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2010 DIGILAW 436 (GAU)

Hanuman Industries v. Union of India

2010-06-16

B.D.AGARWAL, R.S.GARG

body2010
JUDGMENT B.D. Agarwal, J. 1. All the aforesaid eight writ appeals are being disposed of by this common judgment, since the appeals have raised identical issues. Writ appeals No. 47 of 2009, 49 of 2009, 50 of 2009, 53 of 2009 and 54 of 2009 are arising out of common judgment dated 07.10.2009, whereas, WA Nos. 48 of 2009, 51 of 2009, 52 of 2009 arising out of common judgment dated 06.10.2009, passed by a learned Single Judge. Having lost their writ petition Nos. 226, 227, 208, 209, 210, 157, 141 and 173 (SH) of 2009 vide impugned judgments, the writ Petitioners have filed the appeals, under reference. 2. We have heard Smti. N. Saikia, learned Counsel for the Appellants whereas the Respondents were represented by Sri S.P. Mahanta, learned senior counsel. 3. At the outset, it would be apposite to mention here that the reliefs sought for by the Appellants were also raised and decided by the same Court in Anr. series of writ petitions, vide its judgment dated 20.06.2008, passed in W.P. (C) No. 279 (SH) of 2007. The aforesaid judgment dated 20.06.2008 was also upheld by the Division Bench and Special Leave Petition, filed by the Respondents being SLP No. 9578-9584/2009 were also dismissed by the Hon'ble Supreme Court on 01.05.2009. In the impugned judgment dated 06.10.2009 the Learned Single Judge has categorically observed that "there is no dispute that the instant case is squarely covered by the decision of this Court in W.P. (C) No. 279 (SH) of 2007". However, the present set of writ petitions have been basically dismissed on the ground of delay and latches on the part of the Petitioners in filing the writ petitions. At the same time the Learned Single Judge has also taken a view that it would be difficult to get allocation of additional fund at a belated stage and on these premises, the Learned Single Judge has declined to exercise its discretionary jurisdiction. 4. The writ petitions were filed under Article 226 of the Constitution of India, seeking a writ in the nature of Mandamus to the Respondents to release financial assistance as provided by the Government of India under the 10th Plan to the North Eastern Council against the "Scheme for Promotion of Industries in North East." The said Scheme is popularly known as 'SPINE'. The aforesaid scheme was floated to give incentive for setting up industrial units in the North Eastern region by way of giving subsidy to the entrepreneurs to the extent of 25% of the project cost or Rs. 50,00.000/-, whichever is less. On the basis of the promise/assurance given by the Respondents under the scheme, the Petitioners established their industries. 5. The aims and objectives of the scheme (SPINE) have been elaborately dealt with by the Single Judge in its original judgment dated 20.06.2008 and we do not deem it necessary to go into the constitutional validity of the scheme and also the allied question as to whether the Appellants/Petitioners are entitled to get the subsidy benefit for their investment in their respective industries. The Scheme had laid down the procedure for processing the claims. Accordingly, the Appellants/Petitioners submitted their applications during the period 2005-06, alongwith the necessary documents for setting up their plans and infrastructure facility. The applications were verified by the Industry Department, Assam to ascertain the entitlement of financial assistance to the Petitioners and after said verification forwarded the same to the NEC. Thereafter, processing of the applications was withheld, compelling the Appellants to file writ petitions. 6. In the opinion of the Learned Single Judge, the writ Petitioners were made known vide letter dated 05.02.2007, issued by the Ministry of Development of North Eastern Region (DoNER), Government of India, that no further applications will be entertained and despite that the Petitioners did not take any initiative to pursue their remedy. His Lordship has further held that the Petitioners were virtually "fence-sitter" and they have approached High Court only after dismissal of Special Leave Petition by the Apex Court and this conduct of the Petitioners indicates that they are trying to derive the benefit of earlier judgment, after sleeping over their rights for more than two years and this cannot be permitted on the principle of equity. 