Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIIL APPEAL NO(s). OF 2022
(Arising out of Special Leave Petition (C) No(s).28366-28367 of 2019)
KERALA STATE ELECTRICITY BOARD
LTD. & ANR. ….APPELLANT(S)
VERSUS
RUBFILA INTERNATIONAL LIMITED
& ORS. ….RESPONDENT(S)
J U D G M E N T
Rastogi, J.
1. Leave granted.
2. The instant appeals are directed against the judgment and order
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dated 22 November, 2018 followed with order dated 29 July, 2019
passed by the High Court of Kerala at Ernakulam.
3. The seminal facts relevant for the purpose of disposal of the
present appeals are that respondent no. 1 is an industrial unit which
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started its commercial production on 26 March, 1995 and the unit
Signature Not Verified
Digitally signed by
Ashwani Kumar
Date: 2022.11.15
16:57:58 IST
Reason:
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was energised on 16 September, 1995.
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4. The Government of Kerala under its GO dated 6 February,
1992 granted certain incentives in respect of electricity for new
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industrial units starting commercial production between 1 January,
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1992 and 31 December, 1996 for a period of 5 years in regard to
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payment of enhanced rate of tariff which came into effect from 1
January, 1992.
5. In the first round of litigation, the dispute that arose was as to
whether the respondent (industrial unit) is entitled to claim benefit
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of incentive from the date of commercial production i.e. 26 March,
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1995 or from the date of energisation i.e. 16 September, 1995 for a
period of 5 years, but the Division Bench of the High Court under its
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judgment dated 18 January, 2005 held that the crucial date in
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terms of the GO issued by the Government of Kerala dated 6
February, 1992 is the date of commencement of commercial
production and the respondent (industrial unit) started its
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commercial production on 26 March, 1995 and accordingly while
disposing of the petition filed at the instance of the respondent herein
returned a finding that the date of commercial production in respect
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of the respondent (industrial unit) is 26 March, 1995 and the claim
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for concessional tariff for a period upto 16 September, 2000 based
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on the date of energisation came to be rejected. The operative part of
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the Order dated 18 January, 2005 is referred hereunder:-
“We are of the view, crucial date is date of commencement of
commercial production. Certificate produced by the petitioner
would show the date of commencement of commercial production
on 26.03.1995. In the above circumstances, the claim of the
petitioner for concessional tariff for a period up to 16.09.2000
cannot be granted.”
6. It reveals from the record that after dismissal of the writ petition
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by judgment and order dated 18 January, 2005, a review
application was filed by the respondents and it was prayed that
instead of the date of commencement of commercial production, date
of energisation has been considered by the Kerala State Electricity
Board (hereinafter referred to as “the Board”) granting concession to
other industrial units. Taking note of the statement made by the
respondent(industrial unit), the review petition came to be disposed
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of by an order dated 8 March, 2007 granting liberty to the
respondent (industrial unit) to file a representation before the Board,
if so advised.
7. Against the aforesaid orders, the appellants filed Special Leave
Petition (Civil) No.13408 of 2007 before this Court which came to be
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dismissed by an order dated 20 February, 2009.
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8. In view of the liberty granted by the Division Bench of the High
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Court while disposing of the review application by order dated 8
March, 2007, representation was filed by the respondent (industrial
unit) and that came to be rejected by the Board by a self-contained
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reasoned order dated 31 August, 2007.
9. That gave a fresh cause of action and a writ petition came to be
preferred at the instance of the respondents. The only contention
advanced and persuaded the learned Single Judge of the High Court
in the second round of litigation was that a benefit of 5 years’
exemption for enhanced power tariff has been granted to another
industrial unit, M/s Patspin India Ltd., from the date of energisation
and accordingly it was directed that the respondent(industrial unit)
is also entitled to claim the benefit of 5 years’ exemption of enhanced
power tariff from the date of energisation. The writ petition was
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disposed of by the learned Single Judge by an order dated 19
September, 2017. The extract of the order of the learned Single
Judge is reproduced herein:
“4. Therefore, this Court is of the view that the Board is not
justified in declining the request of the petitioner. Holding that the
petitioner is also entitled for the benefit of five years’ exemption of
enhanced power tariff from the date of energisation, the writ petition
is allowed. The excess amount shall be refunded to the petitioner
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within a period of four months. It is open for the respondents to
adjust the excess amount received from the petitioner from the
future bills by passing appropriate orders in regard to the same. No
costs.”
