{"id":138621,"date":"2006-12-14T00:00:00","date_gmt":"2006-12-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-a-p-steel-re-rolling-mill-vs-state-of-kerala-ors-on-14-december-2006"},"modified":"2019-04-13T21:46:23","modified_gmt":"2019-04-13T16:16:23","slug":"ms-a-p-steel-re-rolling-mill-vs-state-of-kerala-ors-on-14-december-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-a-p-steel-re-rolling-mill-vs-state-of-kerala-ors-on-14-december-2006","title":{"rendered":"M\/S. A.P. Steel Re-Rolling Mill … vs State Of Kerala & Ors. .. … on 14 December, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M\/S. A.P. Steel Re-Rolling Mill … vs State Of Kerala & Ors. .. … on 14 December, 2006<\/div>\n
Author: S Sinha<\/div>\n
Bench: S.B. Sinha, Markandey Katju<\/div>\n
           CASE NO.:\nAppeal (civil)  5814 of 2006\n\nPETITIONER:\nM\/s. A.P. Steel Re-Rolling Mill Ltd.\t\t\t..\tAppellant\n\nRESPONDENT:\nState of Kerala & Ors.\t\t\t\t\t\t..\tRespondents\n\nDATE OF JUDGMENT: 14\/12\/2006\n\nBENCH:\nS.B. Sinha & Markandey Katju\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
(Arising out of S.L.P.(C)Nos.7972-7973 of 2005)
\nWith
\nCIVIL APPEAL NO.    5816                \/2006
\n(Arising out of S.L.P.(C)No.6809 of 2005)
\nM\/s. Victory Papers and Boards India Ltd.\t\t\t..\tAppellant
\nVersus
\nState of Kerala & Ors.\t\t\t\t\t\t..\tRespondents<\/p>\n
S.B. Sinha, J.\n<\/p>\n
\tLeave granted.\n<\/p>\n
\tThese two appeals, involving common questions of fact and law, were
\ntaken up for hearing together and are being disposed of by this common
\njudgment.\n<\/p>\n
\tWe will, however, notice the fact of the matter from M\/s. Victory
\nPapers and Boards India Ltd.’s case.\n<\/p>\n
\tThe State of Kerala adopted an industrial policy in the year 1992 and
\nin the light thereof a notification bearing No.G.O.(MS)No.4\/92\/PD dated
\n6.2.1992, was issued, which reads as under :\n<\/p>\n
“ORDER<\/p>\n
\tIn the light of the statement of Industrial Policy
\napproved for implementation by Government the
\nfollowing incentives in respect of electricity are ordered :\n<\/p>\n
\t1.    New industrial units will be exempted for 5
\nyears from payment of enhanced power tariff which
\ncame into effect on 1.1.92.  This concession will be
\navailable.\n<\/p>\n
i.   to new units from the date of commercial
\nproduction, which start such production between 1.1.92
\nand 31.12.96.\n<\/p>\n
ii.     to manufacturing units only and not to service
\nand entertainment units.\n<\/p>\n
iii.  To existing units for substantial expansion\/
\nmodernization\/diversification the concession in such
\ncases will be available only for the consumption of the
\nnew machinery and equipments which adds to the capital
\nasset, by not less than 25% of the exiting fixed capital
\ninvestment excluding land and building, the installation
\nof which is to be certified by the competent authority.\n<\/p>\n
iv.    for modernization, to industrial units having a
\ncontract demand not exceeding 500 KVA.  In such cases,
\nnew equipments alone will be eligible for the
\nconcession.”\n<\/p>\n
\tThe said industrial policy of the State was accepted by the Kerala
\nState Electricity Board, which is a body constituted and incorporated under
\nthe provisions of the Electricity (Supply) Act, 1948, in respect of which a
\nnotification was issued on 27.3.1992.  By reason of the said notification,
\nsome guidelines were also issued.  The appellant herein contended that
\npursuant to or in furtherance of the representation made by the State of
\nKerala and\/or the  respondent-Board, they altered their position by investing
\na huge amount by setting up factories\/new units.\n<\/p>\n
\tThe State, admittedly, at the district level constituted a ‘Green
\nChannel Clearance Committee’ (GCC).\n<\/p>\n
\tThe appellant had applied for grant of electric power allocation to the
\nextent of 2500 KVA.  It obtained  loan on 19.1.1995.  As the application of
\nthe appellant had not allegedly been processed, GCC issued several
\nreminders to  the Board.  On or about 17.11.1995, Appellant informed the
\nBoard that the project was at an advanced stage.  It was recorded that despite
\nrecommendations by GCC, sanction for grant of electrical connection had
\nnot been issued,  stating :\n<\/p>\n
“We wish to add at this juncture that the Government is
\ninviting entrepreneurs to start their industrial units in the
\nState and are offering Power, Water and other
\ninfrastructural facilities availability so easily.  But on the
\ncontrary the concerned authorities are reluctant to
\nsanction the necessary infrastructural facilities to the
\nunits.  Our case is one of the examples.  Your goodself
\nwill appreciate that without electric power we cannot
\nstart out production as schedule, which will hamper the
\nwork and finally affect the production of the unit.  The
\ndelay in implementing the project will, finally, escalate
\nthe cost of the project.\n<\/p>\n
Since more than one year has lapsed after submitting our
\napplication to the KSEB, we have so far not received
\nsanction of Power to our unit.  Hence we request to your
\ngoodself to kind enough to prevail upon the authority to
\nsanction Electric Power to out unit to the extent of our
\nrequirement.”\n<\/p>\n
\tIt, allegedly, imported machinery from abroad, which fact was
\nintimated to the Board by a letter dated 24th June, 1996, stating :\n<\/p>\n
“Under the circumstances, our Bankers are reluctant to
\nclear term loan because of non-sanctioning of Power to
\nthe Project.  Presently, the total machinery worth Rs.3.5
\nCrore have already arrived at site and the erection is in
\nprogress.  Any further delay in receiving the power
\nallocation will affect our total project which will lead to a
\nfinancial constraint.  It is really unexpected from the
\nauthorities such a situation by the entrepreneur who is
\ntaking initiative to install a factory in Kerala.
