JUDGMENT M. Katju 1. An application has been filed praying for modification of my Judgment dated 17-6-92. On 24-8-92 I granted two weeks to learned standing counsel to file counter affidavit but no counter affidavit has been filed. In the circumstances I treat the allegations in the affidavit filed along with this application to be correct. 2. The first question which may arise after passing of my judgment dated 17-6-92 is whether I can entertain the present application. A division bench of this Court of which I was a, member, held that even after passing the final judgment this Court does not become functus officio but can pass suitable orders in the interests of justice in connection with the matter in dispute in the writ petition, vide Jitendra Pal v. Committee of Management, Special Appeal No. 159 of 1991. The division bench has relied on an observations of the Supreme Court in M. V. Elizabeth's case, 1992 (2) I. T. 65 (para 68) quoting with approval a passage from Halsbury In the present case I had passed the judgment dated 17-6-92 directing the respondents to dispose of the petitioner's representations dated 20-2-92 and 2-5-92 in which petitioner had prayed for grant of licence for could storage within 6 weeks of production of certified copy of the order. In a supplementary affidavit the petitioner has alleged that the certified copy of my order dated 17-6-92 was submitted to the respondents on 2-7-92. Annexure-1 to the Supplementary Affidavit is a letter of the Director, Horticulture dated 27-7-92 stating that the petitioner could not be granted a licence for the reasons mentioned therein. I have perused the said letter and find it to be wholly arbitrary, hyper-technical, and a typical example of bureaucratic red tape. Before proceeding further I may state the facts as disclosed in the petition The petitioner applied under section 9 of the U. P Regulation of Cold Storages Act, 1976 (hereinafter referred to as the Act) for construction of a cold storage at Jamania, Ghazipur. On 31-8-88 permission to construct the cold storage was granted to him vide Annexnre-1 to the petitioner. The petitioner was sanctioned a loan of Rs. 49.75 lacs from the U. P. Financial Corporation for this purpose, out of which Rs. 31.75 lacs were disbursed. The petitioner also arranged for a further sum of Rs. 16 lacs from other sources. 3. On 31-8-88 permission to construct the cold storage was granted to him vide Annexnre-1 to the petitioner. The petitioner was sanctioned a loan of Rs. 49.75 lacs from the U. P. Financial Corporation for this purpose, out of which Rs. 31.75 lacs were disbursed. The petitioner also arranged for a further sum of Rs. 16 lacs from other sources. 3. It has been alleged in para 4 that petitioner had constructed one chamber and all other requirements of the cold storate including refrigerator, compressor, electric connection, etc. in 1989. Thereafter the petitioner applied for grant of licence under section 6 of the Act. and it is alleged in para 6 of the petition that all requirements were met by the petitioner and the District Horticulture Officer, Ghazipur made all the enquiries in 1990 but detained the petitioner's application. Hence in 1991 the petitioner again applied for issuance of a licence, and it is alleged in para 7 that the District Horticulture Officer, who was the authority who makes the inspection and submits the papers to the Licencing authority. (The Director of Horticulture), was satisfied after inspection of the premises that all requirements under the Act were met and the petitioner was entitled to get the licence. The petitioner also deposited the licence fee. Annexure-2 to the petition is copy of the receipt showing that the deposit was made under the order of the District Horticulture Officer. However, subsequently the petitioner came to know that the District Horticulture Officer did not forward his application to the Licensing authority (respondent No 1). 4. In paras 10 and 11 of the; petition it is alleged that since all effort of the petitioner to get a licence failed in 1991 he again applied in 1992 for grant of a licence under section 6. This was followed by a letter dated 6-2-92 stating that one chamber of the cold Storage of area 10248,.0 sq. m. was ready and the time for storage was approaching. This time the District Horticulture Officer recommended the application, and this recommendation was forwarded by the Deputy Director, Horticulture to the licencing authority (Director, Horticulture) vide his letter dated 19-2-92 (Annexure-3 to the petition). On the direction of the District Horticulture Officer the petitioner deposited Rs 300/- for the year 1992 Photostat, copy of the receipt If Annexure-4. This time the District Horticulture Officer recommended the application, and this recommendation was forwarded by the Deputy Director, Horticulture to the licencing authority (Director, Horticulture) vide his letter dated 19-2-92 (Annexure-3 to the petition). On the direction of the District Horticulture Officer the petitioner deposited Rs 300/- for the year 1992 Photostat, copy of the receipt If Annexure-4. Subsequently on coming to know that there was deficiency of Rs 200/- as licences fee the petitioner deposited this amount also vide Annexure-6 In para 16 of the petition it is alleged that the petitioner has complied with all the requirements of section 6 (2). He submitted an application on 28-2-92 to the licensing authority. True copy of the application is annexure 7. Along with this application the petitioner sent the certificates showing the proper construction of the building and machinery and chasten of deposit of the licence fee. He again prayed for grant of licence for 1992 for the cold storage. 