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2010 DIGILAW 888 (UTT)

SANT STEEL AND ALLOYS PVT. LTD. v. GOVT. OF INDIA

2010-12-21

BARIN GHOSH, V.K.BIST

body2010
JUDGMENT [Per : Hon’ble Barin Ghosh, C.J. (Oral)] Review Application No. 81 of 2006 On 20th April 2006, Writ Petition (M/B) No. 263 of 2005 was finally decided by a Division Bench of this Court on the basis of submission, said to have been made by Assistant Solicitor general to the effect that a part of Schedule-III ought to have been notified in Schedule-II and the said correction would be made at the earliest. In the review application, it has been stated that the Assistant Solicitor General was not authorized to make any such submission. On the records of this Court, there is nothing to suggest that the Assistant Solicitor General was authorised to make such submission before this Court. In the circumstances, we allow the Review Petition No. 81 of 2006 filed in writ petition (M/B) No. 628 of 2005 and, accordingly, recall the order dated 20th April, 2006 passed on Writ Petition (M/B) No. 628 of 2005. Writ Petition (M/B) No. 628 of 2005 shall be heard afresh. Writ Petition (M/B) No. 628 of 2005 An industrial unit manufacturing iron ingots was set up by the petitioner within the industrial estate situated in Tehsil : Kotdwar, District : Pauri Garhwal in the State of Uttarakhand. On 7th January 2003, Central Government announced a policy and thereby proposed, amongst others, to grant 100% outright excise duty exemption for a period of 10 years to industrial units mentioned in the said policy from the date of commencement of commercial production. The industrial units, who were entitled to the benefit of the said policy, were new industrial units and existing industrial units on their substantial expansion set up in, amongst others, industrial estates, as stated in Annexure – I to the said policy. In Annexure-I, Tehsil: Kotdwar, District Pauri Garhwal, State of Uttarakhand was identified as one of the places where a new industrial unit or an existing industrial unit has been set up in an industrial estate. Apparently, therefore, petitioner would be a beneficiary of the said policy. New industrial units and existing industrial units, on their substantial expansion, referred to in the said policy, were purported to be defined and, accordingly, the words, “as defined” were mentioned in the policy, but no such definition was given, instead, particulars of the ineligible industries had been furnished. Apparently, therefore, petitioner would be a beneficiary of the said policy. New industrial units and existing industrial units, on their substantial expansion, referred to in the said policy, were purported to be defined and, accordingly, the words, “as defined” were mentioned in the policy, but no such definition was given, instead, particulars of the ineligible industries had been furnished. When the words “substantial expansion” was used, no attempt was made to define the same in the policy. The policy directed, amongst others, the Revenue Department to amend Acts/Rules/Notifications, etc. and to issue necessary instructions for giving effect to the decision contained in the policy. The question, therefore, is whether an existing industrial unit, situated in an industrial estate located in Annexure-I to the policy, could ask for the benefits under the said policy. In order to ask for the benefits under the policy, the unit concerned was required to show that it has made substantial expansion. Since what would be substantial expansion had not been indicated in the policy, there would always be dispute whether the unit concerned has discharged its obligations under the policy in order to take advantage or benefits thereunder. In substance, therefore, the conclusion would be that the policy dated 7th January 2003, in so far as existing industrial units are concerned, was not conclusive. The same would become conclusive and, accordingly, would become enforceable, only when further steps have been taken by amending Acts/Rules/Notifications, etc. or by issuing necessary instructions for giving effect to the decision contained in the policy. 2. The policy was given effect to and was made conclusive on 10th June 2003, when an exemption notification was made and published. In that, it was indicated that an existing industrial unit must expand to not less than 25% of its existing installed capacity after 7th January 2003 in order to take advantage of the policy. The notification dated 10th June 2003, thus published, made the policy dated 7th January 2003 wholesome and, accordingly, an existing industrial unit on expansion of its installed capacity by not less than 25% after 7th January, 2003 became entitled to the benefits of the said policy. The notification dated 10th June 2003, thus published, made the policy dated 7th January 2003 wholesome and, accordingly, an existing industrial unit on expansion of its installed capacity by not less than 25% after 7th January, 2003 became entitled to the benefits of the said policy. However, in the notification