Kerala High Court
Dr. P. Subramoniam vs K.S.E. Board And Ors. on 11 February, 1987
Equivalent citations: AIR1988KER169, AIR 1988 KERALA 169, (1987) 1 KER LT 355
ORDER M.P. Menon, J.
1. "Manohar Clinic" belonging to the petitioner was originally classified as a consumer of electrical energy, appropriate to class 1(c) of the Electricity Board's Tariff. Sometime after an X-ray unit was installed in the clinic, the Officers of the Board re-classified it as class IV(a). It appears that the petitioner filed some complaint before the Chief Electrical Inspector, and the matter was being got examined through the Electrical Inspector. Calicut. In the meanwhile, the petitioner filed O.S. 641/79 before the Munsiff's Court of Kozhikode fora declaration that the demand for payment of electrical charges, with retrospective effect, on the basis of the reclassification, was illegal and of no effect. In I.A. No. 1302 of 1980 the petitioner wanted the court to appoint the Electrical Inspector, Calicut as a Commissioner in the suit for reporting about correct classification and the tariff applicable to his electrical connection, as also about the "voltage, connected load, horse power etc." The application was opposed by the Officials of the Electricity Board, but the court apparently thought that the dispute involved something in respect of which a report from an expert would be useful. "Evidence should not be shut out", said the Court and the I.A.was accordingly allowed.
2. The Electrical Inspector submitted his report to the court on 24-7-82, staling that though the parties had failed to make available some documents which would have been of assistance in making the required report, despite notice, a few relevant papers had in the meanwhile been obtained in connection with the enquiry ordered by the Chief Electrical Inspector, and that he was in a position to report on their basis that the connection was correctly classified as IV(a). According to the Inspector, Class 1(c) was appropriate to small consumers with a connected load not exceeding 3H.P. corresponding to 3 KVA": but the X-ray unit in the petitioner's hospital had a transformer, an accessary to the unit, whose rated capacity itself was 20 KVA.
3. The report was thus against the petitioner. It is not clear whether any objection was filed to this report or whether the Commissioner was examined; but on 16-8-82 the petitioner filed another I.A. 2592/82 praying that the Inspector's report be set aside and that an experienced Advocate be appointed as a new Commissioner to report on the same matters. The court below dismissed the said I.A. by order dated 17-9-1982 and hence the present revision.
4. The I.A. was dismissed, so far I could see for four reasons : --
(i) in Hydrose v. Govindankutty 1981 Ker LT 360 : (AIR 1982 Ker 491 this Court had held that Order 26 Rule 10(3) was insufficient to clothe the court with power to set aside the report of a Commissioner appointed under Rule 9; the Court could only call for a further report from the same commissioner oral the most, appoint a fresh commissioner whose report would also form part of the evidence in the case, under Rule 10(2). There was therefore no question of granting the request for selling aside the Inspector's report. And there was no request at all to remit the report to him for further enquiry:
(ii) on the merits also there were no grounds to set aside the report because despite grant of sufficient opportunities by the Inspector, and even directions from the Court the plaintiff had failed to submit all the necessary records;
(iii) there was no reason to assume that an Advocate Commissioner would be able to submit a better report on the subject, than the Electrical Inspector, and
(iv) the points the petitioner wanted to prove could be proved by other evidence.
5. Counsel for the petitioner submits that the view taken in Hydrose (AIR 1982 Ker 49) (by me) has not met with the approval of a subsequent Division Bench decision of this Court, reported in Swami Premananda v. Swami Yogananda 1985 Ker LJ 225 : (AIR 1985 Ker 83), and that itself will be sufficient ground to set aside the order of the Munsiff herein. I cannot agree, because even if reason No. (i) were to fail, the order could well be supported by reasons Nos. (ii) to (iv). The learned Munsiff as already noticed was careful enough to observe :
"Even on merits there are no sufficient grounds to set aside the report........... If there is any defect in the report, the petitioner should have prayed to remit the same for rectification of those mistakes."
