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2017 DIGILAW 1005 (JHR)

Tetulia Coke Plant (P) Ltd. v. State of Jharkhand

2017-06-30

D.N.PATEL, RATNAKER BHENGRA

body2017
ORDER : D.N.Patel, J. 1. This Letters Patent Appeal has been preferred by the original petitioner, who had preferred W.P.(C) No. 4809 of 2004 for getting- (a) Capital subsidy; (b) Captive power generating subsidy; and (c) Interest subsidy in terms of Jharkhand Industrial Policy, 2001. This petition has been dismissed by the learned Single Judge vide judgment and order dated 29.06.2016 and hence, the original petitioner has preferred the present Letters Patent Appeal. Arguments canvassed by the counsel for the appellant: 2. Counsel appearing for the appellant has submitted that in pursuance of Jharkhand Industrial Policy, 2001, this appellant (original petitioner) established a small-scale industry. This appellant is manufacturing Behive Hard Coke and Slurry Washed Coal. It is also submitted by the counsel for the appellant that there are recommendations made by the Government Officers for this appellant for interest subsidy as per Annexure-2 & 3. There is also recommendation for capital investment subsidy at Annexure-4 and there is also recommendation by the Government Officers to give power generating subsidy as per Annexure 4/1. These subsidies were not given by the respondents-State of Jharkhand to this appellant and hence, W.P.(C) No. 4809 of 2004 was preferred. Counsel appearing for the appellant has also placed reliance upon Clause No. 37 of the Jharkhand Industrial Policy, 2001 that a notification should have been issued for withdrawal of the subsidy. Moreover, it is also submitted by the counsel for the appellant that as per order, at Annexure-6/1, which is dated 14.12.2004, the industrial policy cannot be altered or amended and even if it is altered or amended, no retrospective effect can be given. This appellant has already established an industry in pursuance of the Jharkhand Industrial Policy, 2001 and therefore, as per the said policy, this appellant is entitled to get interest subsidy at the rate of Rs.25,928/-, capital investment subsidy at Rs.6.66 lakh and power generating subsidy at Rs.85,856/-. These figures have been taken from Annexure-3, Annexure-4 and Annexure-4/1. It is also submitted by the counsel for the appellant that the industry of this appellant is not covered by Clause-10 of Annexure-III of the Jharkhand Industrial Policy, 2001. These aspects of the matter have not been properly appreciated by the learned Single Judge and hence, judgment and order, delivered by the learned Single Judge dated 29.06.2016 in W.P.(C) No. 4809 of 2004 deserves to be quashed and set aside. These aspects of the matter have not been properly appreciated by the learned Single Judge and hence, judgment and order, delivered by the learned Single Judge dated 29.06.2016 in W.P.(C) No. 4809 of 2004 deserves to be quashed and set aside. Counsel for the appellant has relied upon the decisions in the cases of “Vaishnavi Ferro Tech (P) Limited -Versus- State of Jharkhand & others”, reported in 2015 (1) JLJR 399 and “Devi Multiplex & another -Versus- State of Gujarat & others”, reported in 2015(3) JLJR 242 (SC). Arguments canvassed by the counsel for the respondents-State: 3. Counsel appearing for the respondents-State has submitted that Industrial Policy, floated by the State of Jharkhand, as Clause No. 15, which prescribes negative list of the industries, which are not eligible for incentives. As per Annexure-III of the Industrial Policy, floated by the State of Jharkhand at Serial No.10, industries, which are coal/coke screening industry, are not entitled to any incentive, under the Jharkhand Industrial Policy, 2001. It is submitted by the counsel for the respondents-State that the industry established by this appellant (original petitioner) is for manufacturing of Behive Hard Coke and Slurry Washed Coal. Thus, it is basically a coal/coke screening industry. These aspects of the matters have been properly appreciated by the learned Single Judge because such type of industry are not eligible for incentives. It is also submitted by the counsel for the respondents-State that the recommendation, which is annexed with the memo of this Letters Patent Appeal, is nothing, but, a recommendation only. No final decision has been given by the Government in favour of this appellant ever before. It is also submitted by the counsel for the respondents-State that Clause-37 of the Jharkhand Industrial Policy, 2001 has been relied upon by the counsel for the appellant, but, this Clause-37 is meant for the withdrawal of the incentive, if at all such incentive has been given. In the facts of the present case, the industry, established by this appellant, was never entitled to any incentive under the Jharkhand Industrial Policy, 2001 and hence, no question