Holding

A review petition cannot re‑appreciate evidence; factual findings stand unless an error apparent on the face of the record is shown.

Summary

The Kerala State Electricity Board (KSEB) sought review of a Supreme Court judgment that had granted Hitech Electrothermics limited a reduced concessional tariff of three years, instead of the full five years, because the Board’s delay in supplying electricity prevented the company from commencing commercial production by the policy cut‑off date of 31‑Dec‑1996. The Board argued that the Court should not have re‑appreciated the evidence and that the original finding of fact was erroneous. The Court held that the factual finding—that KSEB’s inaction denied power supply—was based on an appreciation of evidence and could not be revisited in a review petition unless an error apparent on the face of the record existed. Allowing re‑appreciation would convert a review into an appeal in disguise. Consequently, the review petition was dismissed, leaving the original judgment and the three‑year concessional tariff intact.

Issues considered

The scope of a review petition under Article 137: whether it permits re‑appreciation of evidence and alteration of factual findings.
Whether the respondent is entitled to the full five‑year concessional tariff or a reduced period due to the Board’s delay in supplying electricity.

Subjects

review petitionArticle 137reappreciation of evidenceappellate jurisdictionconcessional tariffindustrial policyequitable relieferror apparent on face of record

Judgment

KERALA STATE ELECTRICITY BOARD A
V.

HITECH ELECTROTHERM!CS AND HYDROPOWER LTD.

AUGUST 10, 2005

[K.G. BALAKR!SHNAN AND B.P. SINGH, JJ.] B
Constitution of India, 1950-Article 137-Reappreciation of evidence
in a review petition-Scope of-Held: lt is not within the domain of Review
Court to reappreciate evidence-Once the Court records finding offacts on
appreciation of evidence and reaches a conclusion, that conclusion cannot C
be assailed in review unless it is shown that there is error apparent on the
face of record-To pern1it the review petitioner to argue on a question of
appreciation of evidence would an1ount to converting a review petition into
an appeal in disguise.

Government of Kerala had announced Industrial policy offering D
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 31.12.1006. Respondent was
denied the benefit of Industrial Policy. It preferred a Writ Petition before
High Court which was dismissed on the ground that since the respondent E
had not started commercial production before the date specified in the
Government's policy, it was not entitled to the benefit. The appeal preferred
by respondent was dismissed. Thereafter respondent came up in appeal
before this Court. This Court considered documents on record and held
that the respondent had been communicating with the Board seeking
power connection at an early date so that it could start commercial F
production by 31.12.1996. But there was inaction on the part of the
Electricity Board in providing electrical energy to the respondent. 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. G
Against this, Electricity Board filed the present review petition.

Dismissing the review petition, the C~urt

HELD: The respondent had been denied power supply by the Board
in appropriate time which prevented the respondent from starting the H
517
518 SUPREME COURT REPORTS (2005) SUPP. 2 S.C.R.

A commercial production by 31.12.1996. This is a finding of fact recorded by
this Court on the basis of appreciation of evidence. 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. 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
B
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. 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. [522-F-H; 523-A-B]
c
CIVIL APPELLATE JURISDICTON : Review Petition (C) No. 238 of
2003.

IN

D Civil Appeal No. 8322 of 200 I.

From the Judgment and Order dated 6.4.2001 of the Kerala High Court
in W.A. No. 820 of 2001.

T.L. Viswnatha Iyer and M.T. George for the Appellant. \

E
Dr. A.M. Singhvi, Ramesh Singh, Arunabh Chowdhary, K.N.
Karanjawala, Ms. Kanika Agnihotri, Manik Karanjawala, K.R. Sasiprabhu
and Ms. G. Indira for the Respondents.

The Judgment of the Court was delivered by
F
B.P. SINGH, J. : This review petition has been preferred by the Kerala
State Electricity Board under Article 137 of the Constitut!cn 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
G
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
H for a period of five years from the date of commercial production, if the
KERALA STATE ELECT SD.•·. HITECH ELECTROTHERMICS ANO HYDROPOWER LTD. (SINGH, J.J 5 J9

production commenced between 1.1.1992 to 31.12.1996. Admittedly the A
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
B
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 ofKerala at Ernakulam being O.P. c
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 D
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 Bench
E
being W.A. No. 820 of 200 I which was disposed of by judgment and order
of April 6, 200 I. 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 F
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 starte'.I commercial production before the cut off
date or whether there was any fault on the part of the respondent for
G
not having started the commercial production before the cut off date. It
observed :-

.. ''We are not going to find out on \vhose side the fault was. Even
if we accept for arguments sake that there was delay on the part of H
520 SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.

A 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
c 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."
D
. The respondent preferred Civil Appeal No. 8322 of 200 l before this
Court whefein 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
E 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
F
commercial production between 1.1.1992 and 31.; 2.1996 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
G 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 the
appeal may be disposed of on equitable consideration by reducing the period
for which concessional tariff could be given to the respondent.
•
H
KERALA ST ATE ELECT_ BO v_ H!TECH ELECTROTifERMTCS AND HYDRO POWER LTO. [SINGH, J_J 521

This Court after examining the Industrial Policy came to the conclusion A
that in tenns of the said Policy the concessional tariff could be .availed of
only by industrial units which started commercial production between
1.1.1992 to 3Ll2.1996. 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 B
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 C
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 D
commercial production by December 31, 1996. lt had also brought to the
notice of tfie 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 E
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 F
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 G
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
H
522 SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.

A 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
B
granting limited relief on equitable consideration.

It was also urged on behalfofthe 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
c 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
D 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
E 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
F
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
G 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
H
KERALASTATEELECT BO r. HJTECHELECTROTHERMICSANDHYDROPOWERLm [SINGH,JJ 523

appreciation of evidence on record is fully within the domain of the appellate A
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
B
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 c
wit~ 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
D
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 E
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. F
D.G. Review petition dismissed.