10. The aforesaid order came to be challenged by the appellants in
writ appeal before the Division Bench of the High Court and that
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came to be dismissed by the judgment and order dated 22
November, 2018 on the premise that since the Board had taken a
different view in the case of M/s Patspin India Ltd. where the
concession has been extended from the date of energisation to the
unit rather than from the date of commercial production, finally
upheld order of the learned Single Judge holding that the
respondent(industrial unit) is entitled for the concession as being
granted to M/s Patspin India Ltd. and that makes the respondent
(industrial unit) entitled to the benefit of concession for 5 years from
the date of energisation.
11. After the writ appeal came to be dismissed, a review application
was filed at the instance of the present appellants and at this stage,
it was brought to the notice of the High Court that claim of the
respondent (industrial unit) was based on the plea that other
industrial unit (M/s Patspin India Ltd.) has been granted certain
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benefits from the date of energisation, but the order in the case of
M/s Patspin India Ltd. has been withdrawn by the Board by its order
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dated 22 November, 2001 and once the very foundation on which
the respondent (industrial unit) claimed concession of 5 years from
the date of energisation loses its effect/stands demolished, the
judgment granting benefit to the industrial unit from the date of
energisation deserves to be recalled, but the review application came
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to be dismissed by Order dated 29 July, 2019 on the premise that
the benefit once extended to M/s Patspin India Ltd. even has been
reviewed by the Board, that in itself will not efface the finding of the
judgment and that became the subject matter of challenge at the
instance of the appellants before this Court. Extract of order dated
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22 November, 2001 pursuant to which concession to M/s. Patspin
India Limited was withdrawn from the date of energisation is
reproduced hereunder:-
“O R D E R
Based on the G.O., B.O & Certificate issued by the Kerala
State Industrial Development Corporation referred 1,2 & (3) above,
sanction was accorded vide reference (5) by the Financial Adviser &
Chief Accounts Officer, K.S.E. Board, extending the benefit of
concessional tariff(Pre-92 tariff) to M/s. Patspin India Limited,
Kanjikode, for a period of 5 years from 01.4.94 to 31.3.99. The
Board vide order referred to (6) above has accorded sanction to
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extend the concessional tariff for the period where there was 50% or
more power cut to the eligible consumers. As such, M/s. Patspin
India Ltd.., Cons. Code No. 26/2662, is also eligible for the extension
of concessional tariff to compensate the period of power cut of 214
days. While going through the certificate dated 15.10.1994 issued
by the Kerala State Industrial Development Corporation, it has been
observed that the actual date of commencement of commercial
production as per item 9 of the certificate is 18.01.94 (with using
D.G. set). Period of concession to be given as per item 10, is
01.04.94 to 31.03.99. (For 1000 KVA) & from 01.08.94 to 31.07.99
(for 2500 KVA).
As per G.O referred to (1) above, vide para 1(1), it is clearly
mentioned that incentive as per the G.O is “to the units from the
date of commercial production which start such production between
01.01.92 to 31.12.96”. Since the date of Commercial Production is
18.01.94. M/s Patspin India Limited, Cons. Code No. 26/2662 is
eligible for 5 years concessional tariff from the date of commercial
production, i.e., from 18.01.94 to 17.01.1999.
As such the proceedings of the Financial Adviser and Chief
Account Officer Dtd. 11.11.94 referred (5) above is modified and the
consumer is eligible for Pre-92 tariff from 18.01.94 to 17.01.99.
