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2024 DIGILAW 128 (GAU)

Sri Shyam Cold Storage v. Union of India

2024-02-06

DEVASHIS BARUAH

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JUDGMENT : DEVASHIS BARUAH, J. 1. The instant writ petition has been filed by the petitioner seeking a writ for setting aside and quashing the letter bearing No. NHB/IPA-Sri Shyam Cold Storage/2018-19 dated 02.05.2018 as well as the letter bearing No. NHB/IPA/18AAS/OCS/000015/2018-19 dated 01.08.2018 and further a declaration that the petitioner is entitled to either In Principle Approval (IPA) for construction of the cold storage under NHB’s new scheme “Capital Investment Subsidy Scheme for construction/expansion/modernization of cold storage and storages for horticultural produces” or “Letter of Intent” (LOI) as per the earlier scheme as on 30.03.2017 and further seeking a direction that the In Principle Approval as per the new scheme or the Letter of Intent as per the old scheme be issued to the petitioner. 2. The facts involved in the instant case is that the petitioner which is a proprietorship firm on coming to learn about the various schemes of the National Horticulture Board (NHB) decided to open up a cold storage with storage capacity of 11000 MT for storage of vegetables and fruits at Palashbari Road, Village-Sorapara, Mouza-Chayani of Palashbari Revenue Circle. In that regard, the petitioner firm had approached the respondent authorities and Operational Guidelines were issued to the petitioner firm for the project. It is claimed by the petitioner that the petitioner firm changed its financial position and applied for term loan from the Punjab National Bank, Fancy Bazar Branch. The term loan was sanctioned on 09.03.2017 for an amount of Rs. 600 lakhs. It is further stated that the petitioner thereupon filed an application for obtaining the Letter of Intent (LOI) as per the scheme on 30.03.2017. Along with the said application, the petitioner submitted various documents. The said application however was returned on 03.04.2017 stating inter-alia that various documents were not placed on record. It is not known as to whether the petitioner thereupon pursued on the basis of the said application filed on 30.03.2017, but one aspect is clear from a perusal of the paragraph No. 8 of the writ petition that the petitioner applied afresh on 24.01.2018 which clearly goes to show that the petitioner has foregone the earlier application process. It is not known as to whether the petitioner thereupon pursued on the basis of the said application filed on 30.03.2017, but one aspect is clear from a perusal of the paragraph No. 8 of the writ petition that the petitioner applied afresh on 24.01.2018 which clearly goes to show that the petitioner has foregone the earlier application process. It is however relevant to take note of that on 15.08.2017, a Public Notice was issued by the National Horticulture Board wherein it was mentioned that the said Board has introduced In Principle Approval (IPA) system w.e.f. 01.04.2017 for the credit linked back-ended subsidies scheme on commercial horticulture and cold storage. It was also mentioned that the online applications in prescribed format would be accepted only for new projects where the bank has sanctioned term loan on or after 01.04.2017. Further to that, it was also clearly mentioned that the online applications would be accepted between 01.09.2017 to 30.09.2017. It is also relevant to take note of the Operational Guidelines for Capital Investment Subsidy Scheme for construction/ expansion/modernization of cold storage and storages for horticulture in relation to the new scheme. The said Operational Guidelines is a part of Annexure-III to the writ petition. In terms with the said Operational Guidelines, it was mentioned that from 01.04.2017, In Principle Approval is mandatory for availing financial assistance under credit linked back-ended subsidy schemes of NHB. Further to that, it was also mentioned that it was mandatory to submit the online IPA in the prescribed format available on Board’s website and with the online application, it was made necessary to upload copy of detailed term loan sanction letter of Bank/FI (In Principle Sanction Letter/Bank Consent letter not accepted) issued on or after 01.04.2017 for a new project/activity and a copy of the DD as proof of payment of application fee, in case payment is not made online. Therefore, from a perusal of Annexure-III to the writ petition it is clear that to avail under the new scheme, the sanctioned term loan has to be on or after 01.04.2017 and the same also to be done within the period of 01.09.2017 to 30.09.2017. It is also clearly mandated that in order to avail the credit linked back-ended subsidy, the In Principle Approval was mandatory. 