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

2. 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 Governments 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, 1996.3. 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 observedare 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."

Court's reasoning:
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.