Sanction is hereby accorded to extend to benefit of
concessional tariff for 214 days to compensate the period where
there was 50% and more power cut from 01/96 to 12/97, from
18.01.99 to 19.08.99. The invoice for the above period will be
revised and the excess collected, if any, will be adjusted.
The order read as fifth paper above stands modified to the
above extent.”
12. It is further brought to our notice that apart from the
controversy which was raised by the respondent(industrial unit)
claiming parity in respect of concessional tariff granted to M/s
Patspin India Ltd., a further objection was raised that the
respondent(industrial unit) is also entitled for extension of the period
of application of pre-1992 tariff at least for the period where there
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was 50% or more power cut in terms of the Board’s Order but that
has not been extended to the respondent (industrial unit) herein, the
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extension of the period of application pre-1992 tariff was from 26
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March, 2000 to 26 October, 2000 so as to cover the period where
there was 50% or more power cut, has been extended to the
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respondent (industrial unit) as per the Board’s order dated 18
October, 2000 (Ann.P-5).
13. Learned counsel for the appellants submits that once the parity
which was claimed by the respondent (industrial unit) with M/s
Patspin India Ltd. has been withdrawn by the appellant Board by
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order dated 22 November, 2001 and it was noticed by the Division
Bench of the High Court at the stage when review application was
filed at the instance of the present appellants, in the given
circumstances, the finding which has been returned in extending the
concessional tariff to the respondent (industrial unit) for 5 years from
the date of energisation is not legally sustainable.
14. Learned counsel further submits that so far as the Government
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Order dated 6 February, 1992 is concerned, the new industrial unit
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starting production between 1 January, 1992 and 31 December,
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1996 was entitled to claim exemption from enhanced power tariff for
a period of 5 years from the date it started commercial production
and in the instant case, the date of commercial production in
reference to the respondent (industrial unit) herein admittedly was
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26 March, 1995 and that was noticed by the Division Bench of the
High Court in the first round of litigation and after the date of
commercial production being settled, the exemption from enhanced
power tariff has been extended to the respondent (industrial unit) for
5 years from the date unit started commercial production in terms of
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GO dated 6 February, 1992. More so, after the order came to be
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passed on 22 November, 2001, benefit in favour of M/s Patspin
India Ltd. being withdrawn, there remain no factual foundation on
the basis of which the parity by the respondent (industrial unit) could
have been claimed. In the given circumstances, the judgment passed
by the Division Bench of the High Court is not legally sustainable and
deserves to be set aside.
15. Per contra, learned counsel for the respondents, on the other
hand, while supporting the finding returned by the Division Bench of
the High Court under the judgment impugned submits that even
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taking note of the order of withdrawal dated 22 November, 2001,
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the respondent (industrial unit) was entitled for concessional tariff
for 214 days to compensate the period when there was 50% or more
power cut, in the manner as extended to M/s Patspin India Ltd.,
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which is indicated in the order dated 22 November, 2001 relied
upon by the Board. The present respondent (industrial unit) is also
entitled for the extension of concessional tariff to compensate the
period of power cut for 214 days as extended to M/s Patspin India
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Ltd. in terms of the order dated 22 November, 2001.
16. Learned counsel further submits that if the period of
commercial production in the case of the respondent (industrial unit)
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is taken from 26 March, 1995 which may be effective for a period of
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5 years upto 25 March, 2000, the period which is subsumed within
5 years from the date of commercial production, at least the
respondent (industrial unit) is entitled for extension of the period of
application of pre-1992 tariff for further 214 days where there was
50% or more power cut, as per the orders of the Board from time to
time and this has not been considered by the Board even while the
orders passed in the case of the present respondent (industrial unit)
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dated 18 October, 2000. In support of his submissions, learned
counsel has placed reliance on the judgment of this Court in S.V.A.
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Steel Re-Rolling Mills Limited and Others vs. State of Kerala &
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Others .
17. We have heard learned counsel for the parties and with their
assistance perused the material on record.