7. Smti Saikia, learned Counsel for the Appellants submitted that the Respondents used to take 3 to 5 years in processing the applications and as such, it cannot be said that the Appellants were not diligent in filing writ petitions. Learned Counsel for the Appellants also submitted that the letter dated 05.02.2007 issued by the Govt. 7. Smti Saikia, learned Counsel for the Appellants submitted that the Respondents used to take 3 to 5 years in processing the applications and as such, it cannot be said that the Appellants were not diligent in filing writ petitions. Learned Counsel for the Appellants also submitted that the letter dated 05.02.2007 issued by the Govt. of India to NEC had nothing to do with the claim of the Petitioners and as such the Learned Single Judge has drawn a wrong inference that the Petitioners were aware of refusal of sanctioning of financial assistance. The learned Counsel also contended that Law of Limitation is not applicable in the writ jurisdiction in stricto-sensu and at any rate filing of writ petitions within a period of less than 3 years cannot be considered as pursuing the remedy after inordinate delay. Smti. Saikia, learned Counsel for the Appellant also contended that in absence of any specific order, rejecting the claim of the Petitioners the writ petitions ought not to have been dismissed on the ground of delay and instead the Court should have taken a liberal view in favour of the Petitioners, having regard to the fact that one set of similarly situated writ Petitioners were already given benefit and also keeping in mind that the Petitioners had also set up their industries on legitimate expectation of getting financial assistance under the scheme. 8. In support of her submission, the learned Counsel for the Appellants relied upon the judgment of the Hon'ble Supreme Court rendered in the case of Hindustan Petroleum Corporation Ltd. v. Dolly Das (1999) 4 SCC 450 , Suresh Chandra v. Union of India (2004) 13 SCC 563 ; State of Nagaland v. Lipok Ao (2005) 3 SCC 752 and the judgment of the Gauhati High Court rendered in the case of Dhirendra Chandra Roy v. Union of India 1998 (4) GLT 416 and few other judgments. 9. On the other hand, Sri Mahanta, learned Counsel for the Respondents reiterated that the Appellants/Petitioners were not vigilant to pursue their remedy and as such the learned Single Judge has rightly declined to entertain the writ petition. 10. 9. On the other hand, Sri Mahanta, learned Counsel for the Respondents reiterated that the Appellants/Petitioners were not vigilant to pursue their remedy and as such the learned Single Judge has rightly declined to entertain the writ petition. 10. As could be gathered from the impugned judgment the letter dated 05.02.2007 written by the Secretary in the Ministry of DoNER to the Secretary of NEC, Shillong is the only basis for taking the view that the writ Petitioners knew about the rejection of their application for financial assistance and as such they should have approached the Court soon thereafter. Hence, it would be just and proper to reproduce the said letter in extensor, as ready reference, which is as under: Please refer our letters dated 28.7.2006 and 3.8.2006 and reminders dated 28.8.2006. 13.9.2006. 20.10.2006 and 14.12.2006 for a detailed report in respect of the alleged financial irregularity in disbursement of Grand-in-aid under the "SPINCE Scheme" of NEC. In this matter we had requested a report on each unit after due enquiry but we have not as yet received any communication from NEC Secretariat. This assumes further importance that PMO has also been asking for a report in this connection. Therefore, I would like to request that a detailed report should positively reach us by 15.2.2007 and in view of the pending enquiry and decisions in the case of umbrella schemes any further sanctions/disbursements of grant-in-aid particularly under this scheme should be stopped forthwith. This letter issues with the approval of Minister, DoNER who has asked me to caution you that the matter will be referred to the investigating and vigilance agencies if a reply is not received within 15.2.2007. 11. During the course of hearing, the learned Counsel for the Appellants also produced the original judgment dated 20.6.2008, passed in Writ Petition passed in W.P. (C) 279 of 2007 and Ors. . We have gone through the aforesaid judgment and find that the import and implications of the letter dated 05.02.2007 was thoroughly discussed in the earlier judgment. In other words, in the earlier batch of writ petitions also, the Respondents had taken a view that on and from 05.02.2007, the scheme was withdrawn and as such if the writ petitions are allowed, it would be contrary to the decision of the Government. In other words, in the earlier batch of writ petitions also, the Respondents had taken a view that on and from 05.02.2007, the scheme was withdrawn and as such if the writ petitions are allowed, it would be contrary to the decision of the Government. However, the learned Single Judge rejected the contention and hold that the letter dated 05.02.2007 does not indicate that the SPINE had been withdrawn. His