No Negative Equality Can Be Claimed Taking Aid Of Article 14- SC While Allowing Kerala State Electricity Board's Appeal

The Supreme Court while allowing the appeal of the Kerala State Electricity Board observed that no negative equality can be claimed by taking the aid of Article 14 of the Constitution.

The Bench observed, "after the order has been withdrawn in the case of M/s Patspin India Ltd.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, 2001, no negative equality would have been claimed by the respondent taking aid of Article 14 of the Constitution."

The Bench of Justice Ajay Rastogi and Justice C.T. Ravikumar observed that to the extent of seeking parity with another industrial unit i.e., M/s Patspin India Ltd. is concerned, the date of energisation was considered to be the touchstone for granting exemption from enhanced power tariff for a period of 5 years, stands nullified, as it was subsequently withdrawn by the board by order dated November 22nd, 2001.

The Apex Court observed that "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 facts of the case are that 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 5 years regarding payment of an enhanced rate of tariff which came into effect from 1st January 1992. And the Respondent being a new industrial unit claimed the benefit of the GO from the date of energization.

In this case, there were two rounds of litigation and in the first round, the Division Bench of High Court by its order dated January 18th, 2005 held that the crucial date in terms of the GO, is the date of commencement of commercial production. And therefore, the claim of the petitioner for concessional tariff for from date of energistaion cannot be granted.

But in the Second round of litigation the Single Judge decision was upheld by the Division Bench of the High Court by order dated November 22nd, 2018, that the respondent (industrial unit) is also entitled to claim the benefit of 5 years' exemption of enhanced power tariff from the date of energisation as the same benefit was granted by the board to another industrial unit, M/s Patspin India Ltd. from the date of energisation. And it is this decision of the Division Bench of High Court dated November 22nd, 2018 followed by order dated July 29th, 2019 where review application came to be dismissed on the premise that once the benefit was extended, even if withdrawn later, in itself will not affect the finding of the judgment, was challenged before the Apex Court.

The issue dealt with by the Court was-

Whether the respondent (industrial unit) was entitled to claim the benefit of incentive from the date of commercial production or from the date of energization.

Advocate Liz Mathew appeared on behalf of the appellant and submitted that once the parity which was claimed by the respondent (industrial unit) with M/s Patspin India Ltd and the same being withdrawn, there remains no factual foundation on the basis of which the parity by the respondent (industrial unit) could have been claimed.

Advocates Amrendra Kumar Mehta and Nishe Rajen Shonker appeared on behalf of the respondent.

The Apex Court observed that the benefits granted to new Industrial units under its GO has been duly granted to the respondent and what the respondent is asking for, is something that 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, 2001, no negative equality would have been claimed by the respondent taking aid of Article 14 of the Constitution."

Accordingly, the Court allowed the appeals and set aside the impugned order of the High Court.

Cause Title- Kerala State Electricity Board Ltd. & Anr. v. Rubfila International Ltd.

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