A. Hazarika, J.
1. The power of review, which inheres in every court of plenary jurisdiction has been invoked by filing the review application for review of the judgment and order dated 17.3.2005, passed in Writ Appeal No. 25(SH) of 2002 in Civil Rule No. 262 (SH) of 2002, to prevent miscarriage of justice as pleaded, wherein the writ appellate court has concurred with the judgment and order dated 21.8.2002 passed by the learned Single Judge, holding that no case has been made out for interference while dismissing the writ appeal.
2. The grounds of review as averred, would reveal that the writ appellate court has proceeded to decide the case under the provisions of Indian Electricity Act, 1910 (Act 9 of 1910) (herein after referred to as Act 9 o f (1910), whereas the said Act 9 of 1910 has been repealed under Section 185 of the Electricity Act of 2003 (Act 36 of 2003) (hereinafer referred to as Act 36 of 2003), with effect from 26.5.2003 and therefore, it was incumbent on the part of the appellate court to consider the case of the petitioner under the provisions of Act 36 of 2003, which is an error apparent on the face of the record. It has been submitted on behalf of the petitioner that the provisions of the Act 36 of 2003 could not be brought to the notice of the court, which, after exercise of due diligence was not within his knowledge when the case was heard, which deserves reconsideration under review jurisdiction. It has further been averred that the respondent authorities, which by issue of specific sanction allowed connecting the premises, were estopped to severe the electric connection from the premises of the petitioner unilaterally, without any enquiry.
3. Apart from coming into force of Act 36 of 2003 as aforesaid, the important issues as could be seen from the grounds of review relating to misconstrue of the word 'Licensee' under Section 2(h) of Act 9 of 1910 coupled with the word 'Consumer' under Section 2(c) of the said Act along with Military Engineering Service Rules (hereinafter referred to as MES Rules only) with reference to MES No. I.A.F.W. 2191 while deciding the case, which is a clear case of an error apparent on the face of the record and the interest of justice demands to exercise the power of review to correct error to prevent miscarriage of justice.
4. In order to appreciate the grounds seeking review of the orders passed in Writ Appeal as well as Civil Rule, this Court requires to recapitulate the fact of the case which is summarised hereinbelow.
5. The petitioner on his superannuation from the Defence Department, Government of India, had owned a residential house in Kiran Line Basti, State of Meghalaya, which is situated within the cantonment area. The residential area being within the cantonment area, the supply of electricity by the Meghalaya State Electricity Board is not provided directly. Therefore, he had to apply for electricity connection to the Army Authorities under Military Engineering Service Rules and MES No. IAFW 2191. The Army Authorities after considering the application had agreed to supply energy subject to fulfillment of certain conditions as required under the law. The petitioner having fulfilled the conditions imposed, the electricity connection was provided in his residential house and he was enjoying the electricity till the notice dated 22.7.2002 was served, by which, he was informed that due to acute shortage of supply of electricity, the electric connection will be disconnected, which is the subject matter of the writ petition being Civil Rule No. 262 (SH) of 2002.
6. The aforesaid Civil Rule came up for consideration before the learned Single Judge on 21.8.2002 and the learned Single Judge dismissed the Writ Petition which is again assailed before the Division Bench and the Division Bench has concurred with the judgment passed by the learned Single Judge against which the review jurisdiction has been invoked as indicated above.
7. Admittedly, the learned Single Judge dismissed the Writ Petition on 21.8.2002, when the Indian Electricity Act 9 of 1910 was in force. The said Act has been repealed under Section 185 of the Act 36 of 2003. Section 185 (2) (a) of the said Act provides that notwithstanding such repeal anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmation or declaration made or any license, permission, authorization or exemption granted or any document or instrument executed or any direction given under the repealed law shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act.
8. Opening the argument on behalf of the petitioner, Mr. B.N. Dutta, the learned Senior Counsel has drawn our attention to the provisions of the learned Act and the amended Act 2003 along with the MES Rules and the MES (E&M;) Branch Rules for supply of electricity Energy distributed by the MES No. IAFW 2191 and urged that the petitioner has applied for supply of energy to his residential house as per provisions of the repealed Act along with the MES Rules. The respondents authority on being satisfied supplied the electricity after observing all the formalities and he became a consumer under the licensee of MES and therefore, disconnection of the electric connection of the petitioner's residence by the respondent authority without prior show cause/enquiry etc. is directly hit by the doctrine of promissory estoppel. This impugned action of the respondent authority is also arbitrary and unreasonable in view of the fact that the electric connection of the petitioner's residence was disconnected on an extraneous ground i.e. acute shortage of electricity. That may be a ground for temporary disconnection, but not to deprive the petitioner permanently from enjoying an existing facility enjoyed for a long time.
These vital and material facts were not at all considered by this Court while disposing the writ appeal, submitted learned Counsel for the review petitioner.