Lordship had further held that: in any case, the pendency of an enquiry which has no connection whatsoever with the Petitioners cannot be a ground for not processing the case of the Petitioner when the SPINE has not be (been) withdrawn by the competent authority in accordance with law. 12. During the course of hearing of the writ appeals, the learned Counsel for the Appellants also produced copies of the proceedings of the 58th Meeting of NEC held on 09.02.2010 as well as Notification dated 04.05.2010 issued from the Ministry of DoNER. Under Agenda Item No. 9, it was decided to close the scheme on the basis of executive order dated 05.02.2007. On the basis of the said resolution, the Notification dated 04.05.2010 was issued and the contents of the said notification are also reproduced below: Sub: Discontinuation of Scheme for Promotion of Industrialization in North East (SPINE). In pursuance to the withdrawal and closure of the scheme for Promotion of Industrialization in North East (SPINE) by the Ministry of Development of North Eastern Region (DoNER) in 2006-07 with effect from 23.02.2007 by an Executive Order of Government of India vide No. NEC/PLAN/II-26 dated 23.02.2007. a Resolution was adopted and passed by the Council during the 58th Council Meeting of North Eastern Council (NEC) held on 9.02.2010 in Guwahati confirming the said withdrawal and closure of SPINE Scheme as already done w.e.f. 23.02.2007. 13. Apparently, the letter dated 05.02.2007 was written by the Secretary of Ministry of DoNER to the Secretary of NEC. Shillong asking for a report to financial irregularities in disbursing financial aid under the SPINE scheme. In the Affidavit-in-opposition of NEC, it was further clarified that 13 industrial units from the State of Mizoram were put under vigilance enquiry and the letter dated 05.02.2007 was issued in that context. 14. Shillong asking for a report to financial irregularities in disbursing financial aid under the SPINE scheme. In the Affidavit-in-opposition of NEC, it was further clarified that 13 industrial units from the State of Mizoram were put under vigilance enquiry and the letter dated 05.02.2007 was issued in that context. 14. Be that as it may, the finding of the Learned Single Judge that the scheme cannot be said to have been closed under Letter dated 05.02.2007 has attained finality and we hold that the scheme continued till the notification dated 04.05.2010. Since the Appellants had set up their industrial units during the validity of the scheme and submitted their claims before withdrawal of the scheme, the Respondents are obliged to consider the same. 15. As has been noted earlier, the main ground for treating the writ petitions to have been filed at a belated stage is the letter dated 05.02.2007. The learned Single Judge has held that "at any rate by the letter dated 05.02.2007, the Petitioners were already aware of the refusal of the Respondents to sanction the financial assistance." 16. In our considered opinion the aforesaid finding of the learned Single Judge is contradictory to his opinion taken in the original judgment dated 20.06.2008 wherein His Lordship had taken a view that the said letter did not indicate withdrawal of the scheme nor pendency of an enquiry by Ministry of DoNER could be a ground for not processing the Petitioners' claims. To say it differently, if the scheme was not closed by the letter dated 05.02.2007, the time limit for filing of the writ petitions ought not to have been counted from the said date. The Respondents did not produce any letter from the Ministry of DoNER or by NEC, categorically rejecting the claims of the Petitioners. Even otherwise the writ petitions were filed in the year 2009 and even if Articles 113 and 137 of the Limitation Act 1963, which prescribes 3 years period for filing suits, are taken as the yardstick to calculate the period of limitation, still the writ petitions were within the statutory period. 17. Even otherwise the writ petitions were filed in the year 2009 and even if Articles 113 and 137 of the Limitation Act 1963, which prescribes 3 years period for filing suits, are taken as the yardstick to calculate the period of limitation, still the writ petitions were within the statutory period. 