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2019 DIGILAW 517 (CAL)

Purajit Bakshi Gupta v. Union Of India

2019-04-23

ABHIJIT GANGOPADHYAY

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JUDGMENT : Abhijit Gangopadhyay, J. The petitioner is the sole proprietor of one Fruit Processing Works (Tea Division) who applied for subsidy under 'Tea Quality Up-gradation and Product Diversification scheme". Such application was made in the accounting year 2014-2015. The application was made to Tea Board at Jalpaiguri office on 5th January, 2015. This was a scheme under the 11th plan of this Country. 2. As the application for subsidy has been rejected by the Tea Board the writ application is filed for a direction upon the respondent to withdraw and or rescind the letter dated 10th October, 2017 and for a direction on the respondents to act strictly in terms of QUPD scheme-A/C 2014-2015 and to act in terms of the approval letter 6th January, 2015; These are the main prayers in the writ application (application, in short, hereafter). 3. The facts as have been stated in the writ application, in brief, are as follows: 4. On 5th January, 2015 the petitioner made an application for the subsidy for purchasing a machine namely Colour Shorter, model AC-4, camera-4096, and channel 256-2 state (hereinafter referred to as the said machine). In the Application Form the price of the machine was shown as Rs. 60 Lakh. 5. Acknowledging the application of the petitioner dated 05.01.2015 Tea Board's Jalpaiguri office by its letter dated 06.01.2015 intimated the petitioner that he might procure the machine as mentioned in the said letter of Tea Board at his own risk without any financial commitment from the Tea Board at that stage. 6. In or around 26th March, 2015 the petitioner purchased the machine by paying Rs. 69,30,000/- including Tax. After receiving the said machine the petitioner on 27th March, 2015 requested Tea Board's office at Jalpaiguri to fix up a date for inspecting the machine. 7. The petitioner has stated that the inspection was carried out on 28.04.2015. 8. As the subsidy amount being Rs.17,32,500/- was not paid to the petitioner till September 2017 he sent a notice to the Chairman of Tea Board of India and to the Deputy Director and Tea development officer of Tea Board of India at Siliguri. 9. In reply, Tea Board intimated him by letter dated 9th October, 2017 that on scrutiny of application and document, the application was submitted after the "effective date of 12th plan scheme i.e. 10.12.2014". 9. In reply, Tea Board intimated him by letter dated 9th October, 2017 that on scrutiny of application and document, the application was submitted after the "effective date of 12th plan scheme i.e. 10.12.2014". In the said letter of Tea Board it was also intimated that his application was not in conformity with the 12th plan scheme guidelines and the application under "'Tea Quality Up-gradation and Product Diversification scheme" was found not to be eligible for granting of subsidy as per the scheme guidelines and the same was treated as cancelled. 10. The petitioner has made out his case on the basis of the letter of the Tea Board dated 6th January, 2015 whereby receipt of the application of the petitioner dated 5th January, 2015 was acknowledged. According to the petitioner this was an approval letter of Tea Board for purchasing the said machine and after giving such approval letter the application cannot be cancelled by Tea Board by letter dated 9th October 2017. 11. The respondent No. 2 and 3 by filing affidavit-in-opposition have stated that 11th plan period was from 1st April, 2007. The scheme under the 11th plan period was extended up to 30th October, 2014. The communication of Tea Board dated 6th January 2015 issued to the applicant was of a usual nature wherein it was clearly intimated that no financial commitment was being made. Government of India informed the Tea Board on or about 4th March 2015 that the 12th plan scheme came into force with effect from 10.12.2014 and till 4th March 2015 Tea Board was not in a position to know that approval had been accorded to the 12th plan scheme by Cabinet Committee on and from 10th December 2014. It has further been stated by the respondent that Cabinet decision does not ordinarily reach an organisation like Tea Board as a decision arrived at by the Union Cabinet at the highest level is not ordinarily circulated to all and sundry. The validity period of 11th plan scheme was lost with effect from 10th December 2014 but the Tea Board came to know about such information only in the March of 2015 upon the receipt of the communication dated 4th March 2015. The validity period of 11th plan scheme was lost with effect from 10th December 2014 but the Tea Board came to know about such information only in the March of 2015 upon the receipt of the communication dated 4th March 2015. It has further been stated by the respondents that the 'no objection' dated 06.01.2015 does not confer on the applicant a right to receive subsidy and such a letter on the part of the