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2003 DIGILAW 367 (JK)

Hindustan Coca-Cola Beverages Pvt. Ltd. v. State Of J&K & 4 Ors.

2003-11-28

S.K.GUPTA

body2003
By means of this application, the applicant/petitioner seeks leave to amend the writ petition by bringing on record certain events, which have taken place after the filing of the writ petition, so as to enable the real question in issue between the parties to be raised on the pleadings. The applicant/petitioner claims to be entitled to the benefit of Sales Tax exemption under SRO-247 dated 20-8-1998. The applicant/petitioner, however, seeks to challenge the validity of the notification SRO-171 dated 28-05-2003, which amended the earlier SRO-247 and lays down that the benefit of exemption, which the applicant/petitioner is availing till 11-1-2007, shall be limited and restricted up to 30-9-2003. According to the applicant/petitioner, this is another attempt made by the Government to decline the benefit of exemption from General Sales Tax and Central Sales Tax, notwithstanding the entitlement of the applicant/petitioner to continue to avail such exemption up to 11-1-2007, on the strength of Notification SRO-247 dated 20-8-1998 in conjunction with the new Industrial Policy of the Government. It is stated that the applicant/petitioner had acquired a bottling unit by making an investment of Rs. 18 crores. That the Unit was substantially expanded thereafter, so as to make it a "Prestigious Unit" and to qualify for the benefit of 100% exemption from General Sales Tax and Central Sales Tax for a period of five years up to 11-1-2007. By the proposed amendment, the petitioner seeks to challenge Notification SRO-171, dated 28-5-2003, for having occasioned a grave and serious prejudice and irreparable loss to the applicant/petitioner. Further plea put across by the applicant is that unless applicant/petitioner continues to avail the exemption up to 11-1-2007, it will not be possible to enable it to absorb the full benefit of the Sales Tax Exemption, to the extent of 150% of the capital investment made by it in establishing the "Prestigious Unit". According to the applicant/petitioner, the amendment is necessary for the purpose of determining the real question in issue between the parties and to avoid multiplicity of the litigation. (2). In resisting the prayer of the applicant/petitioner for allowing the amendment in the writ petition, the non-applicants in their reply submitted that Industrial Policy announced by the Government in the year 1998 was slated to expire on 31st of March, 2003. (2). In resisting the prayer of the applicant/petitioner for allowing the amendment in the writ petition, the non-applicants in their reply submitted that Industrial Policy announced by the Government in the year 1998 was slated to expire on 31st of March, 2003. That the new Industrial Policy of the State is yet to be finalized and the Government has decided to continue the existing Policy till 30th September, 2003 or till the new Policy is announced. This is stated to have been reflected in SRO-171 dated 28-5-2003 pertaining to the matter covered by the said SRO. Further contention of the non-applicants is that in the event of applicant aggrieved by SRO-171, it gives rise to fresh cause of action, for which a fresh writ petition is required to be filed and cannot be agitated in the present writ petition. Mr. A.H. Naik, learned Advocate General, further pointed out that SRO-171 has been issued in accordance with law and in public interest and also in taking the objective of development of the industries in the State and, thus, proper course by the applicant is to file a writ petition to challenge the impugned Notification SRO-171 and not by way of amendment. (3). The petitioner claims to be entitled to the benefit of exemption from General Sales Tax and Central Sales Tax under Notification SRO-247 until 11-1-2007. The Government by issuing SRO-117 dated 28-5-2003 amended the earlier SRO-247 and restricted the entitlement to benefit of exemption from General Sales Tax and Central Sales Tax up to 30-9-2003. The petitioners grievance is that it has been subjected to irreparable loss and grave injury. The petitioner is stated to have made a total investment of Rs. 49 crores and has, in fact, faith and reliability on Notification SRO-247, referring to New Industrial Policy of 1998. Further submission of the petitioner is that the exemption is up to 11-1-2007, which is very much material and essential for it, because it is only then that the applicant-petitioner-unit will be able to absorb the full amount of benefit of Sales Tax exemption to the extent of 150% of the capital investment made by him in his Unit. It is in this background, the applicant/petitioner seeks to challenge Notification SRO-171 dated 28-5-2003, which amends SRO-247 dated 20-8-1998, in the proposed amended writ petition. (4). It is in this background, the applicant/petitioner seeks to challenge Notification SRO-171 dated 28-5-2003, which amends SRO-247 dated 20-8-1998, in the proposed amended writ petition. (4). I have heard the learned counsel for the respective parties and also perused the relevant provisions of law touching the matter in controversy. (5). The undisputed facts emerging out of the record are that the applicant/petitioner-Unit was availing the benefit of exemption from General Sales Tax and Central Sales Act, and entitled to continue to avail the benefit up to 11-01-2007 by virtue of SRO-247 dated 20-8-1998. Notification SRO-171 dated 28-5-2003 has been issued by the Government, Finance Department, amending the earlier SRO-247 and restricting the entitlement of exemption from GST and CST only up to 30-9-2003, or till a new Industrial Policy is announced by the State Government. Mr. D.C. Raina, learned senior counsel appearing for the applicant, strenuously urged that in limiting the period of exemption from GST and CST, the Government in Finance Department has issued a notification SRO-171 dated 28-5-2003 sought to be challenged by amendment in the writ petition has occasioned a serious prejudice to the applicant/petitioner in having deprived it of all the concessions available to a Unit having prestigious status. According to Mr. Raina, the proposed amendment is necessary for resolving of real controversy between the parties and also in the interest of justice. Mr. Raina further stated that the applicant has acted in good faith and with all bona fides in making an application for amendment of the writ petition and challenge the notification SRO-171 dated 28-5-2003 issued by the Government, Finance Department, during the pendency of the writ petition. (6). It is well settled proposition of law that power to allow an amendment should be liberally exercised. As a general rule, leave to amend will be granted so as to enable the real question in issue between the parties to be raised on the pleadings, where the amendment will occasion no injury to the opposition party. Normal practice is that, always to give leave to amend unless the Court is satisfied that the party applying is acting mala fide. It is pertinent to point out that in considering the application seeking to amend the pleading, subsequent events can be taken into account. The order sought to be challenged by amendment has been passed during the pendency of the writ petition. It is pertinent to point out that in considering the application seeking to amend the pleading, subsequent events can be taken into account. The order sought to be challenged by amendment has been passed during the pendency of the writ petition. By issuing this notification SRO-171, the Government, Finance Department has restricted/limited the period of entitlement to the benefit of exemption from General Sales Tax and Central Sales Tax, amending the earlier SRO-247, on the basis of which the applicant/petitioner claims exemption up to 11-1-2007, and is stated to have resulted in grave injury and irreparable loss. In such circumstances, the amendment is necessitated by intervening events and did not change the basic structure of the writ petition. (7). The rule says, all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy. The applicant is directly affected by the notification SRO-171 sought to be challenged in the amended petition, as it outrightly pertains to the claim of the writ petitioner of having/availing the benefit of exemption from CST and GST upto 11-1-2007. This claim of the applicant/petitioner is based on the earlier notification SRO-247 dated 20-8-1998 entitling it to avail GST and CST exemption benefit for a specified period running up to 11-1-2007. In such circumstances, amendment sought by the applicant/petitioner does not involve a new matter or new set up of facts nor changes the very complexion of the very writ petition. That apart, the liberal principles, which guide the application of discretion in allowing amendment, are that multiplicity of proceedings should be avoided. The amendments, which do not totally alter the character of an action, should be readily granted. The only care and caution required to be taken is to see that injustice and prejudice of an irremediable character are not inflicted on the opposite party under the pretence of amendment, that one distinct cause of action should not be substituted for another and that the subject matter of the writ petition should not be changed by amendment. To allow or disallow the amendment depends upon the aforesaid principles. In other words, the dominant purpose of Order 6 Rule 17 is to minimise litigation. If the aforesaid tests are applied for the amendment sought, in my view, the same cannot be declined. To allow or disallow the amendment depends upon the aforesaid principles. In other words, the dominant purpose of Order 6 Rule 17 is to minimise litigation. If the aforesaid tests are applied for the amendment sought, in my view, the same cannot be declined. (8) In view of the facts and circumstances of the case and the aforesaid legal position, I allow the application and permit the proposed amendment in the writ petition. The amended Petition be filed by the petitioner accordingly.