3. It is also clearly mandated that in order to avail the credit linked back-ended subsidy, the In Principle Approval was mandatory. 3. Be that as it may, the petitioner who applied on 24.01.2018 under the new scheme, its application was rejected vide the communication dated 02.05.2018 on the grounds that the petitioner’s term loan was sanctioned prior to 01.04.2017 and secondly on the ground that the petitioner did not apply within the period from 01.09.2017 to 30.09.2017. This communication dated 02.05.2018 has been put to challenge in the instant proceedings. Further to that, on 01.08.2018, the Deputy Director of National Horticulture Board informed the Chief Manager of the Punjab National Bank that the petitioner was not entitled to the subsidy on the ground that promoter of the petitioner neither got the Letter of Intent from the National Horticulture Board nor got online registered with NHB upto 30.09.2017 for claim of direct subsidy without availing LOI from NHB. This communication has been impugned in the instant writ petition. 4. Before further proceeding, this Court finds it very pertinent to take note of another Public Notice which was issued on 04.09.2017 which has relevance to the impugned communication dated 01.08.2017. The said Public Notice dated 04.09.2017 was issued thereby giving an additional opportunity to those units who had availed term loan on or before 30.04.2016 and had not obtained Letter of Intent from NHB. Under such circumstances, those applicants have been given a window to register themselves with NHB on or before 30.09.2017 and fulfill all the eligibility criteria of the Operational Guidelines of respective scheme. It is also admitted that the petitioner did not avail such opportunity as was granted vide the Public Notice dated 04.09.2017. 5. Be that as it may, the petitioner being aggrieved by the impugned communications dated 02.05.2018 and 01.08.2018, has approached this Court seeking the reliefs mentioned hereinabove. 6. The instant writ petition was filed on 12.10.2018 and this Court vide an order dated 02.11.2018 had issued notice. The record reveals that an affidavit-in-opposition has been filed by the respondent Nos. 2 to 5. In the said affidavit-in-opposition, various preliminary objections were taken as regards the maintainability of the writ petition. 6. The instant writ petition was filed on 12.10.2018 and this Court vide an order dated 02.11.2018 had issued notice. The record reveals that an affidavit-in-opposition has been filed by the respondent Nos. 2 to 5. In the said affidavit-in-opposition, various preliminary objections were taken as regards the maintainability of the writ petition. Apart from that, it was mentioned that the National Horticulture Board was setup by the Government of India as an autonomous body with a mandate to promote the integrated development of horticulture and to help in coordinating, stimulating and sustaining the production and processing of fruits and vegetables and also to establish a sound infrastructure with special emphasis on post-harvest management and cold chain to reduce post harvest losses. For the accomplishment of the said objectives, the National Horticulture Board, provides assistance by way of subsidy under various schemes prescribed for the purpose to facilitate the implementation of cold storage projects which fulfilled the prescribed criteria of the operational guidelines of the scheme, one of such scheme being “Capital Investment Subsidy Scheme for construction/ expansion/modernization of Cold Storage/Storages for Horticultural Produce.” It has also been mentioned that the said scheme for grant of Capital Investment Subsidy is applicable for setting up of those cold storage projects for horticulture crops which are implemented as per the scheme guidelines and in conformity with the prescribed technical specifications. It was mentioned that the petitioner submitted an online application with the respondent No. 2 on 24.01.2018 for seeking issuance of In Principal Approval for setting up of cold storage for capacity of 11000 MT under the general category. The hard copy of the said application was received on 05.02.2018 along with prescribed application fee and enclosing a copy of the term loan sanctioned letter dated 09.03.2017 issued by the financing bank, sanctioning term loan of Rs. 600.00 lakhs for the petitioner's cold storage project with project cost Rs. 910.00 lakh for creation of 11000 MT capacity. It was also mentioned that as per the documents submitted by the petitioner, the lending bank disbursed the term loan during the period from 26.05.2017 to 07.02.2018. However, as per the Operational Scheme Guidelines, the National Horticulture Board would consider only those proposals where term loan was sanctioned on or after 01.04.2017. 