Full Judgment Text
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CASE NO.:
Review Petition (civil) 238 of 2003
PETITIONER:
Kerala State Electricity Board
RESPONDENT:
Hitech Electrothermics & Hydropower Ltd.and others
DATE OF JUDGMENT: 10/08/2005
BENCH:
K.G. BALAKRISHNAN & B.P. SINGH
JUDGMENT:
J U D G M E N T
REVIEW PETITION (CIVIL) NO. 238 OF 2003
IN
CIVIL APPEAL NO.8322 OF 2001
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
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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
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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
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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.
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