The question was about the connected load of the petitioner's installation and the classification to be made on that basis, in terms of the Tariff; and the Inspector had found that even the transformer forming an accessory to the X-ray unit alone, had a rated capacity of 20 KVA. It does not appear that the petitioner had any case that this part of the report was inaccurate and so long as this basic fact or factor was not in dispute, his inferences or conclusions could have been tested by producing the Tariff and examining him or by adducing other evidence/There was no material at all before the court to think that under the circumstances, an Advocate Commissioner could have done anything more.
6. The revision could and should be dismissed in the above view: and I see nothing in Swami Premananda 1985 Ker LJ 225 : (AIR 1985 Ker 83) to suggest that the report of a Commission once submitted before a court should be set aside and a new commission appointed for the mere asking. On the other hand almost all the decisions relied on by their Lordships of the Division Bench seem to have taken the opposite view. The question dealt with by the Bench was whether the mere circumstance that the trial court had chosen to get a second commission report was sufficient reason to set aside or ignore the first, and the answer given was that it was not. It was said :
"We have no hesitation to hold that the court below acted illegally and totally in excess of jurisdiction is mechanically setting aside the first Commissioner's report for the sole reason that a second Commissioner's report was ordered and obtained by the court....."
The passage seen extracted in paragraph (8) of the judgment from Chandan Mull v. Chiman Lal AIR 1940 PC 3 also shows that the intention was to emphasise the need for being extremely circumspect, in interfering with the report of a Commissioner.
7. Before parting with the case, however, I think I should point out that the Division Bench (in Swami Premananda) (AIR 1985 Ker 83) has not referred at all to my decision in Hydrose 1981 Ker LT 360 : (AIR 1982 Ker 19) and indicated how and why the reasoning therein could be overlooked ordiffered from. Judicial discipline requires me to follow the D.B. and that is what I have already done, by ignoring the reasoning of the court below based on Hydrose but holding that its conclusion could be justified on the rest of the reasoning. But that does not mean that I should desist from expressing my humble opinion that some relevant aspects of the question had not been brought to the notice of their Lordships of the Division Bench, before the decision was rendered.
8. Premananda 1985 Ker LJ 225 : (AIR 1985 Ker 83) was a case arising under Order 26 Rules 11 and 12, dealing with commissions to examine accounts, while Hydrose 1981 Ker LT 360 : (AIR 1982 Ker 49) had arisen under Order 26 Rules 9and 10, dealing with Commissions for local inspection , Rule 10(2) provides that the report of the Commissioner and the evidence taken by him shall be evidence in the suit (even without examining the Commissioner), though it is permissible to examine him in open court "touching on any matters referred to him or mentioned in his report........". Sub-rule (3) of Rule 10 further provides that where the court is dissatisfied with the proceedings of the Commissioner, it may direct such further enquiry to be made as it shall think fit. Rule 12(2) also provides for treating the proceedings and the report of the Commissioner as evidence in the suit and empowers the court, where it is dissatisfied with these, to direct further enquiry. Even ignoring the difference that Rule 10(3) refers to dissatisfaction with the proceedings of the Commissioner, and Rule 12(2), to dissatisfaction with the proceedings and report of the Commissioner, two things seem to be important from the stand point of statutory construction : --
(i) both the rules insist that the report of the commissioner "shall be evidence in the suit": and (ii) both speak of only "further enquiry".
Now, if the mandate of the statute is that the report of the Commissioner shall be treated as evidence in the suit, how can any court set it aside or wipe it out unless it is authorised to do that also by the statute? As already noticed. Rules 10 and 12 do not authorise the court to set aside a commission report which it is required to treat as evidence : the rules only permit the ordering of further enquiry" where the report already received is unsatisfactory. A power to order further enquiry into a matter is entirely different from a power to set aside or wipe out that which has already become part of the evidence in the suit as a result of the initial enquiry and the mandate of the statute.