5. On 6-3-92 the Deputy Director wrote a letter to the District Horticulture Officer stating that there were certain defects in respect of the matter (vide Annexure 8 to the petition). Three defects were alleged therein. The first defect alleged was that on the application of the District Horticulture Officer. This was patently an absurd allegation as the letter of the Deputy Director dated 19-2-92 (Annexure-3 to the petition) clearly shows that the District Horticulture Officer had recommended the petitioner's application. Merely because the recommendation was not written on the application but in a separate letter is no ground for ignoring it. The second allegation was that the photo copies annexed to the praposal were not verified. This was clearly not the fault, of the petitioner but of the District Horticulture Officer, as is evident from paragraphs 21 and 31 of the petition. The third allegation related to availability of generator and insurance. In this connection the petitioner has alleged that he had submitted that the certificates, vide paragraphs 21 and 52 to the petition. All these facts have been mentioned in the letter dated 2-5-92 (Anaexure-9). 6. It can thus be seen that tall the allegations in the letter dated 6-3-92 were baseless, and the petitioner was made to suffer unnecessarily in this connection. The authorities have shown utter callousness in the matter. All these facts have been mentioned in the letter dated 2-5-92 (Anaexure-9). 6. It can thus be seen that tall the allegations in the letter dated 6-3-92 were baseless, and the petitioner was made to suffer unnecessarily in this connection. The authorities have shown utter callousness in the matter. The petitioner was granted permission to construct the cold storage in 1988, and he constructed one chamber of 1024.50 sq. m., and the second chamber could not be constructed due to non-issuance of licence under section 6. The letter dated 2 5-92 (Annexure 9 to the petition) is pathetic to read For 3 years the petitioner has not bees granted a licence under section 6 although he has complied with all the formalities required by law. The petitioner has Invested a huge amount of money and has to pay huge Interest on his loan. Surely when he was granted permission to construct the cold storage he had reasonable expectation that he will be granted the licence under section 6 after complying with the legal requirements. In the present case the petitioner has complied with all the legal requirements to get the licence under section 6. and yet he has not yet been given the licence purely due to bureaucratic red-tape or some extraneous consideration After this Court had passed the order dated 17-6-92 It was expected that the authorities will consider the matter seriously and do the needful in the matter. However, the order of the Director Horticulture dated 27-7-92 is a mere repetition of the order of the Deputy Director dated 6-3-92 (Annexure 8 to the petition). I have already observed that the allegations in the order dated 6-3-92 are baseless, and for the same reasons I hold the order of the Director Horticulture dated 27-7-92 is also baseless and arbitrary and it is hereby quashed Since a long time has already expired and the petitioner has suffered a Jot due (to the sheer callousness and boreaucratio attitude of the authorities I issue a mandamus directing the respondent No. 1 to issue a licence to the petitioner under section 6 within a week of production of certified copy of this judgment before him. 7. It is true that ordinarily this Court does not direct a licencing authority to grant a licence as that is the discretion of the licencing authority to be exercised on relevant considerations. 7. It is true that ordinarily this Court does not direct a licencing authority to grant a licence as that is the discretion of the licencing authority to be exercised on relevant considerations. However, in exceptional cases this Court can direct an authority to issue a licence where such a direction is necessary to serve the ends of justice. As held by the Supreme Court in Comptroller and Auditor General v. K. S. Jagannathan, 1986 (2) SCC 679 . "In all such cases, and in any other fit and proper case, a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or public authority, and in a proper case in order to prevent injustice resulting to the concerned parties. the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion" 8. In the present case the licencing authority should have issued a licence to the petitioner, and since it has not done so I hereby direct it to issue the licence under Section 6 to the petitioner within a week of production of certified copy of this order before him. Before parting with this case I would like to make some general comments and express certain ideas which this case has evoked in my mind, and give certain general directions. 