On 15th November 2022, the Supreme Court in a Division Bench comprising of Justice Ajay Rastogi and Justice C.T. Ravikumar observed that “finding of Division Bench of the HC 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 u/A 226 r/w Order 47 Rule 1 CPC, in our view, does not hold good and is not sustainable in law”. (Kerala State Electricity Board Ltd. & Anr. Vs. Rubfila International Limited & Ors.)
Facts of the Case:
Respondent 1 is an industrial unit which started its commercial production on 26th March, 1995 and the unit was energised on 16th September, 1995. 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. The dispute was whether the respondent is entitled to claim benefit of incentive from the date of commercial production or from date of energisation.
The division bench held that crucial date in terms of the GO is the date of commencement of commercial production. The petition was disposed off with a finding that the date of commercial production is 26th March, 1995 and the claim for concessional tariff for a period up to 16th September, 2000 based on the date of energisation is rejected. A review application was filed by the respondent which was dispose off giving liberty to file a representation before the Board. Against this order, a SLP was filed which was dismissed.
The representation filed before the board was also rejected. In second round of litigation a writ petition was filed by the respondent and aggrieved by the order of the learned single judge of the HC, an appeal was filed before the division bench of HC by the appellant which was dismissed thereafter a review application was filed by the appellant which was also dismissed giving rise to the present appeal.
Contentions of the Appellants:
The counsel for the appellants submitted that “once the parity which was claimed by the respondent 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 has been withdrawn by the appellant Board by order dated 22nd November, 2001 and it was noticed by the Division Bench of the HC at the stage when review application was filed at the instance 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.
As far the Government 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 5 years from the date it started commercial production and in present case, date of commercial production in reference to the respondent admittedly was 26th March, 1995. after the order came to be passed 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 could have been claimed.”
Contentions of the Respondents:
The counsel for the respondents submitted that “even taking note of the order of withdrawal, the respondent was entitled for concessional tariff for 214 days to compensate the period when there was 50% or more power cut, in the manner as extended to M/s Patspin India Ltd., which is indicated in the order dated 22nd November, 2001 relied upon by the Board and the present respondent is also entitled for the extension of concessional tariff to compensate the period of power cut for 214 days.
If the period of commercial production is taken from 26th March, the period which is subsumed within 5 years from the date of commercial production, at least the 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.” The case of S.V.A. Steel Re-Rolling Mills Limited and Others vs. State of Kerala & Others was referred.
Observations and Judgment of the Court:
The hon’ble court observed that “undisputedly, the exemption from enhanced power tariff for 5 years from the date of commencement of commercial production was extended to the respondent. The date of energisation has been considered to be the touchstone for granting exemption from enhanced power tariff for a period of 5 years in terms of GO dated 6th February, 1992 but the very foundation on which the respondent 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 M/s Patspin India Ltd. remained unchallenged and this being the error apparent on the face of record, the finding which has 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 law.”
The present appeals were allowed and the impugned judgment of the HC was set aside.
Case: Kerala State Electricity Board Ltd. & Anr. Vs. Rubfila International Limited & Ors.
Citation: CIVIIL APPEAL NO(s). _ OF 2022 (Arising out of SLP (C) No(s).28366-28367 of 2019)
Bench: Justice Ajay Rastogi and Justice C.T. Ravikumar
Date: November 15, 2022.
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