9. It is not as if those who framed the Code were unware of the distinction between the approaches in Rules 10 and 12 of Order 26 on the one hand, and in Rule 14, on the other. While the Commissioners contemplated in the first two rules are those appointed during the_trial of a suit, the Commissioner in Rule 14 is one appointed after the passing of a preliminary decree in a partition suit though, technically, it may be said that the passing of a preliminary decree does not have the effect of terminating the suit. That is perhaps why unlike Rules 10 and 12, Rule 14 does not insist that the report of the Commissioner shall automatically form part of the evidence in the suit: and that also may be the reason why Rule 14 confers specific power on the court to confirm, vary or set aside a commission report and also to issue a new commission. At any rate, white Rule 14 specifically contemplates the setting a side of a commission report and the appointment of a new commissioner. Rules 10 and 12 only speak of ordering "further enquiry". The difference in language is not minor; and unless one is prepared to totally ignore the importance of language in construing statutory provisions, it is difficult to say that the power conferred under Rules 10 and 12 is similar to the one under Rule 14.
10. The word "further" means "additional" or "going beyond what exists"; and when Rules 10 and 12 refer to further enquiry, what is evidently intended is to collect and bring on record something in addition to what has already been brought in earlier. The intention could not have been to wipe the slate clean and start afresh.
11. In Swami Premananda (AIR 1985 Ker 83), the discussion on the scope of Rule 12 (considered as similar to Rule 10) starts with the observation that the matter had become fairly clear even " 110 years ago" by the decision in Syud Azim Ali Khan (1875) 23 Suth WR 93. That decision was rendered at a time when what was in force was the Code of 1859. Section 180 of Act 8/1859 dealt with "Commission for local investigation" and though it provided for the treating of the report of the Commission as evidence in the suit, and also for examination of the Commission under certain circumstances, it had not made any provision as to what was to be done when the report was found to be unsatisfactory. In other words, there was no provision corresponding to Rule 10(3) of Order 26. Appointment of commissions "to investigate and adjust accounts" (corresponding to Rules 11 and 12 of Order 26 of the present Code) was the subject-matter of Section 181; and the last part of the Section was in the following terms : --
"The proceedings of the commission shall be received in evidence in the case, unless the court may have reason to be dissatisfied with them, in which case the court shall make such further enquiry as may be requisite and shall pass such ultimate judgment or order as may appear to it to be right and proper in the circumstances of the case."
And there was no provision at all in the 1859 Code for issue of Commissions in partition matters (like the one in Order 26 Rule 14). The decision in Syud Azim Ali Khan was one dealing with the report of a Commissioner appointed under Section 180, for local investigation; it was not concerned even with the "further enquiry" in Section 181. The very general remark that a second enquiry could not be ordered without absolutely quashing and annulling the proceedings of the first, was therefore not an interpretation of the provisions of Section 181 it was at the most an attempt to caution against misuse of power under Section 180, as a measure of practice. Can such remarks about practice be authority for the construction of a provision introduced into the statute years later? That was perhaps why P.B. Mukherji J. (as he then was), who could not easily be assumed to have been unaware of the decision in Syud Azim Ali Khan, had struck an entirely different note (as regards annulling, quashing, setting aside or wiping out) in B.C. Ghose v. T. P. Ghose (1966) 70 Cal WN 266. As a measure of construing Rule 10(3) his Lordship was not in favour of the view that a second commissioner could not be appointed at all, without setting aside the report of the first Commissioner.
12. It may perhaps be useful to notice that Section 181 of the 1959 Code had conferred some discretion on the Court not to treat the Commissioner's proceedings as evidence, if it was dissatisfied about the proceedings; the language of Rules 10(3) and 12(2)of Order 26 of the present Code is different.
13. Another decision relied on in Swami Premananda (AIR 1985 Ker 83) is the one reported in Lakshmi v. Ouseph Mariyam (1926) 42 Trav Co. LR 429. That had only followed the view taken in Syud Azim Ali Khan, and a few decisions of the Madras High Court which too had deprecated the practice of issuing successive commissions on the same matter and for the same purpose, at ruinous costs for the parties. However, even the said decisions had noticed (vide for example Ambi v. Kunhi Kavama AIR 1929 Mad 661 the difference in phraseology between Rules 10(3) and 14(3) and held that what could he done under the former was only to direct further enquiries by the same commission, and not the issuance of a new commission. It was however observed that in extreme cases where the report of a Commissioner was found to be wholly unsatisfactory, the court could "discard the whole record and start afresh". As I had had occasion to point out in Hydrose 1981 Ker LT 360 : (AIR 1982 Ker 49) this latter remark did tittle justice to the distinction between Rules 10(3) and 14(3) which their Lordships themselves had earlier highlighted. And if you go through the subsequent decisions of the Madras High Court on the subject, you will find that it was this "discarding" and "starting afresh" which, in course of time was converted into the inviolable rule --without any support from the statute -- that a second commission could not issue, unless the first is "wiped out".