9. Today the State of Uttar Pradesh is economically still a backward State while other states In India like Gujarat and Maharashtra, and even small States like Himachal and Goa are rapidly progressing and forging ahead, and one of the Important reasons for this is that there is no business culture in this State. To give an example, whereas applications for licences for setting up industries are rapidly processed and disposed off by the authorities concerned in the latter States, they are not so dealt with in U. P. 10. To give an example, whereas applications for licences for setting up industries are rapidly processed and disposed off by the authorities concerned in the latter States, they are not so dealt with in U. P. 10. In U. P. a businessman may have to wait for years before his application for a licence is cleared (as the petitioner's sorry tale reveals) This has resulted in discouraging industrialists from setting up their industries in U. P. Consequently not only employment opportunities for the people of U. P. are lost but even the government of U. P. becomes a loser because when businessmen go to other States the U. P. government loses revenue in the form of taxes, duties, licence fees, etc. In fact the whole State is thereby a loser, for the only way to eliminate backwardness and feudalism (which are the main evils in our country today is to set up industries and businesses. In other words, it is necessary for us to modernize to solve our problems. In the Pioneer newspaper of 28th August, 1992 and illuminating interview of Mr. Siddhartha Shriram, Chairman of the Confederation of Indian Industries would naturally like to go to the State which offers him the most lucrative terms. To use his 'words "Uttar Pradesh is simply a bad seller. Its successive governments have not been able to sell it to the industrialists." Mr Shriram has mentioned that he is setting up a Rs. 64 crore sugar factory in Muzaffarnagar but although it is a year since the project started taking shape it is still nowhere near completion On the other hand another project of his started almost simultaneously in Madhya Pradesh is about to go into production. This reflects adversely on the U. P. government, particularly since our State has many strengths e. g. massive manpower, a sound agricultural base, plenty of raw materials and natural resources, skilled personnel etc 11. It is unfortunate that there is no business culture in this State as contrasted to Gujarat, Maharashtra. Goa. etc where the authorities encourage people to set up businesses and industries and help them in every way. I am Informed that in Gujrat and Goa if a business man has any genuine difficulty he has only to go to the authorities cencerned, and the latter then take up his problem and try their best to solve it. Goa. etc where the authorities encourage people to set up businesses and industries and help them in every way. I am Informed that in Gujrat and Goa if a business man has any genuine difficulty he has only to go to the authorities cencerned, and the latter then take up his problem and try their best to solve it. On the other band what is the position we find in U.P.? Here if a person sets up a business or industry a horde of 20 or more Inspectors descend upon him-the sales tax inspector, the income tax inspector, the factory inspector, the labour inspector, etc. etc-and all kinds barrasment is done. Is this the way to encourage industry and business ? 12. In my opinion if this State is to progress it must adopt a positive attitude towards business. While those businessmen who do wrong things should certainly be penalised the legitimate businessmen who are carring on an honest livelihood through business should be treated with respect and given a helping hand by the government. All businessmen are not thieves There are good and bad people in every walk of life, and it is not fair to castigate the entire business community for the fault of a few. A legitimate businessman is rendering a valuable service to society, and he is incurring a risk in a venture which may fail. Hence he needs help from the authorities. Business Is a part of life, and business will always be done. A positive attitude towards businessman on the part of the State Government is therefore necessary if the State of U. P. is to prosper and catch up with the more advanced States. This would also be in consonance with the new liberalized policy of the Central Government. The present oppressive regime of controls and regulations (in the form of the licence-permit Raj) should yield to a more pragmatic and positive attitude towards business It is such a positive attitude which has taken States like Gujarat and Maharashtra forward in fact in these States even the public sector enterprises make profits, what to say of the private sector. In an instructive article entitled 'Success story of industrialization' published in the journal 'The Economic Times', Mr. A. Prasad, Managing Director of Gujarat Industrial Investment Corporation, has mentioned about the means adopted by the Gujarat Government to industrialize the State. In an instructive article entitled 'Success story of industrialization' published in the journal 'The Economic Times', Mr. A. Prasad, Managing Director of Gujarat Industrial Investment Corporation, has mentioned about the means adopted by the Gujarat Government to industrialize the State. The U. P. government may be well advised to follow the example of Gujarat. The ideas I have suggested above would be in consonance with our ancient culture too. In the Shantiparva