Allahabad High Court
Vacmet India Ltd. Thru. Its Authorised ... vs State Of U.P. Thru. Its Cheif Secy. Cum ... on 22 March, 2018
Author: Prashant Kumar
Bench: Prashant Kumar, Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Judgment reserved on: 30.01.2018 Judgment delivered on: 22.03.2018 Court No. - 5 (1) Case :- MISC. BENCH No. - 27962 of 2016 Petitioner :- Vacmet India Ltd. Thru. Its Authorised Signatory & Another Respondent :- State Of U.P. Thru. Its Cheif Secy. Cum Infrastructure & Counsel for Petitioner :- Mohd.Altaf Mansoor Counsel for Respondent :- C.S.C.,Gaurav Mehrotra (2) Case :- MISC. BENCH No. - 26780 of 2016 Petitioner :- Sukhbir Agro Energy Ltd.,Thru. Its Authorized Signatory Respondent :- State Of U.P. Thru. Chief Secretary,Govt. Of U.P. & 6 Others Counsel for Petitioner :- Karunesh Singh Pawar Counsel for Respondent :- C.S.C.,Gaurav Mehrotra (3) Case :- MISC. BENCH No. - 27216 of 2016 Petitioner :- Tata Motors Ltd.Thru.Authorised Signatory Respondent :- State Of U.P Thru.Prin.Secy./Commissioner Infrastructure & Ors Counsel for Petitioner :- Mudit Agarwal,Shraddha Agarwal Counsel for Respondent :- C.S.C,Dr L P Mishra,Govrav Mehrotra (4) Case :- MISC. BENCH No. - 23240 of 2016 Petitioner :- Bindal Papers Ltd. Thru. Director Mayank Bindal Respondent :- State Of U.P. Thru. Prin. Secy. Infrastructure & Industrial Counsel for Petitioner :- Karunesh Singh Pawar Counsel for Respondent :- C S C,Gaurav Mehrotra (5) Case :- MISC. BENCH No. - 21935 of 2016 Petitioner :- M/S Ultratech Cement Ltd Unit Aligarh Cement Works Kasimpur Respondent :- State Of U.P Thru Secy Industries Lko & Ors Counsel for Petitioner :- Rahul Agrawal,Vaibhav Pandey Counsel for Respondent :- C.S.C,Gaurav Mehrotra (6) Case :- MISC. BENCH No. - 19575 of 2016 Petitioner :- K R Pulp & Papers Ltd Thru M.D Madho Gopal Agarwal Respondent :- State Of U.P Thru Prin Secy Infrastructure & Industrial Dev. Counsel for Petitioner :- Karunesh Singh Pawar,Vishwajit Singh Counsel for Respondent :- C.S.C,Gaurav Mehrotra (7) Case :- MISC. BENCH No. - 21103 of 2016 Petitioner :- Gallantt Ispat Limited Thru. Its M.D.Chandra Prakash Agrawal Respondent :- State Of U.P. Thru.Prin.Secy.,Infrastructure & Ind.Dev.&Ors. Counsel for Petitioner :- Karunesh Singh Pawar Counsel for Respondent :- C.S.C.,Gaurav Mehrotra (8) Case :- MISC. BENCH No. - 20181 of 2016 Petitioner :- Jubilant Life Sciences Ltd.Thru Sri Ravindra Kumar Mehta Respondent :- State Of U.P. Thru Prin.Secy.(Industries) Lucknow & Others Counsel for Petitioner :- Vaibhav Pandey,Nikhil Agrawal Counsel for Respondent :- C.S.C.,Gaurav Mehrotra Hon'ble Prashant Kumar,J.
Hon'ble Rajan Roy,J.
(Per Rajan Roy, J.) Heard.
This is a batch of petitions filed by 8 Industrial Units operating in the State of U.P. challenging Government Orders dated 30.06.2016 and 22.09.2016 by which their claim to benefits promised under the Government Order dated 03.08.2007 has been declined allegedly in the teeth of the judgment dated 05.11.2016 rendered by this Court in the earlier round of litigation.
Essentially, the question involved in these writ petitions is whether the judgment dated 05.11.2016 passed in Writ Petition No. 2047(M/B) of 2015; Vacmet India Limited and Anr. Vs. State of U.P. and Ors. and connected matters, created a bar for the State Government in rejecting the claims of the petitioners to subsidies and interest free loan etc., under its policy, for the reasons mentioned therein or not? The interpretation of Government Order dated 03.08.2007 is also an issue involved subject of course to the aforesaid issue. The validity of the Government Orders dated 30.06.2016 and 22.09.2016 is also in question.
Before adverting to these issues a factual history leading to these petitions would be helpful.
In order to off set the flight of industries to the newly created State of Uttranchal and the resultant prejudice in terms of revenue etc., to this State, the Government of U.P. formulated a policy offering subsidies on capital investments and interest free loans etc. to new industrial units which would be established within the State, except Noida and Greater Noida, and, which would invest a minimum of rupees hundred crore with further conditions attached, such as, the requirement of starting commercial production by 31.05.2009 etc. The modalities of the policy were also prescribed. This policy was initiated vide Government Order dated 01.06.2006 which was amended on 23.10.2006 and thereafter on 30.11.2006 and 15.02.2007. The Government Order dated 30.11.2006 contains the details of the policy.
The petitioners herein claim that they acted on the offer extended to them by the State Government as aforesaid and invested more than hundred crore in terms thereof. They, with the exception of M/s Ultratech Cement Ltd., completed the preliminary activities as defined in Clause 2.10 of the Government Order dated 30.11.2016 and also applied for being issued the letters of comfort in terms of Clause 3.2 and other Clauses of the said policy much prior to its cancellation by the Government Order dated 03.08.2007 i.e. on 14.5.2007, 18.1.2007, 27.6.2007, 13.3.2007, 19.3.2007, 10.11.2006 and 7.11.2006. In the case of two of the petitioners i.e. Sukhbir Agro Energy Limited and Gallantt Ispat Limited even the letters of comfort were issued prior to 3.8.2007, whereas, in respect of the rest, they could not be issued prior to 03.08.2007. They were subsequently issued on different dates. As regards M/s Ultratech Cement Ltd., it applied for issuance of letter of comfort after 3.8.2007, i.e. on 14.1.2008 and was issued the same thereafter, but it had completed its preliminary activities prior to 3.8.2007, a fact which has been asserted in paragraphs 26 to 29 of writ petition No.21935 (MB) of 2016, which has not been disputed by the respondents in paras 19,20 and 21 of their counter affidavit.
On 03.08.2007, the State Government rescinded its policy, but, while doing so, it provided that those units in whose favour letters of comfort had been issued and those units which had completed the preliminary activities under the scheme prior to its cancellation on 03.08.2007, they would be extended the benefit of the scheme on completion of conditions of eligibility as per the scheme. Thus, there was a saving clause of sorts, according to which, though the policy dated 01.06.2006, as amended from time to time, was cancelled, the benefits promised thereunder were to continue for those units which fulfilled the conditions mentioned in Paragraph 2 of the aforesaid Government Order dated 03.08.2007.
Thereafter, it appears that several deliberations took place before the High Power committee constituted under Clause 2.7.1 of the Government Order dated 30.11.2006 and, on 01.10.2007, the eligibility and entitlement of the industrial units for being given the benefits in terms of Paragraph 2 of Government Order dated 03.08.2007, including the petitioners herein, was considered and they were held eligible and entitled to the same. The Udyog Bandhu also vide its letter dated 15.01.2008/11.06.2008 informed the petitioners as to their entitlement on the investments made till 31.05.2012 under the Government Order dated 03.08.2007. The Law Department also opined on 22.08.2008 about the eligibility of both types of units that is those which had completed preliminary activities but had not been issued letter of comfort, and those which, in addition, had also been issued letter of comfort. The High Power Committee headed by the Chief Secretary, U.P. in its meeting dated 24.09.2008 also expressed the same view. In pursuance to the decision of High Power Committee, PICUP, the nodal agency, sanctioned and disbursed subsidy. Out of the eleven Industrial Units which had acted upon the policy of the Government, five of them were extended the benefit of subsidy to the tune of about 138 crores. This included the aforesaid two petitioners who had been issued the letters of comfort. The remaining three were also extended these benefits even though they had not been issued the said letters of comfort, but had completed the preliminary activities. This Government Order dated 03.08.2007 was acted upon based on the understanding of its content and meaning as aforesaid.
