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2014 DIGILAW 251 (GAU)

STATE OF ASSAM v. JAGUNBARI TEA CO.

2014-03-03

A.K.GOSWAMI, A.M.SAPRE

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JUDGMENT A.M. Sapre, J. Heard Mr. D Saikia, learned Addl. Advocate General, Assam appearing for the appellant. Also heard Mrs. N Saikia, learned counsel appearing for the respondents. The decision rendered in this appeal shall also dispose of the other connected appeals being WA No.14/2014, Sl No.219950 WA, Sl No.219953 WA and Sl. No.219954 WA because all the four appeals involve identical issue and therefore, as prayed by the learned counsel for the parties, can be disposed of by passing one common order. This is an intra-court appeal filed by the respondents of W.P.(C) No.6775 of 2010 under Rule 2(3) of Chapter V-A of the Gauhati High Court Rules against the judgment and order dated 8.6.2012 passed by the Single Judge in the abovementioned writ petition. By impugned order dated 8.6.2012 passed in WP(C) No.6755/2010, learned Single Judge allowed the writ petition filed by the writ petitioner (respondent herein) and issued the writ of mandamus against the respondents (appellants herein) directing the State authorities to release the second installment of subsidy under the CCIS Scheme 1997 in favour of the petitioner within a period of three months from the date of receipt of this order. It is against this order, the State of Assam has felt aggrieved and filed the intra-court appeal. So far as WA No.14/2014 is concerned, it is filed by Union of India against the order dated 22.6.2012 passed in WP(C) o.5361/2010 wherein another learned Single Judge allowed the said writ petition filed by the writ petitioner (respondent in the said appeal) giving somewhat similar relief which was granted in WP(C) No.6755/2010, out of which WA No.15/2014 arises. We need not burden this order by narrating the facts in more detail except to the extent necessary for disposal of these matters. It is for the reason that having heard the learned counsel appearing for the parties and on perusal of the record of the case, we have formed an opinion to allow the appeal in part and remand the case to the Writ Court for deciding the issue out of which this appeal arises afresh in accordance with law. We therefore do not consider it necessary to record any finding on issues arising in the case on merits in this appeal and instead leave it for the Writ Court to record the finding on the various issues arising in the case afresh on merits. We therefore do not consider it necessary to record any finding on issues arising in the case on merits in this appeal and instead leave it for the Writ Court to record the finding on the various issues arising in the case afresh on merits. The need to remand the case has occasioned because we find from paragraph 5 of the impugned order dated 8.6.2012 passed in WP(C) No.6755/2010 that State was not granted further opportunity to substantiate the statements made by them in the return and to file documents in support of their contention. It is clear from the following observation of the learned Single Judge which we consider apposite to mention hereinbelow;- “5. In the course of hearing on 07.06.2012, the learned counsel for the State respondents had admitted that prior to 2005, there was no rule debarring an applicant for the subsidy from availing a subsidy/grant under the two schemes of the Central Government, but, in 2005, a revised policy was issued by the Central Government debarring any unit from claiming more than one benefit under Central Government Scheme such as SPINE and CCIS Scheme. I had pointedly asked him to produce on 7.6.2012 any supporting document to substantiate his statement, but was unable to do the same. He, however, asked for some more time: the case was adjourned for the day. Today, when the matter is taken up again, the learned State counsel expresses his inability to produce such rule at a short notice and seeks further time to produce the same. Interesting, such plea was never set up in the pleadings of the respondents: this is the first time the existence of such rule or revised policy is referred to. He, however, brings to my notice something like rule 2009 purportedly one under the “General Finance Rules, 2005” regarding the principles and procedure regulating subsidy/grants of Central Government and which requires any organization/institution seeking grant in aid to certify that it has not obtained or applied for grants for the same purpose or activity from any other Ministry or Department of the Government of India or State Government. Curiously, the rule cited by the learned State counsel does not indicate the name of the rule except something like “General Finance Rule, 2005, Govt. of India” in hand writing at the bottom. Curiously, the rule cited by the learned State counsel does not indicate the name of the rule except something like “General