\n\tSince we have already invested a huge amount for
\nland, building and machinery, we do not have other
\nalternative other than to complete the project and start
\nproduction at the earliest.\n<\/p>\n
\tWe have informed these facts and figures to the
\nprevious Ministry vide our letter dated 22nd February,
\n1996, addressed to Hon’ble Minister of Electricity.  We
\nare sorry to inform you that so far we have not received
\nany favourable decision.\n<\/p>\n
\tAccording to our schedule, we are planning to start
\nproduction in the month of August, 1996.  Of the huge
\ninvestment of Rs.12.5 crore, 75% of the total cost of the
\nproject has already been invested and any more delay in
\npower allocation will effect our project very seriously.
\n\tTo avoid unnecessary delay in starting the
\nproduction, we need the sanction of power allocation
\nurgently.\n<\/p>\n
\tWe understand that our file is pending with the
\nChief Engineer, World Bank Projects, Vaiduthy
\nBhavanam, Thiruananthapuram and with the Secretary,
\nKerala State Electricity Board, Trivandrum vide No.
\nTSI\/PA\/Victory Paper\/95-96\/3019 dated 7.8.1995.”\n<\/p>\n
\t\t\t\t\t\t\t[Emphasis supplied]
\n\tThe response of the Board thereto is to be found in the letter dated
\n11.2.1997, whereby sanction for power allocation was sought for by the
\nDeputy Chief Engineer from the Chief Engineer of the Board.  Having
\nregard to the fact that there was no adequate transformer capacity at
\nKanjiokode Sub Station, the allocation could not be granted, as was
\ninformed to the appellant by the Board in terms of its letter dated 21.4.1997.
\nElectrical energy was allocated for six months on trial-run basis on
\n24.12.1997 and a final sanction was granted on 21.12.1998.  Appellant
\nstarted commercial production on 10.3.1999.  It  evidently denied the benefit
\nof the said incentive scheme dated 6.2.1992.  A writ petition was filed by the
\nappellant, which has been dismissed by reason of the impugned judgment of
\nthe High Court, inter alia, stating :\n<\/p>\n
“…..The only question to be considered is whether the
\nPetitioner had satisfied the various terms and conditions
\nlaid down in the order dated 6.2.1992.  Facts would
\neloquently show that Petitioner had not satisfied the
\nvarious conditions laid down in the order.  Petitioner
\nmight have submitted an application during the year
\n1994.  Mere submission of application would not be
\nsufficient to hold that Petitioner had complied with all the
\nterms and conditions.  Power allocation was issued by the
\nfourth Respondent on 24.12.1997 with specific condition
\nthat the connection would be effected only after
\nproviding a separate 22 KV feeder with outlet from the
\nsubstation to the factory under OYEC scheme.
\nRespondent could start the work of drawing at 2.8 km of
\n22 KV line only after the Petitioner remitting the OYEC
\namount.  Even though allocation was given on
\n24.12.1997 Petitioner took his own time to remit the
\namount.  Petitioner has taken considerable time to
\ncomplete the work and was not ready for availing power
\nsupply.  Petitioner has produced energization sanction
\norder under Rule 63 of the Indian Electricity Rules 1956
\nfrom the Chief Electrical Inspector only during
\nDecember 1998 even though power allocation was
\nsanctioned on 24.12.1997.  Petitioner had executed the
\nH.T. agreement only on 22.1.1999 and the unit was
\nenergised on 10.3.1999, by the time period fixed for
\nconcessional tariff was already over.  We are of the view,
\next. P1 order of the apex court would not apply to the
\nfacts of this case where power allocation was made from
\nthe year 1991 but the power could not be supplied.