17. In umpteen number of judgments, including the authorities cited on behalf of the Appellants, it has been held that the doctrine of limitation does not fetter the writ jurisdiction of High Courts under Article 226 of the Constitution and the writ petitions should ordinarily be not dismissed on the ground of delay and latches, provided some satisfactory explanation is furnished by the Petitioners. Since Article 226 of the Constitution has not provided any time limit for filing of writ petitions the High Court ordinarily follows the period of limitation provided under the Limitation Act. In the case of Lipok Ao (supra) the Apex Court held that length of the delay does not matter much but the sufficiency of the cause shown and shortness of the delay is one of the circumstances to be taken into account in using the discretion. In fact, this established principle has also been acknowledged by the learned Single Judge in his impugned judgments. Similarly, in the case of Apangshu Mohan Lodh and Ors. v. State of Tripura reported in (2004) 1 SCC 119 , the Apex Court held that prayer for condonation of delay should be considered liberally and in a pragmatic manner. We are also of the view that dogmatic attitude should not be adopted so that meritorious writ petitions are not thrown over-board or dismissed at the threshold on technical grounds. 18. In the case before us, apparently the Respondents did not produce any document that the claims of the writ Petitioners were finally rejected. Had it been so the period of delay could have been counted from the date of knowledge of the Petitioner about the rejection of their claims by the Respondents. As noted earlier, the learned Single Judge has taken into consideration the letter dated 5.2.2007 as the decision of the Government to reject the Petitioners claims. However, the import and the purpose for which the aforesaid letter was issued has already been discussed earlier in this judgment as well as by the learned Single Judge in his original judgment dated 20.6.2008. However, the import and the purpose for which the aforesaid letter was issued has already been discussed earlier in this judgment as well as by the learned Single Judge in his original judgment dated 20.6.2008. Hence, in our considered opinion, dismissal of the writ petitions on the ground of delay and leches is not sustainable, both in law as well as on facts. 19. The judgment relied upon by the learned Single Judge to draw the conclusion that the writ petitions were filed at a belated stage appears to be distinguishable on facts. In the case of M/s. Rup Diamonds and Ors. v. Union of India reported in (1989) 2 SCC 356 the writ petition was filed after lapse of several years from the completion of export obligations. In other words, in the aforesaid case there was specific date of cause of action, whereas in the present set of appeals the claim of the Petitioners/Appellants were kept in abeyance and no final decision was taken by the competent authority. Similarly in other cases also, relied upon by the learned Single Judge there was inordinate delay in pursuing the remedy, whereas, the case before us the Petitioners/Appellants were pursuing their claims before the competent authorities and writ petitions were also filed within a period of less than three years. Hence, in our considered opinion, it is not a clear case of fence-sitters. 20. The other ground to dismiss the writ petitions is that if the relief is granted at a belated stage it may have adverse financial implication to the Government. The records, particularly the affidavit of the State-Respondents, shows that the Respondents did not take this plea specifically. Even otherwise we are of the view that if the Respondents can allocate fund to give financial assistance to one group of persons even after withdrawal of the Scheme by virtue of the judgment dated 20.6.2008 the Government can also arrange fund for the present set of Appellants. Having given our anxious consideration to all the aspects of the matter and taking note of the fact that the learned Single Judge has held that the case of the Petitioners/Appellants is squarely covered by the judgment dated 20.6.2008 on merit, we hold that the Appellants also deserve the same relief and order which was given to the previous Petitioners. Having given our anxious consideration to all the aspects of the matter and taking note of the fact that the learned Single Judge has held that the case of the Petitioners/Appellants is squarely covered by the judgment dated 20.6.2008 on merit, we hold that the Appellants also deserve the same relief and order which was given to the previous Petitioners. The direction is extracted below: 13...The Respondent authorities are, therefore, directed to process the application of the Petitioner for investment subsidy under the SPINE in accordance with law and without influenced by the letter dated 2.5.2007 of the Secretary in the Ministry of DoNER for sanctioning the same due to it within a period of ninety days from the date of receipt of this judgment.... 21. In the result the impugned judgments are hereby set aside and the writ appeals are allowed. In other words the order and direction given in W.P. (C) 279 (SH) of 2007 will also be applicable to the present Appellants. The parties are directed to bear their own costs of this proceeding. Appeal allowed.