910.00 lakh for creation of 11000 MT capacity. It was also mentioned that as per the documents submitted by the petitioner, the lending bank disbursed the term loan during the period from 26.05.2017 to 07.02.2018. However, as per the Operational Scheme Guidelines, the National Horticulture Board would consider only those proposals where term loan was sanctioned on or after 01.04.2017. However, as the term loan was sanctioned on 09.03.2017 and the same was disbursed to the petitioner during the period from 26.05.2017 to 07.02.2018, and therefore, the petitioner was not covered under the scheme of the respondent-National Horticulture Board. Further to that, it was also mentioned that the Government vide its Circular dated 28.03.2017 had changed its policy of issuance of LOI and introduced a new system of issuing In Principle Approval which would only be issued after sanction of the term loan from the financing bank and also after getting technical scrutiny of the project cleared by a technical expert which was mandatory for consideration of any proposal under Scheme No. 2 of the National Horticulture Board. It was also mentioned that the National Horticulture Board had issued a Public Notice on 15.08.2017 informing the general public about submitting of the online applications within the period from 01.09.2017 to 30.09.2017. However, the petitioner did not apply during that window. 7. In the backdrop of the above pleadings, this Court has also heard the learned counsel for the parties. Mr. G.N. Sahewalla, the learned senior counsel appearing on behalf of the petitioner submitted that as per the Operational Guidelines which was prevalent at the time the petitioner submitted its first application on 30.03.2017, there was no requirement for a Letter of Intent for the purpose of getting the subsidy. In that regard, during the course of hearing, the learned senior counsel had placed the Operational Guidelines issued by the National Horticulture Board during the month of September, 2014 which is kept on record and marked with the letter “X.” It is therefore the submission of the learned senior counsel for the petitioner that the petitioner was entitled to the subsidy taking into account that the petitioner’s term loan was issued prior to 01.04.2017. He further submitted that the petitioner did not come within the ambit of new scheme which was made effective from 01.04.2017. He further submitted that the petitioner did not come within the ambit of new scheme which was made effective from 01.04.2017. The learned senior counsel further submitted that there was no requirement of the Letter of Intent for the grant in subsidy in question. In that regard, the learned senior counsel for the petitioner drew the attention of this Court to Clause-9 of Chapter-1 of the Operational Guidelines issued in the month of September, 2014. The learned senior counsel further submitted that as the petitioner’s term loan was sanctioned on 09.03.2017 irrespective of the petitioner applying as per the new scheme, the petitioner is entitled to the subsidy in terms with the old scheme prevalent when the petitioner submitted its application on 30.03.2017. 8. Per contra, Mr. R. Sarma, the learned counsel appearing on behalf of the respondent Nos. 2 to 5 submitted that as per the new scheme, there was a requirement of an In Principle Approval for getting the benefit of the subsidy. For the purpose of claiming the said In Principle Approval, it is required that the bank had sanctioned the term loan on or after 01.04.2017 and the application had to be made between 01.09.2017 to 30.09.2017. Specific reference was made to Clause 3 of the Operational Guidelines for Capital Investment Subsidy Scheme. The learned counsel for the respondents therefore submitted that the petitioner admittedly applied on 24.01.2018 and the term loan was sanctioned on 09.03.2017 for which the petitioner was not entitled to as per the new scheme. The learned counsel for the respondents further submitted that as regards the old scheme, the petitioner though applied on 30.03.2017, but he did not submit the necessary documents for which his application was returned on 03.04.2017 itself. The petitioner thereupon did not agitate the matter of returning the said application and refunding the application amount of Rs. 10,000/-. Rather, the petitioner on 24.01.2018, applied for the new scheme. The learned counsel for the respondents therefore submitted that the petitioner having foregone its rights in respect to the earlier scheme and the new scheme being no applicable, the petitioner would not be entitled to any subsidy. 