\nHence commercial production could not be started by
\n31.12.1996.  Hence Petitioner had not complied with the
\nformalities so as to get the benefit of the concession
\norders.  The principle of promissory estoppel in the facts
\nand circumstances of the case cannot be put against the
\nBoard.  Above being the factual situation, we are of the
\nview Petitioner is not entitled to get concessional tariff.”\n<\/p>\n
\tSo far as case of M\/s. A.P. Steel Re-Rolling Mill Ltd. is concerned,
\nwe need not go into the factual aspect of the matter.  Suffice it to notice that
\nits writ petition was permitted to withdrawn by the High Court by an order
\ndated 24th November, 2003.  A review application filed by the said appellant
\nwas also dismissed by an order dated 25th May, 2004.  We may, however,
\nnote that an application for grant of electrical connection was filed by it in
\nNovember, 1995 and actual commercial production started in or about
\nOctober, 1998.\n<\/p>\n
\tThe principal contentions which have been raised by Mr. Ranjit
\nKumar and Mr. Venkatararamani, learned Senior counsel appearing on
\nbehalf of the appellants, are : –\n<\/p>\n
       i)\t\tAppellants having altered their position pursuant to or in
\nfurtherance of the representation made by the State of Kerala as also the
\nBoard, the doctrine of promissory estoppel would squarely apply in the
\ninstant cases;\n<\/p>\n
\tii)\tThe High Court committed a manifest error in proceeding on
\nthe premise that the appellants were not entitled to grant of such exemption
\nas they had started commercial production after the period envisaged in the
\nsaid notification;\n<\/p>\n
\tiii)\tThe Board was statutorily obligated to supply electrical energy
\nto the appellant within a reasonable time.\n<\/p>\n
(iv)\tHad electrical energy been supplied to the appellants within a
\nreasonable time, they would have been able to obtain the benefit of the said
\nexemption.\n<\/p>\n
\tMr. Venkataramani added :\n<\/p>\n
(v)\tA concession made by the Counsel on a question of law being not
\nbinding on the client, the High Court should have allowed the application for
\nreview of its earlier order permitting to withdraw its writ petition.\n<\/p>\n
\tMr. M.T. George, learned Counsel appearing on behalf of the Board,
\non the other hand, would urge that the appellants themselves were guilty of
\nserious delay and latches on their part in complying with the statutory
\nrequirements and thus, it is idle to put the blame on the Board. It was
\nsubmitted that the language of the notification dated 6.2.1992 being clear
\nand explicit, the same does not envisage grant of any benefit beyond
\n31.12.1996.\n<\/p>\n
\tBefore adverting to the rival contentions raised on behalf of the
\nparties, we may notice that construction of the notification in question came
\nup for consideration before a Bench of this Court in Hitech Electrothermics
\n& Hydropower Ltd. vs. State of Kerala & Ors.<\/a> [(2003) 2 SCC 716],
\nwherein this Court opined :\n<\/p>\n
\t“On a perusal of the industrial policy of the
\ngovernment, unequivocally indicting that concessional
\ntariff rate would be given as well as the order of the
\nElectricity Board adopting the same, it can be safely held
\nthat such concession could be availed of by the industrial
\nunits for a period of five years from the date, they start
\nsuch production between 1.1.1992 and 31.12.1996. In
\nthis context the stand of the Board as well as the State
\nGovernment cannot be held to be devoid of any
\nsubstance when admittedly the commercial production of
\nthe appellant’s unit did not start till 31.12.1996. But the
\nquestion for consideration is when the government has
\nitself come forward alluring industrial units to set up their
\nindustries and when under the provisions of the
\nElectricity Act, every consumer has the right to get the
\nsupply of power and in the case in hand, when power
\nallocation has been made in favour of the appellant as
\nearly as in 1995, and yet the same power could not be
\nsupplied for such non-supply of power, the commercial
\nproduction could not start by 31.12.1996, would it at all
\nbe equitable to deny the relief to the appellant by giving a
\nliteral interpretation to the incentive scheme of the
\ngovernment as adopted by the Board? Our answer to this
\nquestion must be in the negative. There are several
\ndocuments on record, which were produced before us to
\nindicate that the appellant has been communicating with
\nthe Board, seeking power connection at an early date so
\nthat it would be able to start commercial production by
\n31.12.1996. In making such communication, the
\nappellant has been bringing it to the notice of the Board
\nbut for supply, the appellant has made all other
\narrangements to set the production, but yet there has been
\ninaction on the part of the Board in providing power to
\nthe appellant. Mr. Rohatgi, appearing for the Board no
\ndoubt brought to our notice a letter from the appellant to
\nthe Board and contended that it could not have been
\npossible for the appellant to start production by 31.12.96
\nbut we are unable to accept this submission nor are we
\nmaking deeper probe into the matter. Suffice it to say that
\nthe appellant has been denied power supply by the Board
\nin appropriate time, which has prevented the appellant
\nfrom starting the commercial production by 31.12.1996.
