KOKERS 70 MM MOVIE HOUSE v. KERALA STATE ELECTRICITY BOARD
1984-04-11
PARIPOORNAN
body1984
DigiLaw.ai
Judgment :- 1. A batch of 224 Original Petitions were disposed of by a Division Bench of this Court, of which I was a member, by a common judgment dated 31-1-1984. We differed regarding the scope and interpretation of the provisions of the Electricity Supply Act, 1948 and reached different conclusions in our separate judgments dated 31-1-1984. It was held by me that the notification promulgated by the Kerala State Electricity Board dated 28-7-1980 and the notification of the Board dated 8-7-1982, called the 1st and second revisions, are illegal, unauthorised, arbitrary and unreasonable. They were quashed. The matter was posted by the learned Ag. Chief Justice for consideration, before a third judge, Mr. Justice K. K. Narendran, by order dated 1-2-1984. 2. In O. P. No. 1861 of 1983 apart from the prayer to quash the above notifications, there is a further prayer in Para.17 of the Original Petition to the following effect:- '(b) by an appropriate writ, order or direction to prohibit respondents 1 and 3 from assessing and/or collecting electric charges from the petitioners according to the rates provided in the notification evidenced by Ext. P5 and in case the said respondents or other officers of the 1st respondent demand and/or recover electric charges from the petitioners or from any one of the partners of the 1st petitioner at the rates prescribed by Ext. P5, to command the respondents 1 and 3 to refund to the petitioners the sums that may be recovered from them pursuant to Ext. P5 with interest thereon at 12 per cent per annum till date of payment." (Ext. P5 is the notification in the said case dealing with the second revision dated 8th July, 1982). In this miscellaneous petition, it is prayed that my judgment dated 31-1-1984 in the above O.P., may be corrected granting the petitioners the consequential reliefs prayed for in prayer (b) of the Original Petition extracted above. It is contended that since the notification dated 8-7-1982 (Ext. P5) impugned in the Original Petition, has been declared to be illegal and unauthorised and has been quashed, the petitioners are entitled, in the circumstances, to the consequential relief prayed for in the O.P., prayer (b), and it is only due to an accidental slip or omission, the consequential relief was not expressly stated and/or afforded in allowing the O.P. Correction in that behalf is prayed for.
Similar is the prayer in the other civil miscellaneous petitions also in O.P. 2135 of 1983, but in other cases, the refund for amounts assessed as per 28-7-1980 notification, are also included. The petitioners have referred to and relied on S.151 and 152 of the Code of Civil Procedure in this behalf. The petitioners were represented by Adv. Mr. V. Rama Shenoi. The respondents were represented by Mr. K. P. G. Menon, Advocate. I heard counsel for both parties. The petitioners' counsel argued that this court has "inherent power" to correct the above accidental slip or omission and grant the consequential relief prayed for, in prayer (b) extracted above. On the other hand Mr. K. P. G. Menon, counsel for the respondents submitted that the petition filed under S.151 and 152 of the Code of Civil Procedure is not sustainable. Counsel argued that the said provisions of law will not apply to correct the accidental slips or errors or omissions in the judgments rendered in exercise of the powers under Art.226 of the Constitution of India. On this basis, the prayer contained in the petition cannot be allowed. That is the only objection raised by counsel for the respondents. 3. Having heard counsel on both sides, I am of opinion that the petitioners are entitled to succeed. 4. Ss.151 and 152 of the Code of Civil Procedure are to the following effect: "151. Saying of inherent powers of Court: Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court." "152. Amendment of judgments, decrees or orders Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties." It is settled law that S.151 of the Code of Civil Procedure merely furnishes legislative recognition of the well established principle of law, that every court has inherent power to act "ex debito justitia" to do that real and substantial justice, for the administration of which alone it exists or to prevent abuse of the process of the court (See Sarkar on Civil Procedure, 6th edition, Vol.
