Case: Kerala State Electricity Board Vs. Hitech. Elect.&amp; Hydro Power Ltd.

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. 7. 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.8. 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. 9. 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.10. 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.11. 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". 12. 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]9. 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.10. 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.11. 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 followsRohtagi, 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.