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2010 DIGILAW 1141 (PAT)

M/s. D. R. Polymer v. State Of Bihar

2010-05-06

AJAY KUMAR TRIPATHI

body2010
JUDGEMENT AJAY KUMAR TRIPATHI, J. 1. Heard learned counsel for the parties. 2. Petitioner set up a Small Scale Industry manufacture of Acrylic/Plastic Sheets and started commercial production in the year 1990. Unit was duly registered with North Bihar Industrial Area Development Authority and is located in the industrial area of Hajipur. 3. The stand of the petitioner in the writ application is that the Industrial Policy Resolution, 1986, brought into force on 1.9.1986, envisaged grant of subsidy on capital investment and seed money in terms of clause 5 and 6 of the said policy. Details of the policy are available in annexure-2 to the writ application. 4. 1986 Policy was further extended by another five years as per the Industrial Policy Resolution 1990. In otherwords grant of subsidy of capital investment and seed money continues. It is the case of the petitioner that on the total investment of Rs. 4.25 lakhs the Department of Industry sanctioned a capital subsidy of Rs. 63,750/-. Petitioner entered into an agreement with the Bihar State Financial Corporation. But for some reason or the other this capital subsidy was never released or credited into the account of the petitioner. 5. One thing which the petitioner does not deny is that for lack of liquidity the unit did not function in full capacity. In fact there came a stage when the unit was run at a low capacity or was carrying out some odd jobs here and there. According to him it was not a case of shut down or closer. In support thereof the petitioner has annexed various electricity bills which was being paid by him to the Electricity Board. Now an additional supplementary affidavit/rejoinder has been filed bringing on record the so call returns of profit and loss account. These submissions have significance for adjudication of the case therefore has been noticed in this part of the order. 6. When the petitioner finally failed to get the subsidy in question which was already authorized, he decided to file the present writ application seeking a direction upon the respondents to release subsidy amount in favour of the petitioner. 7. The stand of the respondents in the counter affidavit is that as per the policy decision taken by the State, subsidy was to be made available only to those units which were working and functional and not closed units. 7. The stand of the respondents in the counter affidavit is that as per the policy decision taken by the State, subsidy was to be made available only to those units which were working and functional and not closed units. The policy decision in this regard is letter no. 1061 dated 21.2.1997. The said letter forms a part of the counter affidavit filed by the respondent nos. 1 and 2 as annexure-B. There is further statement or stand that a survey was carried out of all the units and detailed list thereof was furnished to BSFC. The list of closed units included the name of the present petitioner and that was the primary reason for denial of the benefit of subsidy to the unit. The decision of the respondents therefore is based on policy decision taken by the State Government and the decision cannot be faulted. 8. Learned counsel for the petitioner thereafter submits that there are materials to show that the petitioners unit was not closed. It was working under capacity and was also declared sick for non-availability of finance and funding by bank to the extent of capital required to run the unit efficiently. When and how the so called survey was carried out is not known to the petitioner. In addition to the same learned counsel relies and draws the attention of this Court to the case of M/s. A.R. Chemical Pvt. Ltd. V/s. The State of Bihar reported in 2004 (2) PLJR 795 . 9. In a similar situation the Court came to a considered opinion that the reason for denial of capital subsidy on the basis of the so called decision of the State taken in the year 1997 seems to be misplaced. Subsidy had to accrue to the petitioner on the basis of 1986 Industrial Policy Resolution. Subsequent changes or amendments will not come in the way of the petitioner to claim such a benefit. In fact the Court took a very serious view of the matter and not only allowed the writ application but even imposed cost on the Director of Industry to be payable from his own pocket. 10. Counsels submission in the light of above position therefore is that the issue stands settled with regard to entitlement of the petitioner to be released the subsidy amount which if stood released at an appropriate time the present dispute could not have arisen. 10. Counsels submission in the light of above position therefore is that the issue stands settled with regard to entitlement of the petitioner to be released the subsidy amount which if stood released at an appropriate time the present dispute could not have arisen. Merely because they have dragged the issue over a long period of time, what ought to have accrued to petitioner is being denied at a subsequent stage based on so called policy decision taken many years later. If the petitioners application and grant of capital subsidy was made in the year 1991 itself the mischief or impediment coming in his way by a subsequent development would not have prevented him from drawing the advantage of 1986 Industrial Policy. 11. The facts and law being what they are, more so taking into consideration a similar decision rendered in the case of M/s A.R. Chemical Pvt. Ltd. (supra) the petitioner has made out a case for direction upon the respondent authority for release of subsidy amount in favour of the petitioner. 12. The respondent authorities are hereby directed to ensure that the capital subsidy authorized in favour of the petitioner is now released in his favour forthwith preferably within a period of eight weeks from the date of communication or production of a copy of this order. 13. Keeping in mind that in a similar situation other petitioner had been granted benefit of interest also. Let the petitioner be granted interest on that amount from the period it was due and it was paid at the rate of 6% per annum. 14. This writ application stands allowed with the above direction.