Details of the petitioners in this regard which are relevant to the case and are admitted to the opposite parties as is evident from the minutes of the High Power Committee dated 04.04.2016 are as under:-
dz0 bdkbZ dk uke o ifj;kstuk LFky D;k dEiuh oknh gS ysVj vkQ dEQVZ tkjh djus dh frfFk dEiuh }kjk izkjfEHkd dk;Zokgh ;kstuk dh lekfIr fnukad 3-8-2007 ls iwoZ dh x;h vFkok ugha forfjr iWwth miknku forfjr voLFkkiuk miknku forfjr ;krk;kr vuqnku dqy forfjr miknku 1 2 3 4 5 6 7 8 9 1 lq[kchj ,xzks ,uthZ fy0] xkthiqj ,oa 'kkgtgkWiqjA gkW 26-02-2007 gkW 9-84 2-62 0-00 12-46 2 oSdesVbf.M;k fy0] eFkqjkA gkW 12-11-2007 gkW 10-06 0-00 0-00 10-06 3 xSysUVbLikr fy0] xksj[kiqjA gkW 17-01-2007 gkW 17-13 7-15 0-00 24-28 4 fcUnyisilZ fy0] eqtQQjuxjA gkW 13-11-2007 gkW 50-72 0-30 0-00 51-02 5 ds0 vkj0 iYi ,.M isilZ fy0] 'kkgtagkiqjA gkW 15-11-2007 gkW 40-36 0-04 0-00 40-40 6 VkVkeksVlZ fy0] y[kuÅA ugha 01-07-2008 gkW 0-00 0-00 0-00 0-00 7 tqfcysUV vkxsZuksfll ¼orZeku esa tqfcysUVlkblsat fy0½] ¼ts0 ih0 uxj½A gkW 01-07-2008 gkW 0-00 0-00 0-00 0-00 8 xzkflelhesaV fy0 ¼orZeku esa vYVªkVsdlhesaV fy0½] vyhxgkW 04-11-2008 gkW 0-00 0-00 0-00 0-00 9 fjef>e bLikr] gehjiqjA ugha 29-12-2008 gkW 0-00 0-00 0-00 0-00 10 ctkt bdks] y[kheiqjA ugha 29-12-2008 gkW 0-00 0-00 0-00 0-00 11 ctkt bdks0] xks.MkA ugha 29-12-2008 gkW 0-00 0-00 0-00 0-00 dqy forfjr /kujkf'k 128-11 10-11 0-00 138-22 It seems that there were some further deliberations and ultimately a Government Order dated 18.11.2011 was issued cancelling the Government Order dated 03.08.2007 with a further stipulation that now any claim for grant of capital subsidy and infrastructure subsidy would not be considered and, pending claims under the earlier policy/ scheme would be rejected. Vide Para 3(3) of the said order it was also mentioned that consequent to the cancellation of the policy and substitution of Valu Added Tax in place of Trade Tax, interest free loan corresponding to Trade Tax and Transport subsidy, which are benefits of a recurring nature, shall also be stopped and any claim under the said heads would also stand cancelled.
This Government Order dated 18.11.2011 was put to challenge in Writ Petition No. 1468(M/B) of 2012; Jubilant Life and Science Limited Vs. State of U.P. and Ors. as also other petitions connected therewith which were decided by a common judgment dated 12.08.2013 by which this Court after noticing the contention of the rival parties, including the plea of promissory estoppel, as also the new industrial policy of the State Government initiated in 2012 allegedly on the same lines as the earlier policy, as well as the contention of the State Government that a Sub-committee of Five Cabinet Ministers had been constituted to consider the matter, disposed of the petitions with a direction to the State Government to revisit the issue and till then not to take any action under the impugned Government Order.
The said judgment was put to challenge before the Supreme Court by means of Civil Appeal No. 2023 of 2015, which was disposed of on 17.02.2015 leaving it open for the Sub-committee of the Government to take a decision as ordered by the High Court and to the petitioners before it to raise their grievance before the said Committee.
In the meantime, it appears that on account of some interim order dated 08.01.2015 having been passed in the aforesaid proceedings before the Supreme Court the State Government had already taken a decision vide Government Order dated 11.02.2015, modifying the earlier Government Order dated 18.11.2011 by making its application subject to the conditions mentioned in Para 6(4) thereof. Certain other decisions were also taken in respect thereof vide Para 6(1) (2) and (3), one of which was that interest free loan having not been granted to any of the industrial units under the earlier policy, therefore, it would not be granted on account of substitution of Trade Tax by a Value Added Tax. Likewise, transport subsidy having not been granted to any of the units under the earlier policy till then, the same would also not be granted. Thus, this decision though before the disposal of the Civil Appeal referred herein above, was substantially in terms thereof.
Being aggrieved by these two Government Orders dated 18.11.2011 and 11.02.2015, the petitioners before us, except Tata Motors Limited, filed writ petitions challenging the said orders. The said writ petitions were decided vide judgment dated 05.11.2015.
By the said judgment, this Court accepted the plea of promissory estoppel as also arbitrariness of the reasons mentioned in the orders impugned before it and quashed the same. While doing so this Court accepted the claim of the petitioners for grant of subsidies under the earlier policy and ordered the disbursement of the capital subsidy, infrastructure subsidy, transportation subsidy and other subsidies, if any, to the petitioners ''forthwith', in terms of the Government Order dated 01.06.2006 read with the Government Order dated 03.08.2007. However, as regards the interest free loan under the earlier policy, the Court, although it accepted the plea of the petitioners and repelled the contention of the opposite parties that Trade Tax Act having been substituted by VAT Act it had materially changed the position requiring the cancellation of the policy, but, observed that the introduction of VAT Act per se as a substitute for Trade Tax Act does not alter the situation ''unless the State Government comes up with any objective consideration so as to point out a supervening public interest like any substantial loss of revenue', therefore, only for this purpose it ordered the State Government to take a fresh decision within three months in the light of observations made in the judgment ''only in relation to the benefits of interest free loan as against the payment of VAT for the period in question', with a further observation- ''any decision on this count which will be on a consideration of the scheme that would bind the commercial department'. Recovery under the said head was put in abeyance till such fresh decision was taken.
Thus, the claim as far as subsidies under the earlier policy was concerned, the same was accepted in toto and its release was also ordered.
Similar petitions were filed by the other petitioners who are before us which were also disposed of in terms of the judgment dated 05.11.2016 and there is no dispute in this regard. Tata Motors Ltd. Did not file any such petition.
Special Leave Petitions filed against the said judgment(s) have been dismissed by the Supreme Court.
Thereafter, several deliberations took place at the level of the High Power Committee headed by the Chief Secretary, U.P., of which the Principle Secretary, Establishment and Industrial Development and its Commissioner were also parties and in fact the same person Shri Atul Kumar Gupta was holding the charge of both the posts. One such meeting took place on 04.04.2016, wherein, the petitioners were found to be eligible for grant of benefits under the policy dated 30.11.2006 in terms of Paragraph 2 of the Government Order dated 03.08.2007, as, they had completed the preliminary activities, even though, some of them had not been issued the letters of comfort as, the two conditions mentioned in Paragraph 2 were understood (and were implemented) as being disjunctive and separate and not conjunctive till a volte face was made after the Legal Remembrancers gave an opinion on 06.06.2016 that the cases had not been properly contested before the High Court and as the judgment dated 05.11.2015 was applicable to all units the judgment had to be complied accordingly, whereupon, a stand was taken in the meeting of the High Power Committee dated 14.06.2016 that Para 2 of the said Government order, in fact, mentioned two conjunctive conditions as was evident from the use of the word ''and' joining the two parts of the said paragraph, therefore, unless both the conditions i.e. completion of the preliminary activities by the ''new units' and issuance of letters of comfort to them were satisfied, the benefits would not be available to them under the said Government Order dated 03.08.2007.
