Important point
If on appreciation of evidence 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 was an error apparent on face of record.

Headnote:Constitution of India—Article 137 —Review—Finding of fact recorded by Supreme Court on basis of appreciation of evidence produced before Court—In a review petition it would not be open to Court to re-appreciate the evidence and reach a different conclusion—Respondent had claimed benefit of industrial policy announced by the State Govt. offering concessional rate of tariff and electricity duty to new industries for 5 years from date of commercial production provided production commenced between 11-1-1992 to 31-12-1996—Respondent did not commence commercial production before specified date but pleaded that it could not be blamed for delay if that was on account of latches and inaction on part of Electricity Board which did not commence supply of electrical energy till October 1998—Supreme Court in appeal filed by respondent considered the question whether respondent could not commence commercial production on account of delay and latches on part of Electricity Board and found it in favour of Respondent—Conclusion could not be assailed in review unless it was show that there was error apparent on face of record—No error apparent on face of record could be pointed out—Review petition was liable to be dismissed.
Held : 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. (Para 10)

Judgment

B.P. Singh, J.—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 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 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 q

Click Here to Read the rest of this document

2005 Supreme(SC) 1024

Important pointIf on appreciation of evidence 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 was an error apparent on face of record.

Important point
If on appreciation of evidence 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 was an error apparent on face of record.