I, page 322 and Mulla (1981 Edn ) CPC. Vol. I, page 784). As held in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal (AIR. 1962 SC. 527 at p. 534:) "The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it." S. 151 of the Code of Civil Procedure only recognises the inherent power that exists in all courts. It is true that S..15.1 of the Code of Civil Procedure may not apply to proceedings arising under Art.226 of the Constitution of India in view of the explanation to S.141 of the Code of Civil Procedure. Even so, since every court has got inherent power to do real and substantial justice, it cannot admit of any doubt that any clerical or inadvertent error or omission can be corrected even in judgments or orders rendered in proceedings, in exercise of the powers under Art.226 of the Constitution of India, if it is necessary for the ends of justice or prevention of abuse of the process of court. There is no prohibition in law against the said exercise of inherent power. as early as Narsingh Das v. Mongol Dubey (ILR. 5 All. 163 (FB). Mahmood J. observed: "Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law." This is only subject to the condition that the procedure that is not provided for expressly by the Code must be justified on the ground of the ends of justice or of prevention of abuse of the process of the Court. The above test or approach has been reiterated in a recent. Full Bench decision of the Allahabad High Court in Raj Narain v. Bhim Sen (AIR. 1966 All. 84 (FB). In Samarendra Nath Sinha v. Krishna Kumar Nag (AIR. 1967 SC.
The above test or approach has been reiterated in a recent. Full Bench decision of the Allahabad High Court in Raj Narain v. Bhim Sen (AIR. 1966 All. 84 (FB). In Samarendra Nath Sinha v. Krishna Kumar Nag (AIR. 1967 SC. 1440 at p. 1443) the Supreme Court held: "it is well settled that there is an inherent power in the court which passed the judgment to correct a clerical mistake or an error arising from an accidental slip or omission and to vary its judgment so as to give effect to its meaning and intention." So also in Chessum & sons v. Gordon (1901 (1) QB 694 at p. 699) referring to the power of the court to correct a judgment or order which has by some accidental slip or omission been drawn up, so as riot to carry out the intention of the court, A. L. Smith M. R. observed: "Where there has been such a slip there is always power, either under the inherent jurisdiction of the Court or under the provisions of Order XXVIII, R.11, to correct the error and set the matter right." (Order XXVIII R.11 extracted in the judgment itself at page 689 is similar to S.452 of the Civil Procedure Code). 5. In the light of the decisions of courts, it follows that this court has got the power, and really it is the duty of this court to do every thing and to make every order which can be said to be fairly and properly consequential upon the judgment delivered. The fact that S.151 of the Code of Civil Procedure will not apply is of no consequence. The argument of the respondents' counsel is repelled. 6. In my judgment dated 31st of January, 1984, both the tariff revisions represented by the notifications dated 28-7-1980 and 8-7-1982 were held to be unauthorised and illegal and were quashed.
The fact that S.151 of the Code of Civil Procedure will not apply is of no consequence. The argument of the respondents' counsel is repelled. 6. In my judgment dated 31st of January, 1984, both the tariff revisions represented by the notifications dated 28-7-1980 and 8-7-1982 were held to be unauthorised and illegal and were quashed. The natural and inevitable consequence flowing therefrom is that, if any amounts have been assessed or collected from the petitioners as per the notifications aforesaid such amounts are refundable, The petitioners have prayed for the refund of the amounts assessed and/or paid as per the later notification dated 8-7-1982 in O. P. No. 2135 of 1983 and O. P. 1861 of 1983 and in O. P. 1105 of 1981, O. P. 2956 of 1982, O. P. 2845 of 1983 & O. P. 760 of 1981 have prayed for the refund of the amount assessed and/or paid as per notification dated 28-7-1980 and 8-7-1982. I am of opinion that it was only due to a clerical or accidental mistake or omission, that this prayer to refund the unauthorised collection was neither noticed nor appropriate directions, given in rendering the judgment dated 31-1-1984. The matter deserves to be rectified in order to render justice and also to prevent unnecessary and dilatory legal proceedings in the matter. I, therefore, hold that the petitioners, if assessed as per the notifications aforesaid dated 28-7-1980 and 8-7-1982 and if further, any amounts are recovered from the petitioners or deposited by them in the name of the Board or of its officers or so paid or recovered by or from any one of its partners at the rate prescribed in the aforesaid notifications in excess of the pre-1980 notification rates, respondents 1 and 3 will refund to the petitioners herein the sums that were so recovered in pursuance to the notifications dated 28-7-1980 and 8-7-1982. I make it clear that the petitioners are entitled to the refund of only the excess amounts or rates, deposited or paid, as per the notifications dated 28-7-1980 and 8-7-1982, over and above, the rates due before the notification dated 28-7-1980. The petitioners are entitled to the above said consequential relief. It is so declared. The concluding portion of my judgment dated 31-1-1984 in the above O. Ps. will stand amended or corrected, incorporating the above relief also.
The petitioners are entitled to the above said consequential relief. It is so declared. The concluding portion of my judgment dated 31-1-1984 in the above O. Ps. will stand amended or corrected, incorporating the above relief also. It is made clear that the prayer, for the award of interest at 12 per cent is rejected.