SUPREME COURT OF INDIA
Kerala State Electricity Board
Vs
Hitech Electrothermics and Hydropower Limited
Review Petition (Civil) 238 of 2003
(K.G.Balakrishnan and B.P.Singh)
10/08/2005
B. P. SINGH, J.
This review petition has been preferred by the Kerala State Electricity Board
under Article 137 of the Constitution of India seeking review of the judgment
and order of this Court dated December 17, 2002 passed in Civil Appeal No. 8322
of 2001 whereby this Court set aside the judgment and order of the Kerala High
Court and partly allowed the appeal preferred by the respondent herein.
Briefly stated the facts of the case are that the respondent herein claimed
benefit of the Industrial Policy announced by the Government of Kerala offering
the concessional rate of tariff and electricity duty to new industries for a
period of five years from the date of commercial production, if the production
commenced between 1.1.1992 to 31.12.1996. Admittedly the respondent herein did
not commence commercial production before the specified date, but its case was
that the respondent had done all that was within its control and applied to the
Kerala State Electricity Board in good time. However, the supply of electrical
energy was not commenced till October 22, 1998. It was the case of the
respondent that it was entitled to the benefit of concessional rate of tariff
and electricity duty under the aforesaid Industrial Policy of the Government,
since it could not be blamed for delay in commercial production if that was on
account of latches and inaction on the part of the Kerala State Electricity
Board which did not commence supply of electrical energy till October 22, 1998.
The respondent filed a writ petition before the High Court of Kerala at
Ernakulam being O.P. No. 30179 of 1999. A learned Judge of the High Court by
his judgment and order dated December 21, 2000 dismissed the writ petition
holding that since the respondent had not started commercial production before
the date specified in the Government's policy, it was not entitled to the
benefit of the concessional rate of tariff and electricity duty under the said
policy. It further held, on a consideration of the evidence on record, that the
respondent had failed to establish that it was solely due to the fault of the
Electricity Board that the respondent could not commence production before 31st
December, 1996.
The respondent herein preferred an appeal before a Division Bench being W.A.
No. 820 of 2001 which was disposed of by judgment and order of April 6, 2001.
The appeal preferred by the respondent was dismissed. The appellate Bench took
the view that if the commercial production was not commenced within the period
specified in the Industrial Policy of the Government, the industrial unit could
not claim the benefit of concessional tariff. Rejecting the contention of the
respondent that it was on account of the fault of the Board that it could not
start commercial production before 31st December, 1996, it held that the Electricity
Board and the Government are only concerned with its promise under the
Industrial Policy.
It was not necessary for the Government or the Electricity Board to find out
whether the company could have started commercial production before the cut off
date or whether there was any fault on the part of the respondent for not
having started the commercial production before the cut off date. It observed:-
"We are not going to find out on whose side the fault was. Even if we
accept for arguments sake that there was delay on the part of the Electricity
Board to supply electrical energy that does not compel the Electricity Board to
apply the notification to the petitioner, when the commercial production is
started only after the cut off date.
There is no question of estoppel or legitimate expectation arising here. Of
course, it is mot unfortunate that a company which wanted to avail of the
tariff concession was not able to do so due to the delay in having the electric
connection. As we have already stated, supply of electrical energy depends on
many factors. In the above view of the fact, it is not necessary to into and
discuss about the question of promissory estoppel or legitimate expectation or
whether the writ is maintainable. According to us, to get the benefit of
Ext.P7, what is necessary is to find out whether the commercial production has
been started between the dates mentioned in Ext.P7.
If the commercial production could be started within the cut off date, it is
not necessary to go behind the reason why it could not be started." *
The respondent preferred Civil Appeal No. 8322 of 2001 before this Court
wherein it was contended by the respondent that the delay in commencing
commercial production was solely on account of the inaction of the Electricity
Board which did not supply electrical energy to the respondent till October 22,
1998, even though it was ready to receive the said electrical energy and had
applied for the same well within time.
On the other hand learned Additional Solicitor General appearing for the State
of Kerala and the Kerala State Electricity Board vehemently contended before
this Court that the language of the policy was unequivocal and such policy
clearly stipulated that only those units which started commercial production between
1.1.1992 and 3112.1996 were entitled to the concessional tariff indicated in
the policy. The respondent having failed to do so could not claim such benefit
under the Industrial Policy.
It was also contended that even if there have been some latches on the part of
the Electricity Board in its failure to provide power connection in time, the
same was not one sided and the respondent itself was not in a position to start
commercial production within the stipulated date. Having urged these
contentions, learned Additional Solicitor General appearing for the State and
the Electricity Board responded to the suggestion from the Court that the
appeal may be disposed of on equitable consideration by reducing the period for
which concessional tariff could be given to the respondent.
This Court after examining the Industrial Policy came to the conclusion that in
terms of the said Policy the concessional tariff could be availed of only by
industrial units which started commercial production between 1.1.1992 to 31.12.1996.