Tea Board is not binding on the Board if the applicant is subsequently found ineligible for subsidy due to other reasons for which the application may also be rejected. Commitment of the Board becomes binding only after issuance of a sanction letter by the respondent's sanctioning and disbursing office. The respondents have referred to a Clause in the subsidy scheme of 2011 in this respect under the heading 'no objection' certificate which is quoted hereinbelow: "Immediately after establishing the essentiality of the machinery items covered in the application under consideration, the concerned field office shall issue a No objection Certificate to facilitate the applicant to proceed with the placement of orders for procurement of the applied item(s). The NOC, so issued, shall not be binding on the Board, if the applicant was subsequently, found ineligible for subsidy due to other reasons to be specified by the Board in writing. The commitment of the Board would become binding only after issuance of approval-cum-sanction letter by the respective sanctioning and disbursing office viz. 1.Office of the Executive Director at Guwahati for the gardens/factories/blending and packaging units located in North Eastern Region including Sikkim, 2. Office of the Executive Director at Coonoor for entire Southern India and Head Office in Kolkata for rest of the areas". (Emphasis mine). 12. This Clause is found in the scheme of the 11th Plan period. It has been annexed in the affidavit-in-opposition of the respondents. The respondents have further stated that the writ petitioner's application was made at a point of time when there was a transition period of 11th Plan period and the 12th Plan period and in the absence of the appropriate communication to Tea Board it was of the view that 11th Plan scheme was in vogue and accepted and acted on such an application and merely issued a no objection certificate. Just because of no objection certificate subsidy was not required to be disbursed by the Tea Board and no enforceable right of the writ petitioner was infringed by the answering respondent. 13. On perusal of the pleadings and after hearing and considering the submissions of the parties I find that the petitioner applied for 'Tea Quality Up-gradation and Product Diversification scheme", (the scheme, in short, hereafter), it was the scheme for 11th Plan period which was effective from 1st April, 2007 to 31 March 2012. The respondents have fairly submitted that the 11th Plan scheme had lost its force came to their knowledge on 4th March 2015. The application for the subsidy under the above scheme, made by the petitioner, was for the 11th plan Period scheme and not under the 12the plan period scheme. This is an admitted position. 14. From the supplementary affidavit filed by the petitioner it is found that the Government of India approved the 'Tea Quality Up-gradation and Product Diversification scheme" for implementation during 12th five year plan (2012-2017) by letter dated 12.12.2014. 15. Therefore, when the petitioner filed its application for subsidy on 5th January 2015, the scheme of 11th Plan period was not in force. 16. The name of the scheme under 11th Plan period was 'Tea Quality Up-gradation and Product Diversification scheme". 17. The name of the scheme under 12th plan as appears from annexure 14 of the supplementary affidavit filed by the petitioner was "Tea Development and Promotion Scheme". 18. From the said document being Annexure P-14 disclosed by the petitioner himself it is found that the Government of India conveyed decision of approval for 'Tea Quality Up-gradation and Product Diversification scheme" on 12th December, 2014. Thus the 11th plan scheme was, no doubt, came to an end before 12th December 2014. 19. Therefore, when the petitioner filed the application for the subsidy under 11th Plan scheme, i.e. on 5th January, 2015 the 11th Plan scheme was not in existence. 20. Respondents' contention that the no objection letter shall not be binding on the Board if the application was subsequently found ineligible for subsidy due to other reasons cannot also be brushed aside as there is truly such a Clause in the scheme under 11th Plan. 20. Respondents' contention that the no objection letter shall not be binding on the Board if the application was subsequently found ineligible for subsidy due to other reasons cannot also be brushed aside as there is truly such a Clause in the scheme under 11th Plan. The Clause has been quoted hereinabove, wherefrom it is evident that on happening of what event the commitment of the Board would become binding, has been mentioned in the said Clause: it is only after issuance of Approval-Cum-Sanction letter by the respondent's sanctioning and disbursing office. In respect of the application of the petitioner for subsidy under the 11the Plan scheme there was no question at all for issuance of such Approval-Cum-Sanction letter as the application was made when the scheme under the 11th Plan period was not in existences. 