\nThis being the position, and having regard to the gamut
\nof the circumstances, starting from the government
\npolicy resolution and culminating in setting up of the
\nfactory by the appellant in Kerala and commencing the
\nproduction of ferro alloys, though not by 31.12.1996, we
\nare of the considered opinion that granting the
\nconcessional tariff for a period of three years instead of
\nfive years, as indicated in the policy resolution would
\nmeet the ends of justice and we, accordingly, so direct.”\n<\/p>\n
\tA review application filed by the Kerala State Electricity Board, in the
\nsaid matter again fell for consideration of this Court in Kerala State
\nElectricity Board vs. Hitech Electrothermics & Hydropower Ltd. &
\nOrs.<\/a> [(2005) 6 SCC 651].  The said review application was dismissed,
\nstating :\n<\/p>\n
\t“This Court has referred to several documents on
\nrecord and also considered the documentary evidence
\nbrought on record.  This Court on a consideration of the
\nevidence on record concluded that the respondent had
\nbeen denied power supply by the Board in appropriate
\ntime which prevented the respondent from starting the
\ncommercial production by 31.12.1996.  This is a finding
\nof fact recorded by this Court on the basis of the
\nappreciation of evidence produced before the Court.  In a
\nreview petition it is not open to this Court to re-
\nappreciate the evidence and reach a different conclusion,
\neven if that is possible.  Learned counsel for the Board at
\nbest sought to impress us that the correspondence
\nexchanged between the parties did not support the
\nconclusion reached by this Court.  We are afraid such a
\nsubmission cannot be permitted to be advanced in a
\nreview petition.  The appreciation of evidence on record
\nis fully within the domain of the appellate court.  If on
\nappreciation of the evidence produced, the Court records
\na finding of fact and reaches a conclusion, that
\nconclusion cannot be assailed in a review petition unless
\nit is shown that there is an error apparent on the face of
\nthe record or for some reason akin thereto.  It has not
\nbeen contended before us that there is any error apparent
\non the face of the record. To permit the review petitioner
\nto argue on a question of appreciation of evidence would
\namount to converting a review petition into an appeal in
\ndisguise.”\n<\/p>\n
\tApplicability of doctrine of promissory estoppel in a case where
\nentrepreneur alters his position pursuant to or in furtherance of a promise
\nmade by the State to grant exemption from payment of charges on the basis
\nof current tariff is not in dispute.  The State made its policy decision.  The
\nsaid policy decision could be made by the State in exercise of its power
\nunder Section 78A of the Electricity (Supply) Act, 1948.  The Electricity
\nBoard framed tariff for supply of electrical energy in terms of Sections 46
\nand 49 of the 1948 Act.  While framing its tariff, the Board could take into
\nconsideration the policy decision of the State.\n<\/p>\n
\tIt was, therefore, permissible both for the State to issue a policy
\ndecision and for the Board to adopt the same in exercise of their respective
\nstatutory powers under the 1948 Act.\n<\/p>\n
\tWhen a beneficent scheme is made by the State, the doctrine of
\npromissory estoppel would undoubtedly apply.\n<\/p>\n
\tIn Union of India & Ors. vs. M\/s. Indo-Afgan Agencies Ltd.<\/a>
\n[(1968) 2 SCR 366], this Court opined :\n<\/p>\n
\t“We hold that the claim of the respondents is
\nappropriately founded upon the equity which arises in
\ntheir favour\tas a result of the representation made on
\nbehalf of the Union of India in the Export Promotion
\nScheme, and the action taken by the respondents acting
\nupon\tthat representation under the belief that the
\nGovernment would carry out the representation made by
\nit.  On the facts proved in this case, no ground has been
\nsuggested before the Court for exempting the
\nGovernment from the equity arising out of the acts done
\nby the exporters to their prejudice relying upon the
\nrepresentation”\n<\/p>\n
\tIn M\/s. Motilal Padampat Sugar Mills Co. Ltd. vs. State of Uttar
\nPradesh & Ors.<\/a> [(1979) 2 SCC 409], this Court rejected the plea of the
\nState to the effect that in the absence of any notification issued under Section
\n4-A of the U.P. Sales Tax Act, the State was entitled to enforce the liability
\nto sales tax imposed on the petitioners thereof under the provisions of the
\nSales Tax Act and there could be no promissory estoppel against the State so
\nas to inhibit it from formulating and implementing its policy in public
\ninterest.\n<\/p>\n
 \tThe question came up for consideration before this Court also in
\nPournami Oil Mills & Ors. vs. State of Kerala & Anr.<\/a> [1986 (Supp) SCC
\n728], wherein it was held:\n<\/p>\n
“Under the order dated April 11, 1979, new small scale
\nunits were invited to set up their industries in the State of
\nKerala and with a view to boosting of industrialisation,
\nexemption from sales tax and purchase tax for a period of
\nfive years was extended as a concession and the five-year
\nperiod was to run from the date of commencement of
\nproduction. If in response to such an order and in
\nconsideration of the concession made available,
\npromoters of any small scale concern have set up their
\nindustries within the State of Kerala, they would certainly
\nbe entitled to plead the rule of estoppel in their favour
\nwhen the State of Kerala purports to act differently.