dated 10th June 2003, in addition to mentioning the location of the industrial estates at Tehsil Kotdwar, District Pauri Garhwal in the State of Uttarakhand, two additional particulars were furnished, namely, that of the name of industrial estate of Jashodharpur and Khasra numbers of the said industrial estate. According to the petitioner, though the industrial unit of the petitioner is located in the industrial estate of Jashodharpur but the same is not situated on the Khasra numbers mentioned in the notification dated 10th June 2003. The industrial unit of the petitioner is situated on the Khasra Nos. 60¼d½ and 61 of Tehsil Kotdwar, District Pauri Garhwal in the State of Uttarakhand, but the same is situated within the industrial estate of Jashodharpur. Petitioner contends that Khasra Nos. 60 ¼d½ and 61 were inadvertently omitted in the notification dated 10th June 2003. It is the contention of the petitioner that District Industrial Centre of the District was also of the same view and, accordingly, on 21st July 2003 made a request to the Industrial Department of the State to incorporate the said Khasra numbers in the said notification dated 10th June 2003. It appears that the same was not done and, accordingly, petitioner approached this Court by filing a writ petition. The said writ petition, along with similar other writ petitions, were disposed of by an order dated 3rd March 2005, when the petitioner was asked to make a fresh representation with a fresh recommendation of the State Government or SIDCUL with a direction upon the Central Government to decide the said representation. It appears to be the contention of the petitioner that it did make a representation armed with a recommendation of the State Government and thereafter on 6th June 2005, it was informed by the State Government that its grievances have been redressed by a notification published on 19th May 2005. It is the contention of the petitioner that while looking at the notification dated 19th May 2005, it transpired that thereby notification dated 10th June 2003 was amended. It is the contention of the petitioner that while looking at the notification dated 19th May 2005, it transpired that thereby notification dated 10th June 2003 was amended. While, however, amending the said notification dated 10th June 2003, Annexure-II to the notification dated 10th June 2003 was retained, showing industrial estates situated at Khasra numbers, Tehsils, districts and the State, in which if an industry is in existence, on substantial expansion thereof, or a new industry will be entitled to the benefit of the said policy, but at the same time a new annexure, being Annexure-III, was added to the Notification dated 10th June, 2003 giving similar such particulars of the industrial estates, where only on setting up of new industries, benefit of the policy would be available. It was contended that in Annexure-III, the Khasra numbers, pertaining to the industry of the petitioner situated in Tehsil Kotdwar, District Pauri Garhwal, State of Utarakhand, was mentioned. It is the contention of the petitioner in the writ petition that a mandamus should, in the circumstances, be issued to rectify the original mistake, as was committed in Annexure-II to the notification dated 10th June 2003 or to issue a direction for issuance of an appropriate notification permitting exemption of excise duty, in so far as the industrial unit of the petitioner is concerned and situated at Jashodharpur industrial estate, Khasra Nos. 60¼d½ and 61, Tehsil Kotdwar, District Pauri Garhwal in the State of Uttarakhand. 3. In the event a promise is made and the same is accepted by acting on the basis of the promise to the detriment of the person so acting, it is now settled that the promiser can be compelled to discharge his obligations under the promise. The question is, whether the promise made in the policy dated 7th January 2003 could be acted by the petitioner to its detriment? The policy dated 7th January 2003 did hold out that benefits thereunder will be also available to the petitioner, in as much as it was held out in the said policy that an existing industrial unit set up in an industrial estate, situated at Kotdwar, District Pauri Garhwal in the State of Uttarakhand, will be entitled to the benefits of the said policy, provided it carries out substantial expansion. However, the 7th January, 2003 policy, having not given particulars of the expansion of the existing industrial units to be effected, for the purpose of obtaining benefits under the said policy, it does not appear to us that the petitioner could act its detriment for the purpose of taking advantage of the said policy dated 7th January 2003. As aforesaid, the policy became wholesome only when the notification dated 10th June 2003 was made and published, and thereby the petitioner was made to know that in order to act to its detriment for the purpose of obtaining advantage under the policy, the petitioner is required to effect not less than 25% expansion of its installed capacity in its existing industrial unit. However, when the policy was thus made wholesome by publication of the notification dated 10th June 2003, an existing industrial unit established in an industrial estate in the Tehsil of Kotdwar, District Pauri Garhwal in the State Uttarakhand, would not do. It would require to be an existing industrial unit situated in Jashodharpur industrial estate on those Khasra numbers, in the Tehsil of Kotdwar, in the district of Pauri Garhwal and in the State of Uttarakhand. The existing industrial unit of the petitioner being not there, the petitioner, we do not think, could act to its detriment for the purpose of taking advantage of the policy in question. 