Shorn of unnecessary details suffice it to say that these deliberations ultimately culminated in the Government Order dated 30.06.2016, which has been challenged before us, by which, the claims of the petitioners, except Gallantt Ispat Limited and Sukhbir Agro Energy Limited, regarding the subsidies promised under the earlier policy, were turned down on the ground that the letters of comfort had not been issued to them prior to cancellation of the policy on 03.08.2007, as such, one of the two conditions of the said Government order was not satisfied in their case. As regards interest free loan equivalent to the Trade Tax liability promised under the earlier scheme, the Government Order dated 30.06.2016 stated that a Sub-Committee had been formed by the High Power committee in its meeting dated 14.06.2016 for considering this aspect of the matter, as, the earlier benefit could not be continued in view of the new VAT Act which had replaced the Trade Tax Act, whose report was awaited.
As regards the claim of subsidies etc. for the period after 31.05.2009 i.e. in respect of the additional investments in term of Clause 2.12.2 of Government Order dated 30.11.2016, it was stated that preliminary activities had to be undertaken in terms of the letters of comfort and as the said letters had not been issued in respect of some of the units and in the meantime the policy itself was abolished on 03.08.2007, therefore, there was no question of any ''preliminary activities' in respect of additional investment, especially as, letters of comfort were not issued to the units in respect of the additional investment made by them after 31.05.2009, as every body was aware that the cancellation of the policy was in process. Thus, the said Government order stated that benefit of any additional investment made after 31.05.2009 was not to be granted and such benefit, subject to satisfaction of the Government Order dated 03.08.2007, was to be confined to the period 2006 to 2009.
As regards Gallantt Ispat Limited and Sukhbir Agro Energy Limited, as, the letters of comfort had been issued to them prior to 03.08.2007, therefore, their claim to subsidies was accepted subject to the caveat that these would be limited up to the period 31.05.2009 and not in respect of any additional investment made thereafter. As regards interest free loan their matter was to be considered by the Committee as referred earlier.
With regard to interest free loan the State Government took another decision vide Government Order dated 22.09.2016 acknowledging and accepting the claim of Gallantt Ispat Limited and Sukhbir Agro Energy Limited to the said benefit but only up to 31.05.2009. As regards the others, as the letters of comfort had not been issued to them prior to 03.08.2007, therefore, they were held to be ineligible. Furthermore, the policy dated 30.11.2006 was superseded in so far as it related to grant of interest-free loans and a new policy was introduced according to which though the said benefit was to continue for the purposes of government order dated 3.8.2007, instead of automatic treatment of the Trade Tax due as an interest free loan to be repaid after 7 or 15 years, as the case may be, under the earlier policy, Tax in the form of VAT was required to be paid first as per the VAT Act, 2008, thereafter, the matter pertaining to grant of interest free loan under the policy would have to be processed and the loan would be granted. This new policy was given retrospective effect from 1.6.2006. This was done after the judgment dated 5.11.2015 Being aggrieved by the aforesaid orders these petitions have been filed alleging over reach of the judgment dated 05.11.2015 by the Government which was not only contemptuous and arbitrary, but, impermissible in law.
Principles of estoppel, resjudicata, constructive resjudicata, finality of judgments between parties, were pressed into service by the learned counsel for the petitioners to demonstrate that the impugned actions are untenable in law. The contingencies mentioned in paragraph 2 of Government Order dated 03.08.2007 have been emphasised as being disjunctive and not conjunctive inspite of the use of the word ''and' therein. Much emphasis was laid on the use of the pronoun ''eligible units', twice, in Para 2 of the said Government Order.
Learned counsel for the petitioners have taken us through the judgment dated 05.11.2015 and the voluminous documents on record to support their case. The judgments reported in (1920) 1 K.B. 650; Attorney General Vs. Beauchamp, (1959) 2 Q.B. 350; Regina Vs. OAKES, AIR 1968 SC 1450; Ishwar Singh Bindra and Ors. Vs. State of U.P., (1980) 1 SCC 158; Muncipal Corporation of Delhi Vs. Tek Chand Bhatia, (1986) 2 SCC 512; M. Satyanarayana Vs. State of Karnataka and Anr., (1999) 5 SCC 138; J. Jayalalitha Vs. Union of India and Anr., (1978) 1 SCC 405; Mohinder Singh Gill and Anr. Vs. The Chief Election Commissioner, New Delhi and Ors., (2013) 10 SCC 95; Rashmi Metaliks Limited and Anr. Vs. Kolkata Metropolitan Development Authority and Ors., (2016) 1 SCC 724; State of Punjab Vs. Bandeep Singh and Ors., AIR 1965 SC 1150; Devilal Modi Vs. STO, Ratlam and Others, (2011) 3 SCC 408; M. Nagabhushana Vs. State of Karnataka and Ors., (2014) 11 SCC 744; Shiv Chander More and Ors. Vs. Lieutenant Governor and Ors., (2010) 10 SCC 141; Alka Gupta Vs. Narendra Kumar Gupta, (1977) 2 SCC 88; Lal Chand (Dead) and Ors. Vs. Radha Krishan, (2016) 2 SCC 226; Director General of Foreign Trade and Another Vs. Kanak Exports and Anr., (2016) 6 SCC 766; Manuelsons Hotels Pvt. Ltd. Vs. State of Kerala and Ors., (2014) 4 SCC 186; S.V.A. Steel Re-rolling Mill Ltd. And Ors. Vs. State of Kerala and Ors., (2008) 7 SCC 353; Tamil Nadu Electricity Board and Another Vs. Status Spinning Mills Limited and Another, (2007) 10 SCC 513; S.B. Bhattacharjee Vs. S.D. Majumdar and Ors., AIR 2010 SC 818; Ramchandra Dagdu Sonavane (Dead) by L.Rs. and Ors. Vs. Vithu Hira Mahar (Dead) by LRs. And Ors. were cited by them.
Dr. L.P. Mishra, learned Special Counsel appearing for the State of U.P. vehemently opposed the petitions firstly on the ground that the impugned decisions had been taken in pursuance to the liberty granted by this Court vide judgment dated 05.11.2015, therefore, they are not contrary to it, rather, in consonance with it.
He submitted that the Government Order dated 03.08.2007 was never challenged by the petitioners. According to him the Government Orders dated 18.11.2011 and 11.02.2015 cancelling the said Government order were quashed in their entirety, therefore, whatever benefit was admissible under the said orders are also not admissible to the petitioners.
Secondly, it was his submission that similar liberty was granted with regard to considering the claim to interest free loans and in view thereof, as, on account of the substitution of the Trade Tax Act by a new taxation structure as contained in the VAT Act, 2008, a Government Order dated 22.09.2016 had been issued which did not deny the benefit of interest free loan to the eligible units but only changed its modality i.e. instead of automatically treating the tax liability as an interest free loan payable as per the earlier policy now the Tax had to be actually paid and thereafter the loan would be granted after consideration as per the requisite parameters. In this regard he submitted that the earlier policy was based on the concept of ''Book Transfer' of the ''Tax due' by the Nodal Agency i.e. PICUP to the Trade Tax Department, which was not permissible under the VAT Act, 2008, therefore, he said that this change of policy did not in any manner prejudice the petitioners, especially Gallantt Ispat Limited and Sukhbir Agro Energy Limited.