10,000/-. Rather, the petitioner on 24.01.2018, applied for the new scheme. The learned counsel for the respondents therefore submitted that the petitioner having foregone its rights in respect to the earlier scheme and the new scheme being no applicable, the petitioner would not be entitled to any subsidy. Further to that, it is also the submission of the learned counsel appearing on behalf of the respondents that the perusal of the reliefs claimed for as well as the contents of the writ petition, it would show that the petitioner had only sought for the grant of the In Principle Approval or the LOI, but there is no relief sought for as regards the subsidy. The learned counsel further submitted that the petitioner even did not take the opportunity in terms with the Public Notice dated 04.09.2017 whereby the National Horticulture Board had granted an additional opportunity to those persons who did not apply as per the old scheme. 9. This Court has duly perused the materials on record and also duly noted the respective submission of the parties. From the materials on record and the submission made by the learned counsels for the parties, it is the opinion of this Court that there is no infirmity with the communication dated 02.05.2018 in as much as the petitioner’s term loan was sanctioned on 09.03.02017 and the petitioner did not apply within the window provided, i.e. w.e.f. 01.09.2017 to 30.09.2017. Under such circumstances, the question of interference with the impugned order dated 02.05.2018 does not arise. 10. This Court has also taken note of the impugned communication dated 01.08.2018 which rejected the request for joint inspection report on the ground that the petitioner has neither got the Letter of Intent from the National Horticulture Board nor got online registered with the National Horticulture Board upto 30.09.2017 for claim of direct subsidy without availing LOI from the National Horticulture Board. Though it is case of the petitioner that the petitioner applied on 30.03.2017, but the said application is an application for issuance of the LOI, which is apparent on the reading of the said application itself. The said application was however rejected on 03.04.2017 on the ground that various documents were not placed and was returned. The petitioner did not challenge the said rejection of the application for issuance of LOI. The said application was however rejected on 03.04.2017 on the ground that various documents were not placed and was returned. The petitioner did not challenge the said rejection of the application for issuance of LOI. The petitioner also did not take steps in pursuance to the Public Notice dated 04.09.2017, rather on 24.01.2018, the petitioner applied as per the new scheme. Under such circumstances, the question of interfering with the decision of the respondent authorities in not issuing the LOI to the petitioner does not arise. 11. Be that as it may, a question duly arises as to whether the petitioner would be entitled to the subsidy claim even without the LOI in as much as it is the specific submission of the learned counsel for the petitioner that LOI is not mandatory for granting the benefit of the subsidy. This Court had duly perused the Operational Guidelines as notified in the month of September, 2014. It has two Chapters. The first Chapter relates to the guidelines for making application for assistance under the Commercial Horticulture Scheme-1 and the Cold Storage Scheme-2. Chapter-2 is the guidelines for making subsidy claims and release of subsidy under the Commercial Horticulture Scheme, Scheme-1 and the Cold Storage Scheme, Scheme-2 of the National Horticulture Board. Not a single document is placed which shows that the petitioner applied in terms with Chapter-2 seeking the subsidy as per the guidelines issued. 12. This Court had also put a pointed query upon the learned senior counsel for the petitioner as to whether the petitioner applied in terms with Chapter-2 of the Operational Guidelines issued in the month of September, 2014. The learned senior counsel submitted that he has no instructions in that regard. Under such circumstances, this Court is of the opinion that there is no infirmity in the communication dated 01.08.2018 as the same was issued in terms with the Operational Guidelines of the Schemes. 13. It is also relevant to take note of that a perusal of the reliefs sought for would show that the petitioner did not seek any relief as regards grant or disbursement of subsidy. The presumption that can be drawn as to why such relief was not sought is for the reason that the petitioner did not file any such application as required in terms with Chapter-2 of the Operational Guidelines as it stood in the month of September, 2014. 14. The presumption that can be drawn as to why such relief was not sought is for the reason that the petitioner did not file any such application as required in terms with Chapter-2 of the Operational Guidelines as it stood in the month of September, 2014. 14. In that view of the matter as this Court finds no merits in the instant writ petition, the same stands dismissed. No costs.