the decision was erroneous on merits. In Grindlays Bank v. Central Govt. Industrial Tribunal, AIR 1981 SC 606, it has been held that the expression 'review' is used in two distinct senses, namely, (1) a procedural review which is either inherent or implied in a Court or Tribunal to set aside" a palpably erroneous order passed under a mis-apprehension by it", and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. Obviously when a review is sought due to procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inhers in every Court or Tribunal. In Meera Bhanja v. Nirmala Kumari Choudhury, AIR 1995 SC 455, it has been stated that error apparent on the face of the record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions.
8. As stated above the error apparent on the face of the record may be of "fact" also. Long back in Mt. Rukhmabai v. Ganpatrao, AIR 1932 Nagpur 177, it was slated that if an omission to notice one particular provision of law is a satisfactory ground for entertaining an application for review much more so is the omission to consider important facts which are on record and which the Judge himself immediately on passing his order realized that he had overlooked, and which in his opinion would have led him to pass an order materially different. Both are cases of an omission and not cases of misapplication or of taking a wrong view of the law on the fully considered facts of the case. In Jamna Kuer v. Lal Bahadur, AIR 1950 F.C. 131, the Federal Court stated the law tersely : "Where there is an error on the face of the record, whether the error occurred by reason of the Counsel's mistake or it crept in by reason of an oversight on the part of the Court, is not a circumstance which can affect the exercise of jurisdiction of the Court to review its decision". The observation in Dharma Das v. Mool Sajiwan, AIR 1951 V.P. 44, is equally pertinent where it is said : "The error justifying a review is most often an error on fact, and may in certain cases be one of law also. But in all cases it should be an error of inadvertency". In Radhikabai v. Sankirtan, 1962 MPLJ-Note 25, the Division Bench of this Court relying on the Federal Court decision referred above allowed the review as the Court had not considered the relevant Wazib-ul-arz while deciding the appeal. Then there is a decision of the Division Bench of Papsu High Court in Naurata v. Anokha, AIR 1954 Pepsu 85 (on which reliance has been placed by the Commission also in the impugned order) to the effect that when important documentary evidence already on record was not brought to notice of Court and referred to by either party when the appeal was heard all the same the documents being already there the error is apparent on the face of the record, which an error whether it occurs by reason of the Counsel's mistake or it creeps in by reason of an oversight on the part of the Court can always be a good ground for exercise of the jurisdiction of the Court to reverse its decision. Against the decision of Division Bench of Allahabad High Court in S. Banwari Lal v. Behari Lal, AIR 1964 Allahabad 516, also takes the view that the omission to consider the entire contents of an exhibit which was a material document is error apparent on the face of the record. In State v. Jaswantpuri, AIR 1989 MP 115, the omission to consider the impact of a notification was held to be a mistake apparent on the face of the record.
9. In the present case the Commission has stated in the impugned order that the letter dated 12-12-2001 which was on record "escaped its attention" while passing the order dated 24-10-2002. It is argued on behalf of the appellant that the Commission was fully aware of this letter. That is not enough. The Commission did not refer and did not examine the effect and impact of this letter in its order dated 24-10-2002. This was a vital and important material which could change the complexion of the case. A material fact was omitted. It was because either the attention of the Commission was not specifically invited to it or the Commission did not advert to it through oversight while passing the order. In both the situations it is an error apparent on the face of the record and the review lies on the principle laid down by the Federal Court in the case referred above. There was inadvertency. The letter contains the certificate without labelling it to be a certificate and this is what the Commission was searching.
10. The present case is also covered by category (a) mentioned in Para 6 of this order as a ground for review. The respondent No. 1 submitted the certificate dated 27-3-2003 which was issued subsequent to the order dated 24-10-2002 of the Commission. The CEA took time to issue this certificate. This was new and important evidence which could not be produced earlier by the respondent No. 1 before the Commission even after exercise of due diligence. It was all along trying to get this formal certificate from CEA but could not get it earlier. The Commission has expressed in the impugned order that the petitioner can not be blamed for it. The Commission rightly observed that in case the situation is not rectified it shall result in miscarriage of justice. This was a review on the ground of procedural defect and therefore as per decision of the Supreme Court in Grindlays Bank case, referred above, the error can be corrected ex debito justitiae. There was no remissness on the part of the petitioner. There is no legal infirmity in the impugned order.
11. The appeal is dismissed.