4. Assuming, as has been canvassed before us, that the State of Uttarakhand at the time of furnishing particulars to denote the subject industrial estates, by mistake omitted to include Khasra Nos. 60¼d½ and 61 and later on realizing the said mistake, wanted to incorporate the same in the notification dated 10th June 2003, but the fact remains that the request of the State Government has not been acceded to by the Central Government and, accordingly, the same has not been incorporated in Annexure-II to the notification dated 10th June 2003. It is not the contention of the Central Government that it made a mistake. As would be evident from the judgment of this Court dated 3rd March 2005, the Central Government, though may have had conceded that there had been mistake on the part of the State Government, but, nevertheless, it never contended that there was any mistake on its part in the matter of making the notification dated 10th June 2003. As would be evident from the judgment of this Court dated 3rd March 2005, the Central Government, though may have had conceded that there had been mistake on the part of the State Government, but, nevertheless, it never contended that there was any mistake on its part in the matter of making the notification dated 10th June 2003. Therefore, even if on the basis of mistake committed by the State Government the notification dated 10th June 2003 had been made by the Central Government, the question is, can the writ Court rectify the said mistake and, if the writ Court rectifies the same, what would be the effect thereof? If a mandamus is issued to incorporate those two Khasra numbers in the notification dated 10th June 2003, the same would tantamount to expansion of the policy, which the writ Court cannot do. The effect of such direction would be doing something which the Court is not competent to do. In the circumstances, were are constrained to hold that, although it appears to us that Khasra Nos. 60¼d½ and 61 were not incorporated in Annexure-II to the notification dated 10th June 2003 for the blunder on the part of the State in furnishing appropriate information to the Union of India, but we are incompetent to incorporate the same in the said notification, particularly, in view of the fact that when the said mistake was pointed out, the Central Government agreed to give advantage to new industrial units situated on the said Khasra numbers by incorporating Annexure-III to the notification dated 10th June 2003 by the amendment effected on 19th May 2005 and, accordingly, the same should be deemed to be a conscious decision of the Central Government and, in as much as the same pertains to a policy decision, the scope of intervention by the judiciary in that regard is absolutely limited. Apart from contending that the action complained of is discriminatory in nature, nothing else has been highlighted in the petition, on the basis whereof the said action can be called in question. In so far as discrimination is concerned, the policy granted benefit to industries situated at one place, but refused to give benefit to industries situated at other places. The policy itself discriminated one industry from another only on the basis of their location. In so far as discrimination is concerned, the policy granted benefit to industries situated at one place, but refused to give benefit to industries situated at other places. The policy itself discriminated one industry from another only on the basis of their location. Therefore, on the ground of discrimination, as such, there is no scope of interference in the matter. 5. We, accordingly, close the matter, but, however, before doing so, having noted the judgment of this Court dated 3rd March 2005, which has reached finality, we are of the view that the petitioner was entitled to know from the Central Government of the result of the consideration by the Central Government of the representation of the petitioner made pursuant to the said order of this Court and the same, having not yet been received, we ask the Central Government to make the same available to the petitioner within a period of six weeks from the date of service of a copy of this order upon Revenue Secretary, Government of India. We make it absolutely clear that, although there are pleadings to the effect that the petitioner has made substantial expansion in terms of the policy in question, but we have not gone into that aspect of the matter.