Finance Rule, 2005, Govt. of India” in hand writing at the bottom. As already noted, this is the first time, such plea was made or rule or revised polity pointed out: they should have been annexed to their counter-affidavit. Yet, the writ petition has been pending since 2010. In my opinion, this incomplete document or dubious nature can be of no assistance to the learned State counsel to substantiate his contention to the effect that the unit seeking the financial grant from the Government cannot avail of two subsidies/grants for the same purpose or activity. The contention of the learned State counsel that the fact the petitioner itself had certified by affidavit that it had not availed of other benefits would go to show that such policy is implied, if not expressly has no substance when there is no specific rule to that effect could be produced by him. Merely because the petitioner needlessly made a declaration to that effect does not, in the absence of documentary evidence, does not necessarily lead to the conclusion that there is a bar of availing of double benefits. Moreover, some 29 other units similarly situated like the petitioner were also allowed to receive both the schemes under CCIS and SPINE. The averments made by the petitioner in the additional affidavit asserting that 29 other units had also been allowed to avail of the subsidy/grant from both the SPINE and CCIS Scheme has remained unrebutted. These clearly show that refusal of the respondent authorities to release the subsidy/grant under CCIS Scheme on the ground that it had already availed of such benefits from any Central SPINE does not have any basis. On the contrary, the petitioner appears to have been subjected to hostile discrimination: it has been given a raw deal by the respondent authorities. These clearly show that refusal of the respondent authorities to release the subsidy/grant under CCIS Scheme on the ground that it had already availed of such benefits from any Central SPINE does not have any basis. On the contrary, the petitioner appears to have been subjected to hostile discrimination: it has been given a raw deal by the respondent authorities. As for the contention of the learned State counsel that allowing the writ petition will open a flood gate of litigation to others who are now waiting in queue, the contention has no merit inasmuch as the petitioner cannot be refused a relief to which he is otherwise entitled to under the law simply on the ground that it will open a flood gate of litigation.” Learned counsel for the appellant (State) submits before us that all the necessary documents have now been filed in appeal as Annexures to the appeal memo and to the additional affidavit filed by Mr. MU Ahmed, Additional Director (FP), Industries and Commerce Deptt., Assam and hence they may be taken into consideration while deciding the appeal. In our considered view, it would be in the interest of justice, if these documents are allowed to be placed on record because they are material for deciding the issue. Since the documents filed by the appellants are allowed to be taken on record and therefore, it is necessary to grant opportunity to the writ petitioner (respondent herein) to file any documents in its rebuttal in case if they wish to file. Since the impugned order was passed without affording adequate opportunity to the respondent State which resulted in passing an order against them and now that they have filed documents which we have taken on record, it is just and proper and also in the interest of justice to remand the case to the Writ Court for deciding the writ petition afresh on merits in accordance with law after taking into account the documents filed and now to be filed by the writ petitioner, in case if they wish to do so. Accordingly and in the light of the foregoing discussions, the appeal succeeds and is allowed in part. The impugned orders passed in writ petitions out of which these appeals arise are quashed. As a result, the writ petitions are restored to their respective files. Accordingly and in the light of the foregoing discussions, the appeal succeeds and is allowed in part. The impugned orders passed in writ petitions out of which these appeals arise are quashed. As a result, the writ petitions are restored to their respective files. Parties are granted one month’s time to complete the pleadings and file documents in addition to what they have already filed in the Writ Court and also in the appeal which we have already taken on record. The documents filed in the appeal may now form part of writ court record. The Writ Court will decide the writ petitions denovo strictly in accordance with law on the basis of the entire pleadings and the documents. Office is directed to list the writ petitions before the appropriate Bench as per the roster for its hearing without being influenced by any order passed earlier and by our observation which we have refrained from making. No cost.