21. The petitioner has tried to make out a case that in the scheme under the 12th Plan there was provision for 11th plan pending cases (vide page 37 of the supplementary affidavit). The petitioner cannot get any advantage out of that because his application was not an application under 11th Plan scheme. It was filed after expiry of the 11th Plan scheme. 22. The petitioner has also tried to make out a case of mala fides which has been denied and disputed by the respondent. 23. Regarding mala fides I refer the case of State of Bihar -versus- P.P. Sharma, (1992) Supp1 SCC 222, in that case the Supreme Court has discussed the meaning of mala fides which is as follows: "Mala fides" means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. The administrative action must be said to be done in good faith, if it is in fact done honestly, whether it is done negligently or not. An act done honestly is deemed to have been done in good faith. An administrative authority must, therefore, act in a bona fide manner and should never act for an improper motive or ulterior purposes or contrary to the requirements of the statue, or the basis of the circumstances contemplated by law, or improperly exercised discretion to achieve some ulterior purpose. An administrative authority must, therefore, act in a bona fide manner and should never act for an improper motive or ulterior purposes or contrary to the requirements of the statue, or the basis of the circumstances contemplated by law, or improperly exercised discretion to achieve some ulterior purpose. The determination of a plea of a mala fides involves two questions, namely (i) whether there is a personal bias or an oblique motive, and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power". 24. No such case of mala fides have been made out by the petitioner and no element of mala fides is present in this case for which allegation can be made against the petitioner. In support of his case the petitioner has also relied upon the following Judgments: (i) AIR 1979 SC 621 (Motilal Padampat Sugar Mills Co.) and has put much emphasis on the equitable principle of promissory estoppel. Two observations made by the Supreme court in this respect in the said judgment are required to be quoted: From paragraph - 7. "It is the first principle upon which all Courts of Equity proceed, that if parties who have entered into definite and distinct terms involving certain legal results ......afterwards by their own act or with their own consent enter upon a course of negotiation which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced, or will be kept in suspense, or held in abeyance, the person who otherwise might have enforced those rights will not be allowed to enforce them where it would be inequitable having regard to the dealings which have thus taken place between the parties". From paragraph - 8. From paragraph - 8. "The true principle of promissory estoppel, therefore seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective whether there is any pre-existing relationship between the parties or not". 25. In this respect I say that no promise to pay subsidy was made to the petitioner by the respondent by issuance of the letter dated 6th January 2015 which is evident, first, from the letter itself where it is specifically written "you may procure machinery as mentioned below at your own risks without any financial commitment from the Tea Board at this stage" and, second, from the Clause of 'no objection' as appears from Annexure R-1 of the affidavit-in-opposition of the respondents (which has already been quoted above) wherefrom it appears that the stage of commitment was not reached by issuing the said letter dated 6th January, 2015. 26. On the other hand, from the letter of the petitioner's legal advisor dated 22 September, 2017 (vide page 93-95 of the writ application) it is found that from the first paragraph thereof that the market demanded cleaner variety of Teas from the petitioner. Therefore, it was the petitioner's own business development which induced him to purchase the said machine. It was not the scheme of 11th Plan which induced him to file the application for subsidy. Thus there was no such dealing that took place between the parties for which a seasoned businessmen like the petitioner will alter his position by payment of 3/4th of the machine's price. The machine was required by him and that is why he purchased the machine and in the course of his business he tried to get some subsidy benefit if available under the scheme. The machine was required by him and that is why he purchased the machine and in the course of his business he tried to get some subsidy benefit if available under the scheme. As Tea Board was not in a position to give him the subsidy as it cannot violate the Cabinet decision of expiry of the scheme, by entertaining an application after the scheme's expiry, Tea Board cannot be blamed even if it made the mistake of accepting the application. (ii) The petitioner has also relied upon a judgment reported in (Punjab Communication limited -versus- Union of India and Ors, (1999) 4 SCC 727 ). This judgment (paragraph 27) has been placed to show that the petitioner had a legitimate expectation that he will not be deprived of some benefit or advantage about which he has received assurance from decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. 