Furthermore, his third submission was that as far as the other petitioners are concerned, they did not qualify both the conditions mentioned in Para 2 of the Government Order dated 03.08.2007, as, although they had completed the preliminary activities, they had not been issued letters of comfort prior to 03.08.2007, therefore, they were not entitled to grant of any benefit whether it be of subsidies, interest free loan, or any other benefit.
With regard to the benefits claimed in the context of Clause 2.12.2 on the additional investment made after 31.05.2009 he submitted that ''preliminary activities' could only be undertaken in the context of the project cost as mentioned in the letters of comfort, therefore, for any benefit on the additional investment, additional letters of comfort were required to be issued, which were never issued and the policy itself was concluded on 03.08.2007, therefore, there was no question of giving any benefit to any of the petitioners on any additional investment made after 31.05.2009.
On the question of interpretation of Government Order dated 03.08.2007 and whether it was permissible after the earlier adjudication on 05.11.2015, Dr. L.P. Mishra contended that the meaning and purport of the said Government Order and its interpretation was not the subject matter in issue in the earlier round of litigation nor was it considered by the Court, therefore, in view of the liberty granted by the judgment dated 05.11.2015 to consider the matter in terms of the Government Orders dated 01.06.2006 and 03.08.2007, it was open for the State Government to dwell on the meaning of the said Government Order and the said judgment did not create any bar in this regard. For this reason he said that the principles of resjudicata and constructive resjudicata etc. were not applicable nor could these issues be said to have attained finality between the parties.
When he was pointed out the pleadings on behalf of the State in the counter affidavit filed in the earlier round of litigation as also in the Special Leave Petition filed before the Supreme Court, which was diametrically opposite to the meaning now been assigned to the said Government Order, Dr. L.P. Misra contended that mere pleading would not bind the State from taking a different stand rather a correct stand before this Court in these proceedings, as, pleadings by themselves do not constitute a bar in law unless there is a previous adjudication on the issue involved.
It was his submission that grant of subsidy was part of the sovereign functions of the State and no person could claim it as a matter of right, therefore, the State could always change its policy and withdraw the said benefits. As the letters of comfort had not been issued to some of the petitioners by 03.08.2007, therefore, no right had accrued or vested in them. According to him eligibility and entitlement were two different things. The High Power Committee in ordering issuance of letters of comfort after 03.08.2007 acted contrary to Government Orders, therefore, its action did not bind the State Government. Decision of the High Power Committee is not the decision of the State, which in fact is contained in the Government Orders dated 30.06.2016 and 27.09.2016. For the reasons aforesaid he said that there was no question of application of the principle of promissory estoppel in the matter. The State was well within its right to take the decision as impugned herein, which did not suffer from any error.
Dr. Mishra relied upon the authorities reported in (2016)1 SCC 1; Essar Steel Ltd. Vs. Union of India and Ors, (2016) 6 SCC 408; Centre for Public Interest Litigation Vs. Union of India and Ors., (2012) 6 Scc 502; Brij Mohan Lal Vs. Union of India and Ors., (2011) 3 SCC 778; State of Haryana and Ors. Vs. Mahabir Vegitable Oils Private Limited, (2011) 3 SCC 193; Shree Sidbali Steel Limited Vs. State of U.P. and Ors., (2011) 1 Scc 640; Bajaj Hindustan Limited Vs. Sir Shadi Lal Enterprises Limited and Anr., 2004 (22) LCD 1005; Ram Manorath Maurya and Ors. Vs. State of U.P., (2002) 2 SCC 33; Balco Employees Union (Regd) Vs. Union of India, (2001) 3 SCC 635; Ugar Sugar Works Ltd. Vs. Delhi Administration and Ors., (2016) 2 SCC 226; Director General of Foreign Trade and Another Vs. Kanak Export and another, (2002) 3 SCC 711; Association of Industrial Electricity Users Vs. State of A.P. and Ors., (1973) 2 SCC 650; M. Ramanatha Pillai Vs. State of Kerela, (1976) 3 SCC 650; Excise Commissioner U.P., Allahabad and Ors. Vs. Ram Kumar and Ors., (2017) 1 SCC 322; V. Lavanya and Ors. Vs. State of Tamil Nadu represented by its Principal Secretary and Ors.
Shri Gaurav Mehrotra, learned counsel appearing for the Nodal Agency for implementation of the policy i.e. PICUP adopted the arguments of Dr. L.P. Mishra.
We take note of the fact that the PICUP did not file any counter affidavit in rebuttal of the pleadings in the writ petitions.
In the earlier round of litigation the petitioners herein, with the exception of Tata Motors Ltd., had challenged two government orders dated 18.11.2011 and 11.2.2015. Relevant extract of the government order dated 18.11.2011 is as under -
"3. iz'uxr izdj.k esa jkT; ljdkj )kjk lE;d fopkjksijkUr fuEufyf[kr fu.kZ; fy;s x;s gSa %& ¼1½ ;kstuk lekfIr ds laca/k esa 03 vxLr] 2007 esa tkjh fd, x;s 'kklukns'k la[;k & 1994@77@6@07&10 ¼VSDl½@04&Vh0lh0&12 ds va'k Þftu bdkbZ;ksa ds i{k esa *ysVj vkWQ dEQVZ^ fuxZr fd, tk pqds gSa rFkk ftu bdkbZ;ksa us bl ;kstuk ds vUrxZr ykHk ikus ds fy, izkjfEHkd dk;Zokgh ;kstuk dh lekfIr ls iwoZ dj yh gks mUgsa ;kstuk esa ik=rk dh 'krsZ iwjh djus ij ;kstuk dk ykHk feysxkß dks fujLr fd;k tk;sA ¼2½ fdlh Hkh n'kk eas vc dSfiVy lfClMh rFkk bUQzkLVªDpj lfClMh eas fdlh Dyse ij fopkj ugha fd;k tk;sxk vkSj lHkh yfEcr vo'ks"k Dyse fujLr dj fn, tk;saA ¼3½ pwWfd ;kstuk dks lekIr fd;k tk pqdk gS ,oa O;kikj dj dh txg cSV iz.kkyh ykxw gks x;h gS vr% VªkaliksVZ lfClMh rFkk O;kikj dj ds lkis{k C;kteqDr _.k tks fjdfjax ¼recurring½ izd`fr ds ykHk gSa] dks Hkh lekIr dj fn;k tk;s rFkk bu enksa esa izkIr lHkh Dyse fujLr le>s tk;saA
4. d`I;k rn~uqlkj vko';d dk;Zokgh lqfuf'pr djkus dk d"V djsaA"
As would be evident from a bare reading of Clause 3(3) of the government order dated 18.11.2011 the reason for non-consideration or rejection of claim for interest-free loan was the substitution of the earlier existing Trade Tax by Value Added Tax (V.A.T.).
