KERALA STATE ELECTRICITY BOARD LTD. & ANRversusRUBFILA INTERNATIONAL LIMITED & ORS.

768                       [2022]
               SUPREME COURT     8 S.C.R. 768
                              REPORTS                      [2022] 8 S.C.R.


A          KERALA STATE ELECTRICITY BOARD LTD. & ANR.
                                        v.
               RUBFILA INTERNATIONAL LIMITED & ORS.
                    (Civil Appeal No(s). 8457-8458 of 2022)
B                            NOVEMBER 15, 2022
              [AJAY RASTOGI AND C.T. RAVIKUMAR, JJ.]
             Electricity Laws: Exemption of enhanced power tariff –
      Benefit of five years exemption to new industrial unit from the date
      of commercial production or from the date of energisation – Writ
C
      petition by the respondent no. 1-industrial unit, wherein the Single
      Judge of the High Court held that the benefit should be given from
      the date of energisation on the ground of parity as the Electricity
      Board has extended the benefit of concession to the other industrial
      unit from the date of energisation – Division Bench upheld the order
D     of the Single Judge – Thereafter, the order in the case of the other
      industrial unit was withdrawn by the Board – Review petition filed
      on this ground but it was dismissed holding that withdrawal of order
      itself would not efface the finding of the judgment – On appeal,
      held: The High Court’s holding that withdrawal of exemption in the
      case of the other industrial unit will not efface the finding recorded
E
      in the judgment, is not good and is not sustainable in law –
      Withdrawal of exemption in the case of the other industrial unit
      remained unchallenged and this being an error apparent on the
      face of record – What being prayed for is something which does
      not emerge/contemplate from the Government order and after the
F     order has been withdrawn in the case of the other industrial unit
      with whom parity was claimed by order of the Electricity Board, no
      negative equality would have been claimed by the respondent taking
      aid of Art. 14 of the Constitution – Thus, the impugned judgment
      followed with order passed by the High Court in the review petition,
      set aside.
G
            CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.8457-
      8458 of 2022.
            From the Judgment and Order dated 22.11.2018 of the High Court
      of Kerala at Ernakulam in WA No.2089/2018 and Order dated 29.07.2019
H     in RP No. 506/2019 in WA No. 2089/2018.
                                       768
   KERALA STATE ELECTRICITY BOARD LTD. v. RUBFILA                              769
              INTERNATIONAL LIMITED

      Basant R., Sr. Adv., Raghenth Basant, Ms. Liz Mathew, Vishnu             A
Pazhanganat, Ms. Roopali Lakhotia, Ajay Krishna, Advs. for the
Appellants.
      V. Giri, Sr. Adv., Sreegesh M. K., Amrendra Kumar Mehta, Nishe
Rajen Shonker, Ms. Anu K. Joy, Alim Anvar, Advs. for the Respondents.
      The Judgment of the Court was delivered by                               B

      RASTOGI, J.
      1. Leave granted.
      2. The instant appeals are directed against the judgment and order
dated 22nd November, 2018 followed with order dated 29th July, 2019            C
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
started its commercial production on 26th March, 1995 and the unit was
energised on 16th September, 1995.                                             D
       4. The Government of Kerala under its GO dated 6th February,
1992 granted certain incentives in respect of electricity for new industrial
units starting commercial production between 1st January, 1992 and 31st
December, 1996 for a period of 5 years in regard to payment of enhanced
rate of tariff which came into effect from 1st January, 1992.                  E
      5. In the first round of litigation, the dispute that arose was as to
whether the respondent (industrial unit) is entitled to claim benefit of
incentive from the date of commercial production i.e. 26th March, 1995
or from the date of energisation i.e. 16th September, 1995 for a period of
5 years, but the Division Bench of the High Court under its judgment           F
dated 18th January, 2005 held that the crucial date in terms of the GO
issued by the Government of Kerala dated 6th February, 1992 is the date
of commencement of commercial production and the respondent
(industrial unit) started its commercial production on 26th 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               G
production in respect of the respondent (industrial unit) is 26 th March,
1995 and the claim for concessional tariff for a period upto 16th
September, 2000 based on the date of energisation came to be rejected.
The operative part of the Order dated 18th January, 2005 is referred
hereunder:-                                                                    H
770             SUPREME COURT REPORTS                             [2022] 8 S.C.R.


A                   “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.”
B
             6. It reveals from the record that after dismissal of the writ petition
      by judgment and order dated 18th 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
C     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 of by an order dated 8th March,
      2007 granting liberty to the respondent (industrial unit) to file a
      representation before the Board, if so advised.
D            7. Against the aforesaid orders, the appellants filed Special Leave
      Petition (Civil) No.13408 of 2007 before this Court which came to be
      dismissed by an order dated 20th February, 2009.
            8. In view of the liberty granted by the Division Bench of the
      High Court while disposing of the review application by order dated 8th
E     March, 2007, representation was filed by the respondent (industrial unit)
      and that came to be rejected by the Board by a self-contained reasoned
      order dated 31st 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
F     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
G     the benefit of 5 years’ exemption of enhanced power tariff from the
      date of energisation. The writ petition was disposed of by the learned
      Single Judge by an order dated 19th 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
H            in declining the request of the petitioner. Holding that the petitioner
   KERALA STATE ELECTRICITY BOARD LTD. v. RUBFILA                              771
      INTERNATIONAL LIMITED [AJAY RASTOGI, J.]

