B.P. Singh, J. - (1.) This review petition has been preferred by the Kerala State Electricity Board under Article 137 of the Constitution 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 preferred by the respondent herein.
(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 observed :- "We are 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." ;