\nSeveral decisions of this Court were cited in support of
\nthe stand of the appellants that in similar circumstances
\nthe plea of estoppel can be and has been applied and the
\nleading authority on this point is the case of M.P. Sugar
\nMills. On the other hand, reliance has been placed on
\nbehalf of the State on a judgment of this Court in Bakul
\nCashew Co. v. STO. In Bakul Cashew Co. case this
\nCourt found that there was no clear material to show any
\ndefinite or certain promise had been made by the
\nMinister to the concerned persons and there was no clear
\nmaterial also in support of the stand that the parties had
\naltered their position by acting upon the representations
\nand suffered any prejudice. On facts, therefore, no case
\nfor raising the plea of estoppel was held to have been
\nmade out. This Court proceeded on the footing that the
\nnotification granting exemption retrospectively was not
\nin accordance with Section 10 of the State Sales Tax Act
\nas it then stood, as there was no power to grant
\nexemption retrospectively. By an amendment that power
\nhas been subsequently conferred. In these appeals there is
\nno question of retrospective exemption. We also find that
\nno reference was made by the High Court to the decision
\nin M.P. Sugar Mills’ case. In our view, to the facts of the
\npresent case, the ratio of M.P. Sugar Mills’ case directly
\napplies and the plea of estoppel is unanswerable.”\n<\/p>\n
 \tYet again in Assistant Commissioner of Commercial Taxes (Asst.)
\nDharwar & Ors. vs. Dharmendra Trading Company & Ors.<\/a> [(1988) 3
\nSCC 570], this Court, on the factual matrix obtaining therein, rejected the
\ncontention of the State that any misuse of the concessions granted was
\ncommitted by the respondent therein and thus the State cannot go back on its
\npromise.\n<\/p>\n
\tIt was further observed:\n<\/p>\n
“The next submission of learned counsel for the
\nappellants was that the concessions granted by the said
\norder dated 30-6-1969 were of no legal effect as there is
\nno statutory provision under which such concessions
\ncould be granted and the order of 30-6-1969 was ultra
\nvires and bad in law. We totally fail to see how an
\nAssistant Commissioner or Deputy Commissioner of
\nSales Tax who are functionaries of a State can say that a
\nconcession granted by the State itself was beyond the
\npowers of the State or how the State can say so either.
\nMoreover, if the said argument of learned counsel is
\ncorrect, the result would be that even the second order of
\n12-1-1977 would be equally invalid as it also grants
\nconcessions by way of refunds, although in a more
\nlimited manner and that is not even the case of the
\nappellants.”\n<\/p>\n
 \tMangalore Chemicals and Fertilisers Limited vs. Deputy
\nCommissioner of Commercial Taxes & Ors.<\/a> [1992 Supp (1) SCC 21] is a
\ncase where this Court had the occasion to consider as to whether subsequent
\nchange  in the eligibility criteria can undo the eligibility for the condition
\nstipulated in the earlier notification and answered the same in the negative.\n<\/p>\n
 \tThis Court reaffirmed the legal position in Pawan Alloys & Casting
\nPvt. Ltd., Meerut vs. U.P. State Electricity Board & Ors.<\/a> [(1997) 7 SCC
\n251], holding:\n<\/p>\n
“As a result of the aforesaid discussion on these points
\nthe conclusion becomes inevitable that the appellants are
\nentitled to succeed. It must be held that the impugned
\nnotification of 31-7-1986 will have no adverse effect on
\nthe right of the appellant-new industries to get the
\ndevelopment rebate of 10% for the unexpired period of
\nthree years from the respective dates of commencement
\nof electricity supply at their units from the Board with
\neffect from 1-8-1986 onwards till the entire three years’
\nperiod for each of them got exhausted. This result
\nlogically follows for the appellants who have admittedly
\nentered into supply agreements with the Board as new
\nindustries prior to 1-8-1986.”\n<\/p>\n
\tThe question yet again came up for consideration before this Court
\nrecently in State of Punjab vs. Nestle India Ltd. & Anr.<\/a> [(2004) 6 SCC
\n465], wherein this Court surveyed the growth of the said doctrine and held
\nthe doctrine to be applicable to legislative action also.\n<\/p>\n
\tIn Jai Narain Parasurampuria (Dead) & Ors vs. Pushpa Devi
\nSaraf & Ors.<\/a> [(2006) 7 SCC 756], this Court held :\n<\/p>\n
\t“The doctrine of estoppel by acquiescence was not
\nrestricted to cases where the representor was aware both
\nof what his strict rights were and that the representee was
\nacting on the belief that those rights would not be
\nenforced against him.  Instead, the court was required to
\nascertain whether in the particular circumstances, it
\nwould be unconscionable for a party to be permitted to
\ndeny that which, knowingly or unknowingly, he had
\nallowed or encouraged another to assume to his
\ndetriment.  Accordingly, the principle would apply if at
\nthe time the expectation was encouraged”\n<\/p>\n
\tIn Shrijee Sales Corporation & Anr. vs. Union of India<\/a> [(1997) 3
\nSCC 398], this Court referring to Motilal Padampat (supra), it was stated :\n<\/p>\n
\t“Two propositions follow from the above analysis:\n<\/p>\n
\t(1) The determination of applicability of
\npromissory estoppel against public authority\/Government
\nhinges upon balance of equity or “public interest”.
\n\t(2) It is the Court which has to determine whether
\nthe Government should be held exempt from the liability
\nof the “promise” or “representation”.\n<\/p>\n
In the present case, the first Notification exempting the
\ncustoms duty on PVC itself recites “….Central
\nGovernment being satisfied that it is necessary in public
\ninterest to do so…”.  In the Notification issued later
\nwhich gave rise to the present cause of action, the same
\nrecitation is present.”\n<\/p>\n
\tAn exemption notification, however, can be withdrawn only if it is
\npermissible to do so in public interest.\n<\/p>\n
\tYet again, in Dr. Ashok Kumar Maheshwari vs. State of U.P. &
\nAnr.<\/a> [(1998) 2 SCC 502], it was held :\n<\/p>\n
\t“There are many aspects of “Promissory Estoppel”,
\nbut in the instant case we are concerned only with one
\naspect which is to the effect that if any “promise” has
\nbeen made contrary to law, can it still be enforced by
\ninvoking this rule.\n<\/p>\n
\tThe basic principle is that the plea of estoppel
\ncannot be raised to defeat the provisions of a Statute.
\n(See: G.H.C. Ariff v. Jadunath Majumdar Bahadur;
\nMathra Parshad & Sons v. State of Punjab and Ors.<\/a>;
\nRishabh Kumar & Sons v. State of U.P.)<\/p>\n
\tThis<\/a> principle was reiterated in Union of India v.
\nR.C. D’Souza,<\/a> where a retired army officer was recruited
\nas Assistant Commandant on temporary basis and was
\ncalled upon to exercise his option for regularisation
\ncontrary to the statutory rules. It was held that it would
\nnot amount to estoppel against the Department.\n<\/p>\n
\tWhether a Promissory Estoppel, which is based on
\na ‘promise’ contrary to law can be invoked has already
\nbeen considered by this Court in Kasinka Trading and
\nAnr. v. Union of India and Ors., as also in Shabi
\nConstruction Co. Ltd v. City & Industrial Development
\nCorporation and Anr.<\/a> wherein it is laid down that the
\nRule of “Promissory Estoppel” cannot be invoked for the
\nenforcement of a “promise” or a “declaration” which is
\ncontrary to law or outside the authority or power of the
\nGovernment or the person making that promise.”\n<\/p>\n
{See also M\/s. Ashoka Smokeless Coal Ind. P. Ltd. & Ors. vs. Union of
\nIndia & Ors.<\/a> [Civil Appeal No.5302 of 2006 @ SLP(C)No.20471 of 2005
\nand batch, disposed of on 1st December, 2006].}<\/p>\n
\tWe may notice that a somewhat different view viz. strict construction
\nof such notification was advocated in the case of State Level Committee &
\nAnr. vs. Morgardshammar India Ltd.<\/a> [(1996) 1 SCC 108], wherein, B.P.
