2024 (10) TMI 597 - HC - Income Tax

Review petition - removal of interest liability over the withheld amount and cost imposed upon the Managing Director of the respondents - whether the order which is being sought to be reviewed can be reviewed on the grounds upon which the present review has been filed for which settled position of law for the purpose of exercising the power of review? - HELD THAT - Since the law is settled that to review the order passed by the Court is very limited and order of review can only be passed in the circumstances of availability of certain conditions as has been held by the Hon'ble Apex Court in the recent judgment rendered in Sanjay Kumar Agarwal Vrs. State Tax Officer (1) Anr. 2023 (11) TMI 54 - SUPREME COURT , wherein while interpreting the provision of Order 47 Rule 1 of the C.P.C. which is pari materia to Rule 203 of the Jharkhand High Court Rules, wherein, the proposition has been laid down to entertain the review. It is also settled that order is not to be reviewed in the garb of the appeal. Further settled position of law is that if the fact has been taken into consideration by the Court may be wrong consideration by the Court but the same cannot be a ground for review rather the same will be a ground to prefer an appeal before the higher forum, if available. The ground of review are two folds that there is vagueness in paragraph-18 wherein the liability of interest has been imposed upon the total amount but from which date the interest is to be accrued on the total amount is not there. The second ground is that the Managing Director has been saddled with cost of Rs.5 lakhs which has been passed by the Court by putting liability in not acting with due diligence and the third ground has been taken that the Managing Director was not a party to the proceeding and as such, saddling of cost of Rs.5 lakhs as under paragraph-22 of the order sought to be reviews is contrary to the principles of natural justice. The first ground which has been taken that the quantum of interest has not been decided but this Court on consideration of paragraph-18 has found that this Court has passed the order holding the writ petitioner entitled for interest over the withheld as per clause 10.7.4 of the Regulation, 2015. As evident from the said clause that if the consumer has paid any excess amount, it shall be refunded to the consumer within 15 days or, if consumer opts, be adjusted within two subsequent bills. The Distribution Licensee shall pay to the consumer interest charges at the rate equivalent to the delay payment surcharge as per tariff on the excess amount outstanding on account of such wrong billing from the date of payment till the date of refund or adjustment in subsequent bills. Co-ordinate Bench of this Court while passing the order, has taken into consideration the said clause wherein in case of excess payment, the amount is to be refunded and on that count, the interest will have to be paid to the consumer which will be at the rate equivalent to the delay payment surcharge as per tariff on the excess amount outstanding on account of such wrong billing from the date of payment till the date of refund or adjustment in subsequent bills which means there is no ambiguity in the direction so passed of casting liability to pay interest as under paragraph-18 since the same is based upon the consideration of the provision made in clause 10.7.4 of the Regulation, 2015, as such, the same cannot be a ground for review rather the same will be a ground to challenge the finding so recorded by the original court before the higher forum. If the contention of the learned standing counsel for the review petitioner will be accepted, then the same will be nothing but exercising the power of appeal in the garb of review. The second and third ground is casting liability by saddling cost of Rs.5 lakh upon the Managing Director who has not been impleaded as party to the proceeding. This Court has considered in the light of the provision of clause 10.7.4 of the Regulation, 2015 and due to non-adherence of the said clause by the competent authority in not refunding the amount and if in that pretext, personal liability has been imposed upon the Managing Director by saddling cost of Rs.5 lakh, the same cannot be said that there is no consideration of the issue in the light of the statutory provision applicable rather there is consideration which might be said to be wrong consideration, for which the remedy available is not of review but of appeal.It has also been submitted that the Managing Director was not a party. This Court is of the view that if the Managing Director was not a party and when the Managing Director has been saddled with cost of Rs. 5 lakh then, it is his individual liability and nobody can be allowed to question the individual liability rather the same can only be questioned by the Managing Director by directly approaching to the Court. This Court, as per the aforesaid reason and relying upon the judgment passed by the Hon'ble Apex Court in Sanjay Kumar Agarwal Vrs. State Tax Officer (1) Anr. 2023 (11) TMI 54 - SUPREME COURT as also taking into consideration the ground which is to be applied in review of the order, is of the view that the instant civil review is fit to be dismissed.

Summary

Issues Involved:

1. Condonation of delay in filing the civil review.
2. Review of the judgment regarding interest liability on withheld amount.
3. Imposition of cost on the Managing Director of JBVNL.

Issue-wise Detailed Analysis:

1. Condonation of Delay:

The interlocutory application sought condonation of a 21-day delay in filing the civil review. The petitioner's counsel argued for condonation, and the respondent's counsel raised no objection. The court, considering the reasons provided, allowed the application and condoned the delay.

2. Review of Judgment Regarding Interest Liability:

The civil review petition was filed under Article 226 of the Constitution of India, seeking modification of a prior order. The original judgment had directed JBVNL to pay interest on an amount of Rs. 2,90,32,000/- withheld from the petitioner, as per clause 10.7.4 of the Jharkhand State Electricity Regulatory Commission, Ranchi (Electricity Supply Code) Regulations, 2015. The review petition challenged this direction, arguing that the interest liability was vague regarding the accrual date. However, the court found no ambiguity, as the regulation clearly stipulated that interest should be paid from the date of excess payment until refund or adjustment. The court emphasized that the grounds for review are limited and do not include re-evaluation of decisions unless there is an apparent error or new evidence. The court held that the original judgment's interpretation of the regulation was not erroneous and could not be grounds for review, suggesting that any challenge should be pursued through an appeal rather than a review.

3. Imposition of Cost on the Managing Director:

The review petition also contested the imposition of a Rs. 5 lakh cost on the Managing Director of JBVNL, arguing it was unjust as he was not a party to the proceedings. The original judgment had imposed this cost due to the Managing Director's failure to act with due diligence regarding the refund of the withheld amount. The court noted that the Managing Director's liability was personal and could only be contested by him directly. The court reiterated that the scope of review is limited to errors apparent on the face of the record and does not extend to re-litigating issues or questioning decisions that might be perceived as incorrect. The court concluded that the imposition of costs was based on statutory considerations and did not warrant a review.

Ultimately, the court dismissed the review petition, affirming the original judgment and emphasizing the limited scope of review proceedings, which are not intended to serve as an appeal in disguise.