Likewise, relevant extract of the government order dated 11.2.2015 reads as under -
Þ6& bl laca/k esa eq>s ;g dgus dk funsZ'k gqvk gS fd iz'uxr izdj.k esa ek- eaf=ifj"kn dh milfefr ds fu.khZr izLrko ij ek- ea=hifj"kn ds vuqeknuksijkUr] jkT; ljdkj )kjk U;kf;d ,oa leLr vU; igyqvksas ij lE;d fopkjksijkUr fuEufyf[kr fu.kZ; fy;s x, gSa %& ¼1½ ;kstukUrxZr ykHk izkIr djus okyh bdkb;ksa )kjk vkj{k.k ls lacaf/kr dkfeZd foHkkx ds 'kklukns'k la[;k % 4@1@2007&dk&2&2007 fnukad 18-8-2007 ds vuqikyu gsrq bl vk'k; dk 'kiFk i= fy;s tkus dh fu/kkZfjZr ck/;rk dks lekIr fd;k tkrk gS fdUrq izR;sd ik= bdkbZ vkj{k.k laca/kh 'kklukns'k ds vuqikyu dks lqfuf'pr djsxh rFkk vuqikyu dk izek.k izLrqr djsxhA ¼2½ O;kikj dj ds lkis{k C;kt eqDr _.k ds LFkku ij oSV dh O;oLFkk ykxw gksus ds dkj.k D;ksafd vHkh rd fdlh Hkh bdkbZ dks C;kteqDr _.k iznku ugha fd;k x;k gS vr% fdlh Hkh bdkbZ dks orZeku esa O;kikj dj ds lkis{k C;kt eqDr _.k iznku ugha fd;k tk,xkA ¼3½ ;krk;kr vuqnku D;ksafd vHkh rd fdlh Hkh bdkbZ dks iznku ugha fd;k x;k gS vr% Hkfo"; esa Hkh fdlh Hkh bdkbZ dks ;krk;kr vuqnku iznku ugha fd;k tk;sxkA ¼4½ vk|ksfxd fodkl foHkkx )kjk fuxZr 'kklukns'k la[;k% 1674@77&6&7&10&VSDl@4& Vh-lh-&12 fnukad 18-11-11 dks fuEufyf[kr viokn ds lkFk ;Fkkor ykxw j[kk tk;sxk %& Þvc rd ysVj vkWQ dEQVZ izkIr 11 bdkb;ksa esa ls 5 bdkb;ksa dks iwaaath miknku@voLFkkiuk miknku ds en esa :- 138-22 djksM+ dk ykHk iznku fd;k tk pqdk gSA 'ks"k 06 bdkb;ksa dks ;g ykHk izkIr ugha gqvk gSA vr% U;k; ,oa lerk ds fl)kUr ds n`f"Vxr] ;fn mDr bdkb;kW bl lanHkZ esa fofHkUu U;k;ky;ksa esa ;ksftr vius okn dks okil ysus ij lger gks rFkk lgefr Lo:i vuqcU/k djsa rks bu 'ks"k 06 bdkb;ksa dks Hkh fnukad 31-05-2009 rd fd, x, iwath fuos'k ds vk/kkj ij gh iwath miknku@voLFkkiuk miknku dk ykHk iwoZ esa viuk;h x;h izfdz;k ds vuqlkj iznku fd;k tk,xk] fdUrq fdlh Hkh n'kk esa fdlh Hkh bdkbZ dks fnukad 31-05-2009 ds mijkUr fd, x, iwath fuos'k ij fdlh Hkh izdkj dk miknku@lqfo/kk ugha nh tk,xhA bl izdkj mijksDr 06 bdkb;ksa dks fnukad 01-06-2006 ls 31-05-2009 rd ds fuos'k ds vk/kkj ij ;krk;kr vuqnku rFkk rFkk okf.kT; dj ds lkis{k C;kteqDr _.k dks NksM+dj 'ks"k vU; lqfo/kk,a iznku fd;s tkus ij 'kklu ij yxHkx :- 414-22 djksM+ dk vfrfjDr O;; vk,xkAß 6& d`i;k rnuqlkj vko';d dk;Zokgh lqfuf'pr djkus dk d"V djsaAß Reading of Clause 6(2) of the aforesaid government order dated 11.2.2015 also reveals specific reference to introduction of Value Added Tax in place of Trade Tax as one of the reasons for denial of interest-free loans in terms of the earlier policy.
As regards subsidy, the government order dated 11.2.2015 vide clause 6(4) states that out of the 11 units that had been issued letters of comfort, 5 had been granted capital/infrastructure subsidy to the tune of Rs. 138.22, but remaining 6 had not been granted their benefits, therefore, considering the principles of justice and equality, if, these units withdrew their cases from the Courts and enter into an agreement in this regard, their units would also be granted benefit of capital/infrastructure subsidy under the earlier Policy based on the capital investment made by them, but only till 31.5.2009 and not thereafter. Transport subsidy and interest free loan were not to be given. Thus, for the first time the date 31.5.2009 was introduced as it does not figure in the government order dated 3.8.2007. This bar of 31.5.2009 was to apply to all the Units.
What the Court finds from a reading of the aforesaid government orders dated 18.11.2011 and 11.2.2015 is that the question of grant of subsidies and interest-free loans as also the substitution of the Trade Tax Act by the V.A.T. was the subject matter of these government orders, which were put to challenge before the Court in the writ petitions filed earlier by most of the petitioners, except Tata Motors ltd. The plea of Input Tax Credit being available under the V.A.T. Act was also raised by the State to support its decision.
The challenge in the earlier writ petitions was on the ground of promissory estoppel, as, they claimed eligibility and entitlement to the benefits under the earlier policy in terms of government order dated 3.8.2007 which had been arbitrarily cancelled/modified by the impugned orders, therefore, their eligibility and entitlement to the benefits was also in issue before this Court in the earlier round of litigation.
Considering the issues involved in the earlier round of litigation the State could have very well said that the petitioners were not eligible for the benefits claimed in view of paragraph 2 of the government order dated 3.8.2007, therefore, assuming that the government orders dated 18.11.22011 and 11.2.2015 are set aside they were still not entitled to any relief in substantial and practical terms. Instead of doing so, the State Government did not deny their eligibility nor did it take the plea that the conditions mentioned in paragraph-2 of the government order dated 3.8.2007 were conjunctive i.e. both the conditions had to be fulfilled and as the letter of comforts had not been issued to the petitioners therein, except Gallantt Ispat Ltd. and Sukhbeer Agro Energy ltd., they were not entitled to the reliefs claimed. This was necessary for the reason one of the reliefs claimed, as is evident from the prayer clause of Writ Petition No.2047 (MB) of 2015 i.e. prayer clause 'c', was to issue a writ of mandamus or any other appropriate writ or order or direction directing the respondents to give the petitioner no.1 its full entitlement under the Industry Promotion Policy dated 1.6.2006 as amended by the government order dated 30.11.2006. Similar prayer was made in Writ Petition No.6297 (MB) of 2015. In spite of this specific relief claimed, the State did not deny their eligibility under para 2 of the government order dated 3.8.2007 or otherwise. The stand of the State was that it was entitled to rescind/change its policy. No dispute was raised as to the meaning and purport of para 2 of the government order dated 3.8.2007 in the earlier round of litigation.
We may now consider the government order dated 3.8.2007, the pleadings of the State in this regard in the earlier round of litigation and its considerations by this Court in the judgment dated 5.11.2015 and the way it was understood and applied by the State. Paragraph 2 of government order dated 3.8.2007 reads as under :
Þ2- mDr ifjizs{; esa eq>s ;g dgus dk funsZ'k gqvk gS fd jkT; ljdkj )kjk lE;d fopkjksijkUr bl ;kstuk dks rRdky izHkko ls lekIr fd;s tkus dk fu.kZ; fy;k x;k gSA ftu bdkbZ;ksa ds i{k esa ÞysVj vkQ dEQVZß fuxZr fd;s tk pqds gSa rFkk ftu bdkbZ;ksa us bl ;kstuk ds vUrxZr ykHk ikus ds fy, izkjfEHkd dk;Zokgh ;kstuk dh lekfIr ls iwoZ dj yh gks mUgsa ;kstuk esa ik=rk dh 'krsZa iwjh djus ij ;kstuk dk ykHk feysxkAß Paragraph 13 of the counter affidavit filed on behalf of the State Government in Writ Petition No.2047 (MB) of 2015 reads as under -
"13. That the State Government had closed the scheme vide Government order dated 3.8.2007 with a rider that the benefits will be available for those eligible Units which have been issued Letter of Comfort or completed initial activity by 3.8.2007. The Government of U.P. had subsequently closed the scheme through its Government Order dated 18.11.2011 and processing of all the pending applications were stopped as per Government Order."
This paragraph reveals the understanding of the State Government as to the meaning of the government order dated 3.8.2007 i.e. the two conditions, (1) completion of preliminary activity by 3.8.2007 and (2) issuance of letter of comfort, were disjunctive i.e. if either of the two were satisfied, the unit would be eligible for the benefit of government order dated 3.8.2007.