\nJeevan Reddy, J., referring to CCE vs. Parle Exports (P) Ltd. [(1989) 1
\nSCC 345], opined :\n<\/p>\n
\t“We agree with the above statement of law except
\ninsofar as it states that where two views of the exemption
\nnotification are possible, it should be construed in favour
\nof the subject since it is contrary to the decisions afore-
\nmentioned including the three-Judge Bench decision in
\nNovopan India Ltd.  It may be noted that this decision
\nwas referred to in Mangalore Chemicals and Fertilizers
\nand yet a slightly different principle enunciated. So far as
\ndecision in Hindustan Aluminium Corporation (referred
\nto in Parle Export), rendered by a Bench comprising
\nTulzapurkar and R.S. Pathak, JJ., is concerned, it only
\nholds that the expression “metal” occurring in a
\nnotification issued under U.P. Sales Tax Act should be
\nunderstood in its primary sense, i.e., in the form in which
\nit is marketable as a primary commodity. The learned
\nJudges held that the subsequent forms evolved from the
\nprimary form constituted distinct commodities
\nmarketable as such and must be regarded as new
\ncommercial commodities and not included within the
\nfour corners of the notification. This decision cannot
\ntherefor be understood as supporting the proposition
\nenunciated in Parle Exports with which we have
\ndisagreed. Be that as it may, the occasion for applying
\nthe said proposition arises only where there is “real
\ndifficulty, in ascertaining the meaning of a particular
\nenactment” (statement in Parle Exports). In the case
\nbefore us, there is neither any ambiguity in the language
\nnor does the clause in question present a real difficulty in
\nascertaining its meaning.”\n<\/p>\n
\tWe may, however, also notice that in Southern Ispat Ltd. vs. State
\nof Kerala & Ors.<\/a> [(2004) 4 SCC 68], this Court took somewhat different
\nview then Hitech Electrothermics & Hydropower Ltd. vs. State of
\nKerala & Ors.<\/a> [(2003) 2 SCC 716], stating :\n<\/p>\n
\t“As the Division Bench rightly pointed out, the
\nquestion to be decided in this case is essentially a
\nquestion of fact, namely, whether the appellant had
\nstarted ‘commercial production’ between 1.1.1992 and
\n31.12.1996 so as to be entitled to power supply at
\nconcessional tariff rates. As a rule, it is not the practice of
\nthis Court to interfere with factual findings which have
\nbeen concurrently recorded by two courts below. Both
\nthe learned single Judge and Division Bench have
\nconcurrently answered all factual findings against the
\nappellant. On that ground itself the appellant must fail.
\nNonetheless, as the appeal was argued with some
\nseriousness, we propose to deal with the facts and
\nexamine the factual findings only from the point of view
\nof interference under our special jurisdiction under
\nArticle 136.\n<\/p>\n
\tThe Division Bench of the High Court rightly
\npointed out that though the policy of granting
\nconcessional tariff was announced by the State
\nGovernment on 6.2.1992; followed by the KSEB order
\ndated 27.3.1992, the appellant did nothing till or about
\nJune 1995. It is only in June 1995 that the appellant
\ncompany was incorporated and an application for power
\nallocation was made on 17.7.1995. The appellant’s
\nfactory had yet to be constructed and machinery to be
\ntransported and installed after the construction of the
\nfactory building. Undoubtedly, the application was
\nmoved on 17.7.1995 in anticipation. The material on
\nrecord suggests that there was acute shortage of
\nelectricity as a result of which even domestic power
\nconnections were being refused. The high tension power
\nsupply required by the appellant had to be specially
\narranged by drawing the electrical lines on OYEC basis
\nby construction of PSC polls along the line at the
\nAppellant’s cost. This amount was deposited on
\n11.12.1996, only a few days before the concession was
\nabout to lapse. Having examined the correspondence on
\nrecord, we are not in a position to accept the contention
\nof the appellant that the respondents had acted with
\nundue tardiness or lethargy. Further, the remittances of
\nRs.8,54,700\/- and Rs.3,45,200\/- made by way of security
\ndeposit for executing the power supply agreement were
\nactually made on 1.2.1997 and 4.2.1997, after the expiry
\nof the period of concession.”\n<\/p>\n
\tThe general principles with regard to construction of exemption
\nnotification are not of much dispute.  Generally, an exemption notification is
\nto be construed strictly, but once it is found that the entrepreneur fulfils the
\nconditions laid down therein, liberal construction would be made.\n<\/p>\n
\tIn M\/s. O.N.G.C. Ltd. vs. Commnr. Of Customs, Mumbai<\/a> [(2006)
\n8 SCALE 551], this Court held :\n<\/p>\n
\t“This Court, times without number, has construed
\nsuch exemption notifications in liberal manner.  [See
\nCommissioner of Customs (Imports), Mumbai v. Tullow
\nIndia Operations Ltd.,<\/a> (2005) 13 SCC 789, [See Tata
\nIron & Steel Co. Ltd. v. State of Jharkhand and Others,<\/a>
\n(2005) 4 SCC 272, Government of India and Ors. v.