27. Here, there is a presupposition of receiving some assurance but in the petitioner's case there was no assurance which is evident from the letter of the Tea Board dated 6th January, 2015 (relevant portion whereof has been quoted above) and also the Clause as to letter of approval in the scheme of the 11th Plan (this has also been quoted above). (iii) The petitioner has also relied on a judgment reported in (Bally Jute Company Limited - versus- Director of Industries, West Bengal and Ors, (2012) 4 CalLT 439). This case has been cited in support of his submission as to when promissory estoppel can arise. 28. The principle of promissory estoppel has already been discussed above and I have hold as to why the said principle cannot be made application in the present case. When there is no promise and no real alteration of position of a party to his detriment, promissory estopple is not attracted. 29. One case upon which the respondent has placed reliance is reported in (1993) 1 SCC 71 . This judgment has been relied upon by the respondent to show that a bona fide decision of the public authority (determined in larger public interest) would satisfy the requirement of non arbitrariness and withstand judicial scrutiny. Nobody will dispute the above principle laid down by the Hon'ble Supreme Court. This judgment has been relied upon by the respondent to show that a bona fide decision of the public authority (determined in larger public interest) would satisfy the requirement of non arbitrariness and withstand judicial scrutiny. Nobody will dispute the above principle laid down by the Hon'ble Supreme Court. There was no situation in the present case giving rise to legitimate expectation of the petitioner. 30. This judgment of the Supreme Court lends support to the petitioner's case as to bona fide decision. I have already discussed as to the action of the respondent which cannot be stated as a decision which suffers from mala fides. 31. The next case relied upon by the respondents is reported in 2010 (4) SCC 192 for the proposition (vide paragraph 34) that the burden to prove the charge of mala fides is always on the person who moves the Court for invalidation of the act of the State and /or its agency and instrumentalities on the ground that the same is vitiated due to mala fides and the Courts should resist the temptation of drawing dubious inferences on the basis of vague and bald allegation or inchoate pleadings. In this case the petitioner has failed to discharge such burden to prove the charge of mala fides. 32. The next judgment relied upon by the respondents is reported in 2011 (1) SCC 236 . This has been placed by the respondent for the proposition of law that a person who claims exemption or concession has to establish that he is entitled to that exemption or concession. 33. On the basis of discussions made above I hold that the petitioner has not been able to establish that he is entitled to the concession being the subsidy. His application was beyond the scheme of 11th Plan and on this sole ground the petitioner cannot show his entitlement to the subsidy. Further the respondent has said that the application for subsidy made by the petitioner was accepted by the Tea Board but it was not within their knowledge that the life time of the scheme under 11th Plan had expired. The petitioner has not seriously challenged this statement made on oath by the respondent. I also do not find any reason to disbelieve such statement on oath and therefore, I hold that in no way the petitioner can establish that he is entitled to the concession. The petitioner has not seriously challenged this statement made on oath by the respondent. I also do not find any reason to disbelieve such statement on oath and therefore, I hold that in no way the petitioner can establish that he is entitled to the concession. Further by the letter dated 6th January 2015 of the Tea Board, no assurance was given to the writ petitioner and the writ petitioner while submitting the application for subsidy under the scheme of 11th Plan has clearly stated in his letter dated 5th January, 2015 (at page 64 of the writ application) that he read and understood all the terms and conditions of the scheme and he agreed to abide by all the terms and conditions. One of such terms was relating to no objection certificate (which has been quoted above) and the petitioner knew about that. So, the petitioner knew that there was neither any assurance nor any commitment on the part of the Tea Board for giving him the subsidy. 34. For the reasons as aforesaid I hold that the petitioner does not have any case for getting the subsidy and Tea Board has not made any mistake in rejecting the petitioner's application dated 5th January, 2015 and for the reasons as aforesaid this writ application is dismissed. No costs.