of Mahabharat (Chapter 88, Shlokas 34-38) Bhishma Pitamah tells Yudhisthir. "Upeksbita his nashyeyur gomimo aranya vasinah Tasmaat teshu vishes- hen mridupurvam samacharet" That is "when the king harrasses the businessmen', and ignores their interest, the latter leave his kingdom and go to live in the forest. Hence the king should be specially kind to the businessmen." "Santvanam rakshanam daanamavastha chaapi abhikshanashah Gominam Partha Karravyam Samvibhaagah priyani cha". That is "The king should give assurance to the businessmen, protect them, give them financial help, make arrangements for their welfare, and give them the things of their liking." "AJasram upyoktavyam pholam gomishu sarvatch Prabhavayati rashtram cha vyavaharam Krishim tatba " That is "The businessmen should be given the fruits of their labour, because by doing agriculture and business they make the nation prosper." "Tasmaat gomishu yathnam preetim kuryat vichakshanah Dayavaan Apramattashcha karan sampranayan mridun." That is "Therefore the king should be affectionate to the businessmen, and with care and compassion should impose tolerable tax on them." "Sarvatra kshema cbaranam sulabham taat gomibhih Na hyatah sadri-sham kinchit dhanam asti Yudhiathira" That is "O Yudhishtir : The king should make arrangements that businessmen may move around everywhere safely and comfortably. There is no wealth compared to this for asking." 13. All this seems surprisingly modern, especially when we realize that these words were uttered about 3000 years ago It seems that our ancients had more wisdom in many respects than we have today 14. On taxation Bheeshma says (Chapter 89, Shloka 4) i "Madhu doham duhet rashtram bhramvat na vipaatavet Vatsapekshi duhet chaiva stanaanshcha na vikuttayet". That is "That way a bee takes honey from a flower without damaging it, the way a calf drinks his mother's milk without damaging her udders, in such a manner should the king impose taxes" It is obvious that Bheeshma Pitamah had more far sightedness than many of our leaders today. That is "That way a bee takes honey from a flower without damaging it, the way a calf drinks his mother's milk without damaging her udders, in such a manner should the king impose taxes" It is obvious that Bheeshma Pitamah had more far sightedness than many of our leaders today. His realized that the policy of over taxation is self-defeating, for if the people do rot prosper how can they pay taxes ? 15. In the circumstances I consider it necessary to issue the following directions to the State Government. (1) Every application for setting up an industry or business must be processed and decided within 4 months of the application. (2) Grant of licence should be the general rule, and refusal should be only for exeptional reasons. This, in my opinion, is the correct interpretation of Article 19 (1) (g) read with Art. 19 (6) of the Constitutional If the licence is refused clear reasons roust be given for such refusal, and these reasons must be in writing and must be communicated to the applicant. This is necessary to avoid arbitrariness. (4) The State Government will set up in every region or district a committee or board consisting of representative of the various departments who are involved or have to give clearance for setting up the industry or business (including the building and land) e. g. the financial departments including bodies like U. P Financial Corporation or PICUP) the development authority or Municipal Board or other local authority, the industries department, the environmental authorities, health and safety departments (including pollution control) electricity authorities (the U. P State Electricity Board) etc. A single detailed application giving all his requirements should be made to this committee or Board by a businessman who wishes to set up an industry or business. This will eliminate the present difficulty which industrialist face of running to a dozen departments separately, which takes a long time and causes unnecessary harrassment, and replace it by a more simple efficient and time saving method of a clearance by all the authorises at once The members of this committee or board must be authorised to take decisions without having to refer to higher authorities (except in rarest of cases). These committees must be set up by the State Government within six months from today. These committees must be set up by the State Government within six months from today. This committee or board will thus provide a single-window for all the clearances required, and the entire processing of the application by all the relevant departments must be completed within 4 months of the application. All queries of the representatives of various departments on this committee or board must be drafted under one single format and must be given to the applicant within 3 weeks of the application for licence. The applicant must then reply to these queries within 3 weeks of reciving the format and if he delays in submitting his reply the aforesaid period of 4 months for completing the processing of the application will be extended by the period of delay beyond 3 weeks. (5) The State Government must issue Instruction to public servants to help businessman whenever they are faced with any genuine difficulty. (6) The forms required by the: businessmen (e. g form 3E form 3C, form 31, form 32 etc. under the U. P. Sales Tax Act) must be issued within 36 hours of applying for the same by the relevant authorities without any extraneous demand. Any Official violating this mandamus without good cause should be suspended and charge-sheeted It have been informed that circulars to this effect have been issued by the Commissioner of Sales Tax and these should be strictly complied with. (7) As regards tax holdiday under section 4-A a liberal and positive approach should be taken and the eligibility certificate should not be denied or cancelled on hyper-technical or narrow considerations. The application for exemption under section 4-A must be disposed of within three months from the filing of the application. Delay in disposal of the application results in numerous hardships. If a defect is found in the application then it should not be rejected straightaway but an opportunity should be given by a written notice to the applicant to remove the defects within a specified time, and he must be heard personally on a date fixed before the order is passed. Such a personal hearing must also be .given before disposing off the review application. Such a personal hearing must also be .given before disposing off the review application. (8) If an Industry has been de-licenced by the Central Government then it must also be deemed to be automatically de-licenced by the State Government, and the latter can only require compliance of health and safety regulations Any other interpretation would be arbitrary and unreasonable and hence violative of Article 14 of the Constitution. 16. The above directions to the State Government may amount to judicial legislation. However, it is recognised to day that Judges also legislate. The 19th Century notions of positivist jurists like Bentham and Austin have been replaced in the 20th Century by Sociological jurisprudence which permits legislative activity by the judiciary. In this connection reference may be made to the recent Constitution Bench decision of the Supreme Court in Mrs. Sarojini Ramaswami v. Union of India 1992 (3) JTI. In para 93 of the said decision the following observations of R. S. Pathak, C. J. in Union of India v. Raghubir Singh, 1989 (2) SCC 754 , have been quoted with approval. "It used to be disputed that Judges make law. Today It is no longer a matter of doubt that a substantial volume of the law governing the lives of citizens and regulating the functions of the State Mows from the decisions of the superior courts. 'There was a time' observed Lord Reid, 'when it was thought almost Indecent to suggest that Judges make law they only declare it........But we do not believe in fairy tales any more." Apart from the above mentioned directions (which have to be complied with by all concered authorities) I would also like to make certain non-mandatory recommendations to the State Government which it should consider. These recommendations are : (1) Since almost every industry now-a-days requires electricity, and since the public sector U. P. State Electricity Board does not seem to be in a position to supply enough power, hence private companies should be invited and encouraged to set up power stations for which they should be given suitable incentives Not only production but also distribution of electricity at their own rates and to whom even they desire to supply should be left free to them, otherwise they will not come to U. P. (2) Agrobased industries should be given specially favourable treatment since our State has still largely an agricultural economy. (3) Tax concessions and other (incentives should be given to industrialists and businessmen to attract them to the State. (4) The State Government should send some senior officers to progressive States like Gujarat, Maharashtra, Goa etc. to study the measures taken by the State Governments there to encourage industry and business, and these officers should give a detailed report which should be considered by the U P. Government for doing the needful. (5) The object and scheme of Section 4-A of the U. P. Sales Tax Act is to increase and encourage industrialization and production in U. P. To achieve this object such measures should be taken to make it more effective rather than deny this benefit on technical considerations. Such conditions like requirement of registration under SSI Factories Act etc, are wholly irrelevant for this purpose, and they should be deleted forthwith. (6) Parity with other States imposing lower taxes will encourage industralisation and may even bring greater revenue to the State of U. P. To give an example presently in U. P. Sates Tax on vehicles is 10%, whereas In M. P. it it 5% and in Delhi and Karnatak it is 4%. Hence people prefer to take delivery of their vehicles in these States, and the U. P. Govt. is a loser. 17. With the above observations this application is allowed. The Registrar of this Court is directed to send a copy of this order to the Chief Secretary, U. P. Government at the earliest. The Chief Secretary is directed to send a copy of this order to the Secretaries of the relevant departments e. g. Industries Department, Finance Department, Awas Vikas Department, Sales Tax Department etc and also to the Heads of the local departments and offices concerned with the matter in the State with the instructions that they must strictly comply with the mandatory directions mentioned in this order. Appeal allowed.