\nIndian Tobacco Association,<\/a> (2005) 7 SCC 396,
\nCommnr. Of Central Excise, Raipur v. Hira Cement, JT<\/a>
\n2006 (2) SC 369. and P.R. Prabhakar v. Commnr. Of
\nIncome Tax, Coimbatore,<\/a> 2006 (7) SCALE 191].  If,
\nthus, the Appellant was entitled to the same, it should not
\nbe denied the benefits thereof.  It is directed
\naccordingly.”\n<\/p>\n
\tA question as to whether, in a given situation, an entrepreneur was
\nentitled to the benefit under an exemption notification or not, thus, would
\ndepend upon the fact of each case.  A bare perusal of the notification dated
\n6.2.1992 issued by the 1st respondent would show that the purport and object
\nthereof was to grant benefit of a concessional power tariff which came into
\nforce on and from 1.1.1992.  The phraseology used in the said notification
\npostulates that the benefit was to be granted in regard to the ‘enhanced
\npower tariff’.  Thus, where the new units had started production between
\n1.1.1992 and 31.12.1992, such exemption was available to the entrepreneurs.\n<\/p>\n
\tEvidently, except in a situation as might have been existing in Hitech
\nElectrothermics (supra) that any application filed by the entrepreneur had
\nnot been processed within a reasonable time, in which case benefit might not
\nbe denied on equitable ground; in cases where there has been a substantial
\nfailure on the part of the industrial unit to obtain such benefit owing to acts
\nof omission and commission on its part, in our opinion, no such benefit can
\nbe given.\n<\/p>\n
\tThe High Court has arrived at a finding of fact that the appellant
\nherein had failed and\/or neglected to comply with the terms and conditions
\nof the scheme or contributed to a large extent in not being able to obtain
\nsuch sanction within a reasonable time.\n<\/p>\n
\tThe appellant applied for grant of electrical connection on 9.11.1994.
\nIt, however, on its own showing did not receive any sanction till 17.11.1995.
\nBut even on that date the project was not complete.  It was only at an
\nadvanced stage.\n<\/p>\n
\tFrom the appellant’s letter dated 24th June, 1996, as noticed supra, it
\nwould appear that it merely had been complaining of about non-grant of
\nsanction, but then, evidently, it was not ready for commencing commercial
\nproduction.  Machineries were obtained by it only on 4.6.1996.  How much
\ntime was taken for installation of machinery and completion of  the project,
\nis not known.\n<\/p>\n
\tSanction, evidently, had been allocated on 24.2.1997.  It accepted the
\nsame without any demur.    It had been making payments in terms of the new
\ntariff.  It filed the writ petition only in the year 2003, i.e., only after this
\nCourt rendered its decision in Hitech Electrothermics (supra) on 17th
\nDecember, 2002.\n<\/p>\n
\tThe benefit of a judgment is not extended to a case automatically.
\nWhile granting relief in a writ petition, the High Court is entitled to consider
\nthe fact situation obtaining in each case including the conduct of the
\npetitioner.  In doing so, the Court is entitled to take into consideration the
\nfact as to whether the writ petitioner had chosen to sit over the matter and
\nthen wake up after the decision of this Court.  If it is found that the appellant
\napproached the Court after a long delay, the same may disentitle him to
\nobtain a discretionary relief.   {See Chairman, U.P. Jal Nigam & Anr. vs.
\nJaswant Singh & Anr.<\/a> [2006 (12) SCALE 347].}  <\/p>\n
\tWe are, thus,  of the opinion that the principle of promissory estoppel
\nwill apply where an entrepreneur has altered its position pursuant to a
\npromise made by the State, but the application thereof would depend upon
\nthe facts and circumstances of each case.  Having regard to the findings of
\nfact arrived at by the High Court, we are of the opinion that it cannot be said
\nto have committed any illegality in passing the impugned judgment.\n<\/p>\n
\tSo far as the case of M\/s. A.P. Steel Re-Rolling Mill Ltd. is
\nconcerned, evidently the question involved therein was a disputed question
\nof fact.  Although, the High Court could have entertained a writ petition, as
\nhas been done in the case of M\/s. Victory Papers and Boards India Ltd., but
\nas M\/s. A.P. Steel Re-Rolling Mill Ltd. withdrew its writ application, in our
\nour opinion, no case has been made out for interference with the impugned
\njudgment.  As the appellant has still its remedies open, it may avail the same.\n<\/p>\n
\tFor the reasons aforementioned, there is no merit in these appeals
\nwhich are dismissed accordingly.  However, in the facts and circumstances
\nof the case, there shall be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M\/S. A.P. Steel Re-Rolling Mill … vs State Of Kerala & Ors. .. … on 14 December, 2006 Author: S Sinha Bench: S.B. Sinha, Markandey Katju CASE NO.: Appeal (civil) 5814 of 2006 PETITIONER: M\/s. A.P. Steel Re-Rolling Mill Ltd. .. Appellant RESPONDENT: State of Kerala & Ors. .. Respondents DATE […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-138621","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM\/S. A.P. 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