It is also not out of place to mention here that even while challenging the judgment dated 5.11.2015 before the supreme Court by means of S.L.P. (C) No. 3313 of 2016 the understanding of the State regarding para 2 of the government order dated 3.8.2007 was the same as expressed before the High Court in its counter affidavit and this is apparent from a reading of the memo of the S.L.P. This was also the understanding of the High Power Committee chaired by the Chief Secretary, of which, the Principal Secretary of the Industrial Development Department and Commissioner thereof were also Members alongwith the Principal Secretary (Finance) etc., as is evident from the minutes of the meeting dated 1.10.2007, and the act of issuance of letters of comforts to the petitioners thereafter, the letter of Udyog Bandhu dated 15.1.2008/11.6.2008, legal opinion given by the Law Department on 22.8.2008 and High Power Committees' Meeting dated 24.9.2008 and decisions and opinions on the subject, therefore, it cannot be said that there was any doubt as to the meaning of the said government order, especially as, based on this understanding, the said government order was implemented and subsidies were extended even to those three units (other than Gallantt Ispat Ltd. and Sukhbeer Agro Energy ltd.) to whom letters of comfort had not been issued, obviously for the aforesaid reason.
We also take notice of the fact that this is how the government order dated 3.8.2007 was understood even after the judgment dated 5.11.2015 as is evident from the minutes of the High Power Committee Meeting dated 4.4.2016 which have been placed before us by Dr. L.P. Mishra, Advocate, though they are not annexed with the counter affidavit of the State.
It is only when the Legal Remembrancer's (L.R's) office opined on 6.6.2016 that the earlier proceedings had not been contested properly, but at the same time stated that under the judgment the benefits had to be given to all units, it seems, having been caught in a fix, the authorities changed their stand on a literal reading of para 2 of the government order dated 3.8.2007, especially the word 'and' used therein, as is evident from the minutes of the meeting dated 14.6.2016 and the subsequent decisions.
In this context it is relevant to consider the relevant extract of the judgment dated 5.11.2015 which reads as under -
"To reiterate again, the unclarity of any objective reason for discontinuing the scheme does not make out any ground to deny at least the capital subsidy, the infrastructure subsidy and the transportation subsidy when it is established on record that the petitioners had clearly acted upon the representation made by the Government on its promise to extend such facilities, and not only this a certain amount towards such facilities had also been disbursed admittedly by the State Government when the scheme came to be withdrawn.
It is further to be remembered that the petitioners were always given the impression particularly with the enforcement of the Government Order dated 3rd of August, 2007 that even if the scheme was being discontinued the petitioners would not be affected at all. It is not the case of the State Government or the respondents that the petitioners had not fulfilled the terms and conditions or there was any deficit in their performance on their part as per the terms of the Government Order dated 3rd of August, 2007.
To our mind, it is only the interest free loan part which can be correlated to the introduction of the VAT Act. So far as the other subsidies are concerned, they were entirely not affected by the introduction of the VAT Act. Consequently, we do not find any plausible or reasonable explanation as to how the said subsidies deserved to be withdrawn from the petitioners and on what adverse public interest.
We are conscious of the argument advanced on behalf of the State that there cannot be any estoppel against statute particularly in relation to taxation, but at the same time the argument of the respondents also cannot be lost sight off that whatever protection of subsidy was extended under the scheme when the Trade Tax Act was in force, the exemptions therein and any benefits arising therefrom were continued under the VAT Act. The Taxation Act did not deny any benefits under the policy. To the converse, it is the respondent State which is withdrawing the benefit earlier granted under the scheme. Thus, in our opinion, the introduction of the VAT Act perse as a substitute for the Trade Tax Act does not alter the situation unless the State Government comes up with any objective consideration so as to point out a supervening public interest like any substantial loss of revenue. As indicated above the impugned decisions do not contain any such objective considerations or reasons.
So far as the subsidies other than the interest free loan as against VAT are concerned, the same do not appear to have been withdrawn on any plausible reason. The petitioners had altered their position considerably making huge investments. Consequently, we do not find any rational basis at least for the other subsidies including the three subsidies referred to hereinabove for being withdrawn.
So far as the issue of interest free loan against VAT is concerned, as observed hereinabove the consideration thereof and its non objective indication in the impugned government order dated 11th February, 2015 is concerned, the same renders the decision taken by the High Power Committee and the consequential issuance of the government orders to be invalid.
Consequently for all the reasons aforesaid we do not find any justification in the Government Orders dated 18.11.2011 and 11.2.2015 to deny any benefits to the petitioners. The consequential recovery of the taxes from the petitioners without there being a valid bonafide or reasonable decision as held hereinabove also therefore cannot be enforced. We therefore strike down the government order dated 11th February, 2015 as also the government order dated 18.11.2011 further restrain the respondents from recovering taxes under the impugned notices.
The State Government shall take a fresh decision within three months in the light of the observations made hereinabove only in relation to the benefit of interest free loan as against payment of VAT for the period in question. Any decision on this count which will be on a consideration of the scheme that would bind the Commercial Tax Department. The impugned recovery of taxes shall remain on hold till a fresh decision is taken. The disbursement of the three subsidies in relation to Capital Subsidy, Infrastructure Subsidy and Transportation Subsidy and other subsidies if any except as above shall be released forthwith to the petitioners in terms of the Government Order dated 1.6.2006 read with the Government Order dated 3.8.2007.
All the writ petitions are accordingly allowed on the same terms.
Order Date :- 5.11.2015"
On a reading of the above quoted judgment it is self-evident that the Division Bench of this Court categorically held - "It is not the case of the State Government or the respondents that the petitioners had not fulfilled the terms and conditions or there was any deficit in their performance on their part as per the terms of the government order dated 3.8.2007." Thus their eligibility in terms of the government order dated 3.8.2007 was accepted.
In view of the adjudication already made by the judgment dated 5.11.2015, we have no doubt that this issue pertaining to the eligibility of the petitioners in terms of government order dated 3.8.2007 and its meaning was considered by the Court and decided by it. Even otherwise any objection in this regard ought to have been raised by the State in the earlier round of litigation. Not having done so, rather, having admitted to the meaning of the government order dated 3.8.2007 as evinced in their counter affidavit, thereby inviting the observations already quoted hereinabove, now it is not open for the State to make a volte face. Reference may be made in this regard to the decision of the Supreme Court in the case of Ramchandra Dagdu Sonavane (Dead) by L.Rs. and others v. Vithu Hira Mahar (Dead) by L.Rs. & ors., (2009) 10 SCC 273, wherein the doctrine of res-judicata and constructive res-judicata have been explained as under :
"31) Res-judicata and Code of Civil Procedure :
It is well known that the doctrine of res- judicata is codified in Section 11 of the Code of Civil Procedure. Section 11 generally comes into play in relation to civil suits. But apart from the codified law, the doctrine of res-judicata or the principle of the res-judicata has been applied since long in various other kinds of proceedings and situations by courts in England, India and other countries. The rule of constructive res-judicata is engrafted in Explanation IV of Section 11 of the Code of Civil Procedure and in many other situations also Principles not only of direct res-judicata but of constructive res-judicata are also applied, if by any judgment or order any matter in issue has been directly and explicitly decided, the decision operates as res-judicata and bars the trial of an identical issue in a subsequent proceedings between the same parties. The Principle of resjudicata comes into play when by judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implications even then the Principle of resjudicata on that issue is directly applicable. When any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided [See MANU/SC/0291/1978 : AIR 1978 SC 1283]."