18. It is not disputed that enhanced power tariff became effective
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from 1 January, 1992 and the Government of Kerala came with the
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GO dated 6 February, 1992 to provide exemption from enhanced
power tariff to new industrial units starting commercial production
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between 1 January, 1992 and 31 December, 1996 for a period of 5
years from the date the unit started commercial production.
19. In the case of the present respondent (industrial unit),
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admittedly the date to start commercial production was 26 March,
1995 and thus the respondent (industrial unit) was entitled for
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exemption from enhanced power tariff upto 25 March, 2000.
Indisputedly, the exemption from enhanced power tariff for 5 years
from the date of commencement of commercial production was
extended to the respondent (industrial unit).
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(2014) 4 SCC 186
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20. So far as the claim in the second round of litigation seeking
parity with another industrial unit i.e. M/s Patspin India Ltd. is
concerned, the date of energisation has been considered to be the
touchstone for granting exemption from enhanced power tariff for a
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period of 5 years in terms of GO dated 6 February, 1992 but the
very foundation on which the respondent (industrial unit) proceeded,
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stands nullified after passing of the order dated 22 November, 2001
withdrawing the benefit of exemption from enhanced power tariff
from the date of energisation to industrial unit (M/s Patspin India
Ltd.) remained unchallenged and this being the error apparent on the
face of record, the finding which has been returned by the Division
Bench of the High Court holding that withdrawal of exemption in the
case of M/s Patspin India Ltd. will not efface the finding recorded in
the impugned judgment in exercise of its jurisdiction under Article
226 of the Constitution read with Order 47 Rule 1 CPC, in our view,
does not hold good and is not sustainable in law.
21. That apart, it was nowhere the case of the respondent
(industrial unit) that the benefit seeking exemption from enhanced
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power tariff as being granted by the Government under its GO dated
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6 February, 1992 from the date of production or other benefits
extended to new industrial units started commercial production
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between 1 January, 1992 to 31 December, 1996 has not been
extended to the respondent (industrial unit). What being prayed for
is something which does not emerge/contemplate from the GO dated
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6 February, 1992 and after the order has been withdrawn in the
case of M/s Patspin India Ltd. with whom parity was claimed by order
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of the Board dated 22 November, 2001, no negative equality would
have been claimed by the respondent taking aid of Article 14 of the
Constitution.
22. So far as the submission which has been made before us in
claiming the benefit of concessional tariff for 214 days for a period
where there was 50% or more power cut is concerned, although this
was not a subject matter of challenge before the High Court but that
apart, the order has been placed on record where the benefit of 214
days was extended to the present respondent (industrial unit) as well,
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as it reflected from the order dated 18 October, 2000 (Ann. P-5)
granting extension for the period of pre-1992 tariff to the respondent
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(industrial unit) from 26 March, 2000 till 25 October, 2000 to
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cover the period when there was 50% or more power cut, as per
Board’s Order with a clear indication that it will be applicable only
for the energy charge for the contract demand of 500 KV, indeed, it
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has not subsumed the period of 5 years in terms of GO dated 6
February, 1992.
23. So far as the judgment in S.V.A. Steel Re-Rolling Mills
Limited and Others (supra) on which the learned counsel for the
respondent (industrial unit) has placed reliance, deal with the self-
same issue for grant of certain benefits of exemption as assured by
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the Government of Kerala in terms of GO dated 21 May, 1990
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followed with GO dated 6 February, 1992 and that being considered
in the case of present respondent (industrial unit) of which reference
has been made, indeed complied with by the Board by order dated
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18 October, 2000.
24. Consequently, the appeals deserve to be allowed and are
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accordingly allowed. The judgment impugned dated 22 November,
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2018 followed with order dated 29 July, 2019 passed by the High
Court of Kerala at Ernakulam are hereby set aside.
25. There shall be no order as to costs.
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26. Pending application(s), if any, shall stand disposed of.
…………………………….J.
(AJAY RASTOGI)
…………………………….J.
(C.T. RAVIKUMAR)
NEW DELHI;
NOVEMBER 15, 2022.
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