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2003 DIGILAW 1161 (JHR)

Kali Agro Chemicals Ltd. v. State Of Jharkhand

2003-09-16

P.K.BALASUBRAMANYAN, R.K.MERATHIA

body2003
ORDER 1. Heard counsel for the petitioner and GP-III for the respondents. 2. The petitioner claimed the benefit of S.O. 479 issued under the Industrial Policy, 1995 as modified by S.O. 58. The question that arose was whether the petitioner was qualified for the benefit conferred by the said Order. The matter had earlier come to this Court in WP(T) No. 441 of 2002 and this Court by way of an interim direction, directed the Commissioner of Commercial Taxes to take a decision on the claim. Subsequently, the Commissioner of Commercial Taxes passed an order, more or less remanding the proceeding to the Assistant Commissioner, Commercial Taxes to dispose of the matter, in accordance with law. Some of the arguments raised, in our view, were answered while making the remand. Therefore, the writ petition was disposed of by this Court in the light of the order passed by Commissioner of Commercial Taxes. 3. Therefore, the Assistant Commissioner, Commercial Taxes and order Annexure 4, forwarding the proceedings to the Joint Commissioner, Commercial Taxes (Administration) as contemplated by Clause 18 of S.O. 479 dated 22.12.1995. The Joint Commissioner, Commercial Taxes (Administration) passed the impugned order, Annexure 5, rejecting the claim of the petitioner. The petitioner has, thereupon, approached this Court again with the present writ petition, challenging the decision of the Joint Commissioner. The petitioner also seeks to challenged the demand raised on rejection of its claim for the benefit of S.O. 479. 4. The main contention urged on behalf of the petitioner is, that the Joint Commissioner, Commercial Taxes rejected the claim of the petitioner without affording to it, an opportunity of being heard. Learned Government Pleader appearing for the respondent, by referring to S.O. 479 and Clause 18 thereof, tried to argue that no hearing by the Joint Commissioner is contemplated. But, after all, a claim for benefit under S.O. 479, as modified by S.O. 58, is being made by the petitioner. Unless the Notification clearly precludes the application of the principles of natural justice, we feel that the petitioner should be given an opportunity of being heard, considering the nature of the claim and the consequences that will flow from the decision to be rendered by the Joint Commissioner. Therefore, we are not inclined to accept the argument of learned Government Pleader that no opportunity of hearing needs be given by the Joint Commissioner. Therefore, we are not inclined to accept the argument of learned Government Pleader that no opportunity of hearing needs be given by the Joint Commissioner. Of course, in paragraph 15 of counter affidavit, though the respondents have adopted the stand that no hearing was necessary, it is also indicated that if this Court directs that the petitioner should be heard, there will be no difficulty for giving the petitioner an opportunity of being heard. 5. In view of the fact that the petitioner has not been heard, we feel that the petitioner should be given an opportunity of being heard by the Joint Commissioner, Commercial Taxes (Administration) before taking a final decision on the claim of the petitioner. We are not inclined to enter into a discussion of the various aspects, sought to be raised before us, but we think it necessary to clarify the position that the authority will have to consider whether the conditions of S.O. 473 and S.O. 58 are fulfiled by the petitioner while deciding the claim for benefit put forward by petitioner. We think it necessary to draw the attention of the Joint Commissioner to the two decisions rendered by this Court in the matter of S.O. 479 and S.O. 58, namely, in W.P.(T) No. 2587 of 2003 (Tata Commins Ltd. and Ors. v. State of Jarkhand and Ors.) and in W.P.(T) No. 6568 of 2002 (Mittal Polypacks Pvt. Ltd. v. State of Jharkhand and Ors.). Similarly the decisions relied on by the petitioner have also to be adverted to and considered. We also think it necessary to clarify that if there is anything in the order, Annexure-2, passed by the Commission, while remanding the matter, that goes against the ratio of the above two decisions or any decision that may be brought to his notice, the same will not be binding on the S.O. 479 while he takes a fresh decision on the claim of the petitioner after considering all the relevant aspects involved. In other words, we clarify that there will be no finality attached to any observation made in the order Annexure-2. 6. In other words, we clarify that there will be no finality attached to any observation made in the order Annexure-2. 6. Thus, we allow this writ petition only on the ground that the order, Annexure-5, was passed without hearing the petitioner and quash that order and direct the Joint Commissioner, Commercial Taxes (Administration) Santhal Parganas Division, Dumka to pass a fresh order, in accordance with law, and in the light of the observations made above, after giving the petitioner an opportunity of being heard to substantiate its claim that it is entitled to the benefits of S.O. 479 and S.O. 58. The Joint Commissioner of Commercial Taxes (Administration) will dispose of the matter as expeditiously as possible and preferably within a period of three months from the date of receipt of a copy of this judgment.