Reference may also be made in this regard to another decision in the case of Alka Gupta v. Narender Kumar Gupta, (2010) 10 SCC 141. Para 24, 25, 26 on this issue read as under :
"24. Explanation III clarifies that a matter is directly and substantially in issue, when it is alleged by one party and denied or admitted (expressly or impliedly) by the other. Explanation IV provides that where any matter which might and ought to have been made a ground of defence or attack in the former suit, even if it was not actually set up as a ground of attack or defence, shall be deemed and regarded as having been constructively in issue directly and substantially in the earlier suit. Therefore, even though a particular ground of defence or attack was not actually taken in the earlier suit, if it was capable of being taken in the earlier suit, it became a bar in regard to the said issue being taken in the second suit in view of the principle of constructive res judicata. Constructive res judicata deals with grounds of attack and defence which ought to have been raised, but not raised, whereas Order 2 Rule 2 of the Code relates to reliefs which ought to have been claimed on the same cause of action but not claimed.
25. The principle underlying Explanation IV to Section 11 becomes clear from Greenhalgh v. Mallard [1947 (2) All ER 257] thus:
"....it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them. (emphasis supplied)
26. In Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra [1990 (2) SCC 715], a Constitution Bench of this Court reiterated the principle of constructive res judicata after referring to Forward Construction Co. v. Prabhat Mandal [1986 (1) SCC 100) thus:
"35. ... an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence."
In the instant case the High Court has not stated what was the ground of attack that appellant- plaintiff ought to have raised in the first suit but had failed to raise, which she raised in the second suit, to attract the principle of constructive res judicata. The second suit is not barred by constructive res judicata."
The contentions of Dr. L.P. Mishra that this was permissible in view of the operative portion of the said judgment is an absolute misreading and misunderstanding of the judgment. The reference to the government order dated 1.6.2006 and 3.8.2007 in the said judgment is only for two reasons, firstly, as the government orders dated 18.11.2011 and 11.2.2015, which were impugned in the said proceedings, had cancelled the aforesaid earlier government orders, therefore, the necessity to refer to these orders, as, they stood revived. secondly, the benefits granted under the judgment dated 5.11.2015 were to be calculated in mathematical terms as also in terms of the other conditions mentioned in the policy as contained in the said government orders. The reference to these government orders did not permit the State to reopen the eligibility of the petitioners nor the meaning of the government order dated 3.8.2007, as, these issues had attained finality between the parties.
Even otherwise for the satisfaction of the State we would like to make it clear that the provision contained in para 2 of the government order dated 3.8.2007 was rightly understood by the State in the earlier proceedings as also before the Supreme Court and by the High Power Committee in its various resolutions as, requiring the satisfaction of either of the two eventualities mentioned therein, that is, completion of the preliminary activities or issuance of letters of comfort and not the satisfaction of both the conditions, for the benefits in question under the said government order. Any other understanding of the said provision would be highly unreasonable, in fact, it would lead to absurdity. Our reasons for taking this view are as follows.
On a bare perusal of the government order dated 30.11.2006 we find that the term 'Eligible Unit' has been defined in Clause 2.23 as under:-
Þ2-23 Þik= bdkbZß ls rkRi;Z ,slh vk|ksfxd bdkbZ ls gS] ftlesa le;≤ ij rFkk vf/klwfpr uks,Mk@xzsVj uks,Mk {ks= dks NksM+dj 'ks"k mRrj izns'k esa ebZ] 31] 2006 ds mijkar vkS|ksfxd bdkbZ dh LFkkiuk gsrq izkjfEHkd dk;Zokgh djds fu/kkZfjr frfFk rd U;wure :- 100 djksM+ ls vf/kd LFkk;h iwWth fuos'k vFkok vfrfjDr LFkk;h iwath fuos'k dj fy;k gks] rFkk fu/kkZfjr frfFk rd izLrj 2-14 esa ;FkkifjHkkf"kr okf.kfT;d mRiknu dh izFke frfFk izkIr dj fy;k gSA fu/kkZfjr frfFk ds iwoZ okf.kfT;d mRiknu izkjEHk gks tkus dh n'kk eas Hkh fu/kkZfjr frfFk rd fd;k x;k iwath fuos'k] LFkk;h iwWth fuos'k@vfrfjDr LFkk;h iwWth fuos'k@vfrfjDr LFkk;h iwWth fuos'k esa 'kkfey fd;k tk;sxkA ijUrq ;g fd ,slh vkS|ksfxd bdkbZ] ftldh ifj;kstuk ykxr :- 100 djksM+ ls vf/kd gS] ftlesa fu/kkZfjr frfFk ls iwoZ okf.kfT;d mRiknu izkjEHk gks x;k gks o U;wure :0 30 djksM+ LFkk;h iwath fuos'k@vfrfjDr LFkk;h iwWth fuos'k dj fn;k x;k gks] dks C;kteqDr _.k gsrq ik= bdkbZ ekuk tk;sxkAß The term ''Nirdharit Tithi' used in the policy is defined in clause 2.2 as under:-
Þ2-2- Þfu/kkZfjr frfFkß dk rkRi;Z 'kklukns'k la[;k 1502@77&6&2006&10 VSDl@2004 fnukad twu 1] 2006 )kjk okf.kfT;d mRiknu izkjEHk djus gsrq fu/kkZfjr vfUre frfFk] vFkkZr~ fnukad ebZ 31] 2009 vFkok le; le; ij ;Fkkla'kksf/kr frfFk ls gSAß The term 'preliminary activity' is defined in clause 2.10 as under:-
Þ2-10 ÞizkjafHkd dk;Zokghß dk rkRi;Z vkS|ksfxd bdkbZ dh LFkkiuk gsrq fuEufyf[kr esa ls ,d ;k vf/kd dk;Zokgh ls gS( ¼d½ vkS|ksfxd bdkbZ ds LFkkiukFkZ b'kwM dSfiVy dk U;wure 10 izfr'kr] iSMvi gks( ¼[k½ fuekZ.k izfdz;k ls lacaf/kr QSDVªh Hkou ds fdlh Hkkx dk fuekZ.k dj fy;k x;k gks( ¼x½ vkS|ksfxd bdkbZ esa okafNr fdlh e'kkhujh o la;a= dh vkiwfrZ gsrq dz; vkns'k ¼Firm Order½ ns fn;k x;k gks(ß The subject ''issuance of letter of comfort in relation to eligibility' has been explained in clause 3.2 as under:-
Þ3-2 ik=rk ds laca/k es ÞysVj vkWQ dEQVZ (letter of comfort) tkjh fd;k tkuk& bl ;kstuk dk ykHk mBkus dk bPNqd m|eh ;Fkko';d fooj.k lfgr viuk izLrko uksMy ,tsUlh dks izLrqr djsxkA uksMy ,tsUlh )kjk ijh{k.kksijkUr izLrko dks mPp Lrjh; lfefr ds le{k fopkjkFkZ j[kk tk;sxkA mPp Lrjh; lfefr )kjk ;fn izLrko Lohdkj dj fy;k tk;sxk] rkss uksMy ,tsUlh )kjk m|eh dh ik=rk dks Lohdkj djrs gq, mls ysVj vkWQ dEQVZ fn;k tk;sxk] ftlesa bl 'kklukns'k esa mfYyf[kr 'krksZa ds vykok vU; lqlaxr 'krsZa Hkh mfYyf[kr dh tk ldsaxhAß On a reading of the aforesaid provisions as also the other provisions in the Policy it is evident that the 'letter of comfort' had to be issued in respect of an 'eligible unit' which could only be issued after the unit had completed the preliminary activities. Thus, this aspect has to be understood in the light of the provisions quoted hereinabove.