whatsoever arises for issuance of a notification under Clause-37; even otherwise also, the said Industrial Policy is no more in force after 31.03.2005 and hence, this Letters Patent Appeal cannot be entertained by this Court. REASONS 4. REASONS 4. Having heard counsel for both the sides and looking to the facts and circumstances of the case, we see no reason to entertain this Letters Patent Appeal mainly for the following facts and reasons: (i) Claim of this appellant (original petitioner) is for: (a) Capital investment subsidy; (b) Power generating subsidy; and (c) Interest subsidy under the Jharkhand Industrial Policy, 2001. (ii) As per the Jharkhand Industrial Policy, 2001, especially, Clause-15 thereof, there is a list of industries, which are not entitled to any incentive. As per Clause-10 of the list-III, industries, which are coal/ coke screening industries, are not entitled to any incentive and hence, the question to be decided by this Court, whether this appellant is falling within Clause-10 of the list of the industries, not eligible for incentive as per Annexure-III, appended to the Jharkhand Industrial Policy, 2001 or not? (iii) It is an admitted fact that this appellant is manufacturing Behive Hard Coke and Slurry Washed Coal. Thus, this appellant is engaged in coal/ coke screening. Industry established by this appellant is nothing, but, the manufacturing of coal and coke. There can be varieties of coal and coke. We are not concerned with the varieties of coal and coke, but, the fact remains that Behive Hard Coke is also one of the types of coke. Similarly, Slurry Washed Coal is also one of the types of coal screening. Thus, whatever may be the adjective applied by this appellant to his manufacturing, basically, the fact remains that appellant is engaged in an activity, which is itself an industrial activity, pertaining to coal/ coke screening. Adjective, applied by this appellant to the coal as well as to the coke, does not extinguish the basic character of coal/ coke. Hence, this appellant is covered by Clause-10 of Annexure-III, appended to the Jharkhand Industrial Policy, 2001. These aspects of the matter have been properly appreciated by the learned Single Judge while deciding W.P.(C) No. 4809 of 2004 vide judgment and order dated 29.06.2016. (iv) Much has been argued by the counsel for the appellant on Clause-37 of the Jharkhand Industrial Policy, 2001. In fact, Clause-37 is not applicable to the facts of the present case. Clause-37 has been enacted for altogether another purpose. Clause-37 prescribes publication of the notification for withdrawal of the incentives. (iv) Much has been argued by the counsel for the appellant on Clause-37 of the Jharkhand Industrial Policy, 2001. In fact, Clause-37 is not applicable to the facts of the present case. Clause-37 has been enacted for altogether another purpose. Clause-37 prescribes publication of the notification for withdrawal of the incentives. In the facts of the present case, there is no question of withdrawal of incentive whatsoever arises because withdrawal presumes that initially industry was entitled to the incentive. In the facts of the present case, as stated hereinabove, this appellant (original petitioner) was not entitled to incentive, as per item No. 10 of Annexure-III, appended to the Jharkhand Industrial Policy, 2001. Jharkhand Industrial Policy, 2001 is at Annexure-7 to the memo of this Letters Patent Appeal. (v) Counsel appearing for the appellant has relied upon the decisions, but, looking to the peculiar facts of the present case that, (a) this appellant from the very inception of his industry is manufacturing typical types of coal and coke, which are named by this appellant as Behive Hard Coke and Slurry Washed Coal; (b) by applying any adjective, nature of the basic manufacturing never changes. It remains coke/ coal screening industry; (c) if any industry has been established for coal/ coke screening, the same is not eligible for incentives under the Jharkhand Industrial Policy, 2001, as per Serial No.10 or Item No.10 of Annexure-III, appended to the Jharkhand Industrial Policy, 2001; (d) In the case of similarly situated another industry viz. M/s Aakash Coal Industry (Pvt.) Ltd.,similar treatment has been given by the State of Jharkhand, which is at Annexure-6/1. These facts make the present case different from the facts of the case, upon which reliance has been placed by the counsel for the appellant and hence, ratio decidendi in those cases are not applicable to the facts of the present case. 5. As a cumulative effect of the aforesaid facts and reasons, no error has been committed by the learned Single Judge while deciding W.P.(C) No. 4809 of 2004 vide judgment and order dated 29.06.2016. We see no reason to take any other view than what has taken by the learned Single Judge. 6. This Letters Patent Appeal is, hereby, dismissed.