      is also entitled for the benefit of five years’ exemption of enhanced    A
      power tariff from the date of energisation, the writ petition is
      allowed. The excess amount shall be refunded to the petitioner
      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.
                                                                               B
      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
came to be dismissed by the judgment and order dated 22nd November,
2018 on the premise that since the Board had taken a different view in         C
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   D
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        E
Patspin India Ltd.) has been granted certain 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 dated 22nd 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          F
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 to be dismissed by Order dated 29th 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         G
instance of the appellants before this Court. Extract of order dated 22nd
November, 2001 pursuant to which concession to M/s. Patspin India
Limited was withdrawn from the date of energisation is reproduced
hereunder:-
                                                                               H
772      SUPREME COURT REPORTS                           [2022] 8 S.C.R.


A                             “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
B     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 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
C
      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
D     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
E     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.
F            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
G     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.”
H
   KERALA STATE ELECTRICITY BOARD LTD. v. RUBFILA                                773
      INTERNATIONAL LIMITED [AJAY RASTOGI, J.]

       12. It is further brought to our notice that apart from the controversy   A
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 was 50% or more power cut in terms of the
                                                                                 B
Board’s Order but that has not been extended to the respondent (industrial
unit) herein, the extension of the period of application pre-1992 tariff
was from 26th March, 2000 to 26th October, 2000 so as to cover the
period where there was 50% or more power cut, has been extended to
the respondent (industrial unit) as per the Board’s order dated 18th
October, 2000 (Ann.P-5).                                                         C
       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 order dated
22nd 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        D
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         E
Order dated 6th February, 1992 is concerned, the new industrial unit
starting production between 1st January, 1992 and 31st December, 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 26 th March, 1995 and         F
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 GO dated 6th February, 1992. More              G
so, after the order came to be passed on 22nd 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.                                H
774                SUPREME COURT REPORTS                          [2022] 8 S.C.R.


A             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 taking note
      of the order of withdrawal dated 22nd November, 2001, 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
B
      manner as extended to M/s Patspin India Ltd., which is indicated in the
      order dated 22nd 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 Ltd. in terms of the order dated 22nd November, 2001.
C            16. Learned counsel further submits that if the period of
      commercial production in the case of the respondent (industrial unit) is
      taken from 26th March, 1995 which may be effective for a period of 5
      years upto 25th March, 2000, the period which is subsumed within 5
      years from the date of commercial production, at least the respondent
D     (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) dated 18th October, 2000. In
      support of his submissions, learned counsel has placed reliance on the
E     judgment of this Court in S.V.A. Steel Re-Rolling Mills Limited and
      Others vs. State of Kerala & Others1.
             17. We have heard learned counsel for the parties and with their
      assistance perused the material on record.

F             18. It is not disputed that enhanced power tariff became effective
      from 1st January, 1992 and the Government of Kerala came with the
      GO dated 6th February, 1992 to provide exemption from enhanced power
      tariff to new industrial units starting commercial production between 1 st
      January, 1992 and 31st December, 1996 for a period of 5 years from the
      date the unit started commercial production.
G
             19. In the case of the present respondent (industrial unit), admittedly
      the date to start commercial production was 26th March, 1995 and thus
      the respondent (industrial unit) was entitled for exemption from enhanced
      power tariff upto 25th March, 2000. Indisputedly, the exemption from
      1
H         (2014) 4 SCC 186
   KERALA STATE ELECTRICITY BOARD LTD. v. RUBFILA                               775
      INTERNATIONAL LIMITED [AJAY RASTOGI, J.]

enhanced power tariff for 5 years from the date of commencement of              A
commercial production was extended to the respondent (industrial unit).
       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 period of 5 years           B
in terms of GO dated 6th February, 1992 but the very foundation on
which the respondent (industrial unit) proceeded, stands nullified after
passing of the order dated 22nd 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      C
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           D
law.
        21. That apart, it was nowhere the case of the respondent
(industrial unit) that the benefit seeking exemption from enhanced power
tariff as being granted by the Government under its GO dated 6th February,
1992 from the date of production or other benefits extended to new              E
industrial units started commercial production between 1st January, 1992
to 31 st 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 6th 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 of the Board dated 22nd November,              F
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           G
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, as it reflected
from the order dated 18th October, 2000 (Ann. P-5) granting extension
for the period of pre-1992 tariff to the respondent (industrial unit) from      H
776              SUPREME COURT REPORTS                         [2022] 8 S.C.R.


A     26th March, 2000 till 25th October, 2000 to 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 has not subsumed the period of 5 years in
      terms of GO dated 6th February, 1992.
B            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 the
      Government of Kerala in terms of GO dated 21st May, 1990 followed
      with GO dated 6th February, 1992 and that being considered in the case
C     of present respondent (industrial unit) of which reference has been made,
      indeed complied with by the Board by order dated 18th October, 2000.
            24. Consequently, the appeals deserve to be allowed and are
      accordingly allowed. The judgment impugned dated 22nd November, 2018
      followed with order dated 29th July, 2019 passed by the High Court of
D     Kerala at Ernakulam are hereby set aside.
             25. There shall be no order as to costs.
             26. Pending application(s), if any, shall stand disposed of.

E     Nidhi Jain                                                  Appeals allowed.
      (Assisted by : Shashwat Jain, LCRA)




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