To this extent it accepted the submission urged on behalf of the State and the
Electricity Board. However, the Court further considered the question whether
the respondent could not commence commercial production on account of delay and
latches on the part of the Electricity Board. It noticed the fact that power
allocation had been made in favour of the respondent as early as in the year
1995, yet electrical energy could not be supplied on account of which
commercial production could not commence in the factory of the respondent by
31st December, 1996. This Court further considered whether it would be
equitable to deny relief to the respondent by giving a literal interpretation
to the incentive scheme of the Government, as adopted by the Electricity Board.
In this context this Court considered documents on record which were produced
before the Court and reached the conclusion that the respondent had been
communicating with the Board seeking power connection at an early date so that
it could start commercial production by December 31, 1996. It had also brought
to the notice of the Board that it had made all other arrangements to commence
commercial production but there was inaction on the part of the Electricity
Board in providing electrical energy to the respondent
This Court also noticed the contents of a letter of the respondent on which
considerable reliance was placed by the Electricity Board which contended that
having regard to the contents of the aforesaid letter, it was apparent that the
respondent could not possibly commence commercial production by December 31,
1996. This contention was rejected by this Court. In the given circumstances
this Court held that the respondent was alteast entitled to concessional tariff
for a period of 3 years instead of 5 years as indicated in the Industrial
Policy as that would meet the ends of justice.
Mr. T.L. Viswanatha Iyer, learned senior counsel appearing on behalf of the
Kerala State Electricity Board has taken us through several letters which were
on record and argued before us that having regard to the correspondence
exchanged between the parties it is apparent that there was no material before
this Court to hold that the respondent was ready in all respects to receive
electrical energy before the specified date. This Court was, therefore, not
right in granting relief on equitable consideration since the respondent did
not fulfil the condition precedent for claiming benefit under the Industrial
Policy. On the other hand Dr. A.M. Singhvi, learned senior counsel appearing on
behalf of the respondent submitted that there is correspondence on record which
would establish that the respondent was ready for commissioning of its plant
and going into commercial production, but on account of delay and latches as
well as inaction on the part of the Electricity Board it could not do so.
This Court was, therefore, justified in granting limited relief on equitable
consideration.
It was also urged on behalf of the Electricity Board that learned counsel
appearing on behalf of the Board made a concession which he had no authority to
make. The respondent on the other hand contended that the learned counsel
appearing on behalf of the Board did not make any concession and vehemently
contested the matter before this Court. The submission made by him regarding
grant of relief on equitable consideration was only in the alternative i.e. in
case his contention on merit did not find favour with this Court. He also
relied upon several decisions of this Court holding that a review petition
cannot be treated as an appeal in disguise.
Having heard them at length, we are of the considered view that this review
petition must be rejected. While it is true that a forceful argument has been
advanced by the Electricity Board on the basis of the correspondence exchanged
between the parties, at the same time learned counsel for the respondent has
also brought to our notice some other letters which formed part of the
correspondence between the parties, which tend to support his plea that the
respondent was ready and prepared to accept the supply of electrical energy but
the same was not given promptly by the Electricity Board.
This Court has referred to several documents on record and also considered the
documentary evidence brought on record. This Court on a consideration of the
evidence on record concluded that the respondent had been denied power supply
by the Board in appropriate time which prevented the respondent from starting
the commercial production by December 31, 1996. This is a finding of fact
recorded by this Court on the basis of the appreciation of evidence produced
before the Court. In a review petition it is not open to this Court to
re-appreciate the evidence and reach a different conclusion, even if that is
possible. # Learned counsel for the Board at best sought to impress us that
the correspondence exchanged between the parties did not support the conclusion
reached by this Court. We are afraid such a submission cannot be permitted to
be advanced in a review petition.
The appreciation of evidence on record is fully within the domain of the
appellate court. If on appreciation of the evidence produced, the Court records
a finding of fact and reaches a conclusion, that conclusion cannot be assailed
in a review petition unless it is shown that there is an error apparent on the
face of the record or for some reason akin thereto. It has not been contended
before us that there is any error apparent on the face of the record. To permit
the review petitioner to argue on a question of appreciation of evidence would
amount to converting a review petition into an appeal in disguise. #
We are also of the view that learned counsel appearing for the Board made no
concession before this Court. A mere perusal of the judgment of this Court discloses
that he urged all submissions on behalf of the Board with great vehemence.
There is an observation in the judgment which is as follows :-
"Mr. Rohtagi, however to the suggestion from the Court finally agreed
that the appeal can be disposed of on equitable consideration by this Court by
reducing the period for which concessional tariff could be given to the
appellant". *
This observation cannot be read in isolation because we find that thereafter
this Court proceeded to examine the Industrial Policy of the Government and
came to its conclusions on the basis of its analysis of the policy and the
evidence on record. We do not find that the judgment of this Court proceeds on
any concession made by learned counsel appearing on behalf of the Electricity
Board.
We, therefore, find that the review petition lacks merit and the same is
accordingly dismissed.