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2017 DIGILAW 1471 (GAU)

Assam Power Distribution Company Ltd. v. Ruhul Amin Son of Gajibar Rahman

2017-11-27

A.K.GOSWAMI

body2017
JUDGMENT AND ORDER : Heard Mr. N. J. Dutta, learned counsel appearing for the review petitioners. Also heard Mr. M. Hussain, learned counsel appearing for the respondents. 2. This application for review is filed against the judgment and order dated 31.08.2016, passed in WP(C) 915/2016, whereby the Assam Power Distribution Co. Ltd. (APDCL) and its functionaries (review petitioners) were directed to deposit an amount of Rs. 1,50,000.00/- (Rupees one lakh fifty thousand) only on account of electrocution of two buffaloes, within a period of one month from the date of the order before the Registry of the Court. 3. It will be appropriate to extract below the entire order dated 31.08.2016 for a fair appreciation of the contentions advanced by the learned counsel for the parties: “Heard Mr. M. Hussain, learned counsel for the petitioner. Also heard N. J. Dutta, learned standing counsel APDCL, appearing for the respondent nos. 2, 3, 4 and 5 and Mr. H. K. Hazarika, learned State Counsel appearing on behalf of Respondent Nso. 1,6 and 7. In an electrical accident on 27.5.2015 two buffalos belonging to the petitioner were electrocuted. The petitioner also claims to have suffered shock. Mr. Dutta, learned standing counsel APDCL, as usual, fairly submits that the report of the Deputy Chief Electrical Inspector goes to show that there is some elements of negligence which led to the electrical events. By drawing attention of this Court to an Office Memorandum dated 18.12.2013 of the Assam Power Distribution Company Limited, Mr. Dutta submits that the compensation in case of death of animal will have to be determined on the basis of the valuation of the livestock as fixed by the Animal Husbandry and Veterinary Department, Govt. of Assam from time to time. He has also drawn attention of the Court to the post-mortem report of the buffalos conducted by the Veterinary Officer, Rangapani State Veterinary Office wherein value of each of the buffalo was fixed at Rs.75,000/- approximately. Mr. Dutta has further submitted that the petitioner himself will not, however, be entitled to any compensation as there is no material on record to justify grant of any compensation. Mr. Hussian, learned counsel for the petitioner submits that the petitioner also suffered some electrical shock as is evident from Annexure-2 and therefore, he is also entitled to compensation. Mr. Dutta has further submitted that the petitioner himself will not, however, be entitled to any compensation as there is no material on record to justify grant of any compensation. Mr. Hussian, learned counsel for the petitioner submits that the petitioner also suffered some electrical shock as is evident from Annexure-2 and therefore, he is also entitled to compensation. He submits that for the buffalos in question, a sum of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand) is liable to be awarded in view of the valuation of the dead animals as demonstrated in the post-mortem examination report. In view of the accepted position that electrocution of the buffalos was occasioned due to negligence of the APDCL authorities, the only question detaining this Court is with regard to grant of compensation to the petitioner as there appears to be no dispute with regard to compensation amount for the buffalos. The petitioner has brought on record an Advice Slip from Chandmama State Dispensary, Barpeta dated 28.5.2015 to demonstrate that the petitioner suffered electric shock. The writ petition was filed on 9.2.2016 and apart from the aforesaid Advice Slip and a prescription, which is dated 27.5.2015, no other documents have been placed on record. The Advice Slip merely indicates that the petitioner suffered electrical shock. The nature of the shock is not indicated. In absence of any material placed on record, no case is made out by the petitioner for award of compensation to him. However, the Respondents-APDCL are directed to deposit an amount of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand) on account of electrocution of buffalos within a period of one month from today before the Registry of this Court. The petitioner will be allowed to withdraw the said amount from the Registry on being identified by his counsel. With the aforesaid directions, this writ petition stands disposed of.” 4. Mr. Dutta submits that although the Veterinary Officer, Rangapani State Veterinary Office had indicated the value of each of the buffaloes at Rs. 75,000.00/-, as there is an Office Memorandum dated 18.12.2013 of the APDCL indicating that in case of death of an animal, the compensation will have to be determined on the basis of the valuation of the livestock as fixed by the Animal Husbandry and Veterinary Department, he was under a misconception of fact that the amount of Rs. 75,000.00/-, as there is an Office Memorandum dated 18.12.2013 of the APDCL indicating that in case of death of an animal, the compensation will have to be determined on the