9. Countering the submissions made by the counsel of the petitioner, Mr. S.C. Shyam, the learned Central Government Counsel, appearing for the respondents has supported the judgment of both the courts and has urged that the scope of application for review is more restricted than that of an appeal and therefore, the review application has no merit and deserve to be dismissed.
10. We have considered the rival submissions made by the parties. A close scrutiny of the provisions of Act 9 of 1910 and the Rules made thereunder, the provisions of Act 36 of 2003 along with the provisions of MES Rules and MES No. IAFW 2191, it would reveal that the word 'consumer' has been defined under Section 2(c) and 2(15) of the respective Acts which is more or less pari materia with a slight variation in the language. Section 2(h) and Section 2(38) and 2(39) of respective Acts provides for license and licensee. Section 2(h) of the Act 9 of 1910 defines licensee which means any person licensed under Part II to supply energy. Section 2(38) of the Act 36 of 2003 defines license which means a license granted under Section 14 of the Act. Section 2(39) of the Act 36 of 2003 defines licensee which means a person who has been granted a license under Section 14 of the Act.
11. On the other hand, under the MES Rules, the definition of 'consumer' is given in Section 2(C) of the Indian Electricity Act, 1910. The Government of India represented by the MES is the 'licensee'. Furthermore, MES No. I.A.F.W. 2191 deals with the Rules for the supply of Electric Energy distributed by MES to paying consumers. The said rules provides for certain conditions binding upon the consumer (whether owner or occupier). There are special conditions which relates to enquiry form under Rule 2. Rule 3 provides for service connection, Rule 4 provides for deposit. Rule 8 provides for meters. Rule 10 deals with disconnection of supply of electric energy.
12. Now the question is to be decided as to whether the Review Petitioner is a 'consumer' under Section 2(c) of the Act 9 of 1910 and Section 2(15) of the Act 36 of 2003. In order to prove that the petitioner is a consumer, the definition of 'consumer' under both the Acts are quoted herein below:
Section 2(c) of the Act 9 of 1910:
2(c) 'Consumer' means any person who is supplied with energy by licensee or the Government or by another person engaged in the business of supplying of energy to the public under this Act or any other law for the time being in force, and includes any person whose premises are for the time being connected for the purpose of receiving energy with the works of a licensee, the Government or such other person as the case may be;
Section 2(15) of the Act 36 of 2003:
2(15) 'Consumer' means any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be.
13. From the facts pleaded and established under the grounds of review makes it clear that the petitioner is entitled to get the protection, both under the repealed Act and the new Act 36 of 2003 under the head of consumer, as the same definition has been adopted by the MES Rules as indicated above. Admittedly, the energy was supplied for the use of the petitioner, who being the occupier of the premises connected with the licensee's electric system i.e. MES. MES being a licensee under the Government of India, it is desirable on the part of the licensee to supply energy to the consumer or else the meaning of license would be nugatory and it would be great public inconvenience.
14. It is most unfortunate that the respondents authority took an inconsistent stand so far as grounds for disconnection of electricity is concerned. It is on record that the notice of disconnection of supply of energy was issued due to shortage of energy, whereas, in the affidavit-in-opposition, filed by the respondents, it has been averred that the petitioner had misused the electricity supply which by itself is contrary to the notice issued on 22.7.2002.
15. The power under review jurisdiction is there to correct all errors which leads to miscarriage of justice, the error being an error apparent on the face of the record. From the foregoing analysis, it can be inferred that the doctrine of promissory estoppel is applicable in the present case, the petitioner being 'Consumer' and respondents authority, a 'licensee' as per Act 1910 and Act 36 of 2003. While disposing the writ appeal this Court totally ignored the principles laid down in a number of cases by the Apex Court, on promissory estoppel. Without going through elaborate discussion of the decisions of the Apex Court on the principles of promissory estoppel, we can safely arrive at the conclusion that arbitrary action of the respondents authority in disconnecting the electricity connection of the residence of the review petitioner, thereby depriving him from enjoying an essential service is an arbitrary and unreasonable action on the part of the respondents. Therefore, the review petition is accepted by setting aside the judgment and order dated 17.3.2005 passed in Writ Appeal No. 25(SH) of 2002 affirming the judgment rendered in Civil Rule No. 262 (SH) of 2002.
16. However, considering the lapse of time of disconnection of electricity to the premises of the petitioner, it is hereby directed to the respondents authority to re-connect the electricity connection to the petitioner within 15 days from the date of receipt of the certified copy of this order to be produced by the petitioner before the respondents authority, after taking the reconnection fee as provided under MES Rule.
17. In the result, this review petition as well as the Writ Appeal and Civil Rule No. 262 (SH) 02 is allowed as indicated above.
Parties are left to bear their own costs.