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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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