basis of the valuation of the livestock as fixed by the Animal Husbandry and Veterinary Department, he was under a misconception of fact that the amount of Rs. 75,000.00/-, fixed by the Veterinary Officer, is a valuation fixed by the Government and the Court had also proceeded on the basis thereof in awarding the compensation on account of electrocution of the two buffaloes, which were male buffaloes. He has also submitted the copy of the notification fixing the value of the livestock was not in possession of the respondents. Subsequently, on 27.09.2016 they received a communication from the Senior Research Officer (Stats), Directorate of Animal Husbandry and Veterinary Department, wherein the average price of animals for the year 2014-2015 was enclosed. Drawing attention of the Court to the said valuation chart, Mr. Dutta submits that the average price of a male buffalo was Rs. 28,000.00/- for the year 2014-2015. He further submits that the petitioners are certainly to be compensated at the rate fixed and as the amount granted by this Court was only basis of the valuation recorded by the Veterinary Officer in the post-mortem report, there is sufficient cause for reviewing the impugned judgment and order. He has placed reliance in the judgment of the Supreme Court in the case of Board Of Control For Cricket in India vs Netaji Cricket Club & Ors reported in AIR 2005 SC 392 with particular emphasis on paragraphs 89 and 90 thereof. 5. Mr. Hussain has submitted that there is no error apparent on the face of the record and, that apart, nothing prevented the review petitioners to place on record the valuation chart fixing the value of animals and livestock for the relevant year. During the course of the hearing today, Mr. Hussain also placed before the Court a document issued by the Senior Research Officer (Stats), Animal Husbandry and Veterinary Department, indicating the range of prices as per market price report of livestock for the years 2010-2011 to 2016-2017. He has submitted on the basis thereof that the price fixed for a breeding bull was in the range of Rs. 18,000/- to 32,000.00/- for the year 2014-2015. He has submitted on the basis thereof that the price fixed for a breeding bull was in the range of Rs. 18,000/- to 32,000.00/- for the year 2014-2015. Learned counsel submits that there is lack of due diligence on the part of the review petitioners in not placing before the Court the relevant notification on the subject and, therefore, no case is made out for review of the order dated 31.08.2016, as prayed for. Mr. Hussain has relied on the judgment of the Supreme Court in the cases of Haridas Das vs Smt. Usha Rani Banik & Ors, reported in AIR 2006 SC 1634 with particular emphasis on paragraphs 14 to 18, Chander Kanta Bansal vs Rajinder Singh Anand, reported in (2008) 5 SCC 117 with special emphasis on paragraph 16 thereof. 6. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 7. Order XLVII Rule 1 CPC provides that any person considering himself aggrieved (a) by a decree or order from which an appeal is allowed, but from no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the 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 decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. 8. Before proceeding further, it will be appropriate to take note of the judgment relied upon by the learned counsel for the parties. 9. In Haridas Das (supra), the Supreme Court had noted the judgment in the cases of Meera Bhanja v. Smt. Nirmala Kumari Choudary, reported in ( AIR 1995 SC 455 ) and Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, reported in ( AIR 1979 SC 1047 ). 9. In Haridas Das (supra), the Supreme Court had noted the judgment in the cases of Meera Bhanja v. Smt. Nirmala Kumari Choudary, reported in ( AIR 1995 SC 455 ) and Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, reported in ( AIR 1979 SC 1047 ). The Supreme Court observed that there is nothing in Article 226 of the Constitution of India to preclude the High Court from exercising 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. However, there are certain limitations 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. However, the power of review cannot be exercised on the ground that the decision was erroneous on merit. 10. In Board Of Control For Cricket in India (supra), the Supreme Court laid down that an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason. What would be the meaning of the word “sufficient reason” would, however, depend on the facts and circumstances of the case. 11. In Chander Kanta Bansal (supra), in paragraph 16 the Supreme Court stated as follows: “16. The words ‘due diligence’ have not been defined in the Code. According to Oxford Dictionary (Edn. 2006), the word ‘diligence’ means careful and persistent application or effort. ‘Diligent’ means careful and steady in application to one’s work and duties, showing care and effort. As per Black’s Law Dictionary (18th Edn.), ‘diligence’ means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. 2006), the word ‘diligence’ means careful and persistent application or effort. ‘Diligent’ means careful and steady in application to one’s work and duties, showing care and effort. As per Black’s Law Dictionary (18th Edn.), ‘diligence’ means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. ‘Due diligence’ means the diligence reasonably expected from, and ordinarily exercised by a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edn. 13-A) ‘due diligence’, in law, means doing everything reasonable, not everything possible. ‘Due diligence’ means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs.” 12. A perusal of the judgment sought to be reviewed goes to show that in the writ proceeding, the learned counsel for the writ petitioner had contended that a sum of Rs. 1,50,000.00/- (Rupees one lakh fifty thousand) is liable to be awarded to the petitioner as compensation in view of the valuation of the animals as demonstrated in the post-mortem examination report. The post-mortem examination report dated 27.05.2015 was given by one Veterinary Officer of Rangapani State Veterinary Office. 13. A perusal of the records of the writ petition goes to show that no affidavit was filed by respondent Nos. 2, 3, 4 and 5, who are the petitioners in the instant review petition. Attention of the Court was drawn to the notification dated 18.12.2013 of the APDCL, which stipulated that compensation, in case of death of animal, will have to be determined on the basis of the valuation of the livestock as fixed by the Animal Husbandry and Veterinary Department, Government of Assam, from time to time. The writ petitioner also based his claim for compensation on account of the death of his buffaloes on the basis of the valuation as fixed in the post-mortem report. 14. Though two reports regarding the price of the animals during the relevant period of time have been placed before the Court by the same authority, what is manifestly clear is that price of a male buffalo was not fixed at Rs. 75,000.00/- during the relevant period, namely, 2014-2015. 14. Though two reports regarding the price of the animals during the relevant period of time have been placed before the Court by the same authority, what is manifestly clear is that price of a male buffalo was not fixed at Rs. 75,000.00/- during the relevant period, namely, 2014-2015. It is, however, not understood as to why there has to be difference in the price of animals in the documents enclosed to the review petition and the documents produced by Mr. Hussain during the course of the arguments today. Both the documents are under the signature of Senior Research Officer (Stats). While in the document relied upon by Mr. Dutta the average price of a male buffalo is shown as Rs. 28,000.00/- (Rupees twenty-eight thousand), in the document produced by Mr. Hussain it is fixed in the range of Rs. 18,000.00/- – Rs. 32,000.00/-. 15. In normal circumstances, a writ court is not the appropriate forum for grant of compensation. However, in view of the submissions of the learned counsel for the parties, a presumptive element crept into the order under review in the sense that the figure of Rs. 75,000.00/- for each buffalo was considered to be the price fixed by the Government in the Animal Husbandry Department as the signatory of the post-mortem examination report was the Veterinary Officer of Rangapani State Veterinary Office. 16. It cannot be construed that the petitioner will be entitled to compensation beyond the value fixed by the Government in a writ proceeding. As the valuation made by the Government has now been placed before the Court, the same will constitute a sufficient cause, in the facts and circumstances of the case, to enable this Court to review the judgment . Accordingly, the impugned judgment dated 31.08.2016 is reviewed fixing the value of the buffaloes at Rs. 32,000.00/- each on the basis of the document produced by Mr. Hussain. 17. At the time of issuing notice in the review petition, direction was given to the review petitioners to deposit Rs. 60,000.00/- before the Registry of this Court. It is submitted at the Bar that the amount had been withdrawn by the respondents herein. Though the balance amount payable on account of death of the buffaloes would come to Rs. 4,000.00/-, the review petitioners are directed to pay a lump sum amount of Rs. 5,000.00/- (Rupees five thousand) on that account. 60,000.00/- before the Registry of this Court. It is submitted at the Bar that the amount had been withdrawn by the respondents herein. Though the balance amount payable on account of death of the buffaloes would come to Rs. 4,000.00/-, the review petitioners are directed to pay a lump sum amount of Rs. 5,000.00/- (Rupees five thousand) on that account. In addition, the review petitioners are directed to pay a sum of Rs. 5,000.00/- (Rupees five thousand), towards the cost of the proceeding. The amount of Rs. 10,000.00/- directed to be paid will be deposited by the review petitioners before the Registry of this Court within a period of one month from today and, on such deposit being made, the respondents herein will be entitled to withdraw the same on proper identification. 18. Review petition stands disposed of in terms of the above.