14. The last part of Section 181 (of the 1859 Code) had perhaps indicated what a Court was ultimately expected to do when the report submitted by a Commission was found to be unsatisfactory : it could direct further enquiries to be held, and then proceed to pass "such ultimate judgment or order" as was right and proper "in the circumstances of the case." This was apparently why the Patna and other High Courts have been taking the view that a commission report is but one piece of evidence in a case, that there could, in appropriate cases, be other pieces also, and that all such pieces of evidence are to be evaluated at the time when the Court is to pass "ultimate judgment" in the suit.
15. A question was raised at the hearing as 10 what could be done when the local investigation report submitted by a Commissioner is found to be absolutely useless, if it were to be held that a new commission would be possible only in partition matters, under Rule 14(3). Decisions of the Patna; Calcutta, Punjab arid Orissa High Courts indicate that where the result of an on-the spot enquiry is essential, a second commission could be appointed, in those rare cases where such a step is found necessary, without setting aside the first report. Velu Pillai J. of this Court was also of this view. In Hydrose (AIR 1982 Ker 491, I too had observed, for what it was worth, that even though a power to issue a second commission could not be found in Rule 10(3) such power "could be traced to the well-known principle that the power to issue a commission is not exhausted with the first exercise thereof". Rule 9 of Order 26 empowers a court to issue a commission for local investigation when it deems it to be requisite for elucidating a matter in dispute; and this conferment of power, read in the light of Section 14 of the General Clauses Act, enables it to issue a second commission, if the elucidation obtained as a result of the first report turns out to be unsatisfactory. The question then is not whether a second commission could be appointed at all: it is whetherthe report of the first could or should be set aside before another could be thought of, and whether such a principle emerges from a construction of Rule 10(3).
16. In Shib Charan Sahu v. Sarada Prasad AIR 1937 Pat 670 Courtney Terrel C.J. had adverted 10 the situation when if the trial court were granted the power to set aside the report of the first commission, the appellate court would be prevented from looking into it despite the provisions of Section 105( 11 of the Code; and the matter must evidently become more complicated, when the setting aside is upheld by the High Court in a revision filed before it under Section 115. In fact, a more or less similar situation had arisen in Swami Premananda (AIR 1985 Ker 83) and their Lordships of the Division Bench had to adopt, if I may say so with respect, the peculiar approach of suggesting that even the decision of the High Court (in C.R.P. No. 41 of 1975 involved in that case) was wholly without jurisdiction.
17. No doubt, the Madras. Andhra Pradesh and Karnataka High Courts have been taking the view that without setting aside the first commission report, no second commission can issue. The source of all these authorities appear to be a very early decision of the Madras High Court making sortie observation about the "practice" of the Munsiffs of Malabar, issuing one commission after another, or even simultaneous commissions without applying their mind to the needs of the situations or the nature of their power under the relevant rule. No one can approve of such a procedure. aS I had pointed out in Hydrose (AIR 1982 Ker 49) to recognise a power in the court to issue a second commission, without setting aside the report of the first, is "not to hand over to the alcoholic the key of the distiltery", but only "to distinguish a matter of practice from a matter of law". As Lord Reid has said, one should have regard to common sense, legal principle and public policy "in that order", in regions like the present; and "the first two criteria are unlikely to leave much scope for the application of the third". In other words one should not place matters of policy or practice at the forefront, and relegate to the background the reach and range of the language of a statute, while construing it. It is only necessary to add that even after noticing Swami Premananda (AIR 1985 Ker 83) a later decision of this Court in Sivaraman v. Narayanan 1986 Ker LT 578 : (AIR 1987 Ker 156) had observed that it would not be appropriate to hold that under no circumstances could a court issue a second commission, without setting aside the report of the first.
Revision dismissed. No costs.