As we understand and as the opposite parties had also been understanding till their volte face, the two eventualities mentioned in para 2 of the government order are on account of the fact that in a given situation, a unit, after completing the preliminary activities, may have been issued the letter of comfort as in the case of Gallantt Ispat Ltd. and Sukhbeer Agro Energy ltd., but, there may be another eventuality, where, even after completing the preliminary activities and becoming eligible for benefits under the Policy and having applied for issuance of letter of comfort, the same may not have been issued prior to 3.8.2007 for no fault of theirs, as, in the case of the remaining petitioners herein except Ultratech Cement Ltd. Denying these eligible units the benefit of the government order dated 3.8.2007 would be contrary to the 'principle of Promissory Estoppel' apart from being arbitrary, thereby making the government order dated 3.8.2007 susceptible to challenge on the anvil of Article 14 of the Constitution of India.
On the other hand, if we read and understand the said provision, as is now being suggested by the State that is to mean that it requires the satisfaction of both the eventualities mentioned therein, then, it leads to unreasonableness and absurdity, as, if, the letter of comfort had already been issued, the other condition would already stand satisfied so its satisfaction separately would be unnecessary. If letter of comfort had not been issued in spite of being applied for after completion of preliminary activities or if the preliminary activities had been completed, but, letter of comfort was not applied by 3.8.2007 but was applied subsequently and was granted (as in the case of Ultratech Cement Ltd.), then it would be unreasonable to deny the benefits promised as explained hereinabove.
Moreover, such a construction does not achieve the object which the government order dated 3.8.2007 seeks to achieve that is to continue the benefits under the earlier Policy in spite of its subsequent cancellation on 3.8.2007 to those who had acted upon the promise held out by the State to them. Therefore, any such construction as suggested would render the provision irrational and impermissible, as, if the letter of comfort had already been issued to a unit there was no necessity of the first condition i.e. requirement of completion of preliminary activity, as, such a letter would be issued only after completion thereof. For reasons aforesaid the word ''and' used in para 2 of the government order dated 3.8.2007 has to be read and understood as ''or' i.e. disjunctively. Reliance is placed in this regard on the decision of the Supreme Court in the case of Ishwar Singh Bindra & Ors. Vs. State of U.P., AIR 1968 SC 1450 (para 11) as the reasoning contained therein, though given in the context of a statutory provision, is apt in the present context also and is as under :
"Now if the, expression "substances" is to be taken to mean something other than "medicine" as has been held in our previous decision it becomes difficult to understand how the word "and" as used in the definition of drug in Section 3 (b) (i) between "medicines" and "substances" could have been intended to have been used conjunctively. It would be much more appropriate in the context to read it disconjunctively. In Stroud's Judicial Dictionary, 3rd Edn. it is stated at p. 135 that "and" has generally a cumulative sense, requiring, the fulfillment of all the conditions that it joins together, and herein it is the antithesis of "or". Sometimes, however, even in such a connection, it is, by force of a contexts, read as "or". Similarly in Maxwell on Interpretation of Statutes, 11th Edn., it has been accepted that "to carry out the intention of the legislature it is occasionally found necessary to read the conjunctions 'or' and 'and' one for the other"."
The fallacy in the reasoning put forth by the State is so apparent that it does not require any further discussion except that even before the Supreme Court while filing the Special Leave Petition (S.L.P.) the State understood the provision correctly as we have mentioned hereinabove, but for reasons which are quite obvious, it has now changed its stand unreasonably. Reference may be made in this context to the decision of the Supreme Court in the case of Tamil Nadu Electricity Board & another Vs. States Spining Mills Ltd. & another (2008) 7 SCC 353 (Para 29) where the doctrine of Contemporanea Expositio was applied in the context of an executive order. Likewise, although in the context of statutory provision, the Supreme Court considered the aforesaid doctrine and observed in Para 27 and 28 in S.B. Bhattacharjee's case (supra), as under:-
"27. It may be that in a given case, the court can with a view to give effect to the intention of the legislature, may read the statute in a manner compatible therewith, and which would not be reduced to a nullity by the draftsman's unskillfulness or ignorance of law. But, however, it is also necessary for us to bear in mind that the illustration given by the executive while construing an executive direction and office memorandum by way of executive construction cannot be lost sight of. It is in that sense the doctrine of contemporanea expositio may have to be taken recourse to in appropriate cases, although the same may not be relevant for construction of a model statute passed by a legislature.
28. In G.P. Singh's Principles of Statutory Interpretation, 10th Edn. at p. 319, it is stated:
"But a uniform and consistent departmental practice arising out of construction placed upon an ambiguous statute by the highest executive officers at or near the time of its enactment and continuing for a long period of time is an admissible aid to the proper construction of the statute by the court and would not be disregarded except for cogent reasons. The controlling effect of this aid which is known as ''executive construction' would depend upon various factors such as the length of time for which it is followed, the nature of rights and property affected by it, the injustice resulting from its departure and the approval that it has received in judicial decisions or in legislation.
Relying upon this principle, the Supreme Court in Ajay Gandhi v. B. Singh (2004) 2 SCC 120 having regard to the fact that the President of the Income Tax Appellate Tribunal had been from its inception in 1941 exercising the power of transfer of the members of the Tribunal to the places where Benches of the Tribunal were functioning, held construing Sections 251(1) and 255(5) of the Income Tax Act that the President under these provisions has the requisite power of transfer and posting of its members. The Court observed: ''For construction of a statute, it is trite, the actual practice may be taken into consideration.' Contemporary official statements throwing light on the construction of a statute and statutory instruments made under it have been used as contemporanea expositio to interpret not only ancient but even recent statutes both in England and India."
In the present case Para 2 of the Government Order was understood by the highest officials of the State as already mentioned hereinabove as containing disjunctive conditions and was also implemented accordingly. In view of the above, the meaning now being assigned to the government order dated 3.8.2007 by the State is unacceptable and is rejected.
As regards Ultratech Cement Ltd., though the application for issuance of letter of comfort was made after 3.8.2007 i.e. on 4.1.2008, it is nobody's case that it had not completed the preliminary activities prior to 3.8.2007, thus, even if it applied for letter of comfort after 3.8.2007, which was granted to it on 4.11.2008, it is entitled to the benefit of government order dated 3.8.2007 as it satisfies one of the conditions mentioned therein.
As regards the benefits of ''subsidy', the judgment dated 5.11.2015 is final between the parties and there is no escape for the State from it. The eligibility of the petitioners to the said benefits, subject of course, to the mathematical calculations in this regard and genuineness of the claim based on documents and satisfaction of other relevant conditions of the Policy, if any, has already been determined by the aforesaid judgment. This is evident from the observations made in the judgment dated 5.11.2015 which does not require any reiteration. Even before this Court their eligibility has not been disputed. It is nobody's case that the petitioners had not completed preliminary activities by 3.8.2007 or had not commenced commercial production prior to 31.5.2009. The only ground raised for denying this benefit is the meaning assigned to government order dated 3.8.2007 which we have already rejected.
We may also put it on record that on a perusal of the policy we do not find any time-limit prescribed therein for claiming subsidy. The contention of the learned counsel for the petitioners is that if a claim was not raised earlier it was only on account of the fact that the matter was in a fluid situation and being subjudice and the policy in fact was not being implemented, which did not take away their entitlement to claim the subsidies in terms of the policy aforesaid. We accept these submissions.
As regards interest-free loans are concerned, the only liberty granted to the State by the judgment dated 5.11.2015 was to see as to whether supervening public interest such as any substantial loss of revenue could be pointed out so as to justify a change in the Policy in this regard consequent to introduction of V.A.T. in place of Trade Tax Act, as otherwise, the Court found that such substitution did not alter the situation in any manner. As already indicated earlier, this aspect of the matter was very much in issue in the earlier proceedings in view of the stipulation in this regard contained in the orders dated 18.11.2011 and 11.2.2015 impugned before it and as is also evident from the discussion made by this Court in the aforesaid judgment in this context, wherein, it was observed - "We are conscious of the argument advanced on behalf of the State that there cannot be any estoppel against statue particularly in relatin to taxatin, but at the same time the argument of the respondents also cannot be lost sight off that whatever protection of subsidy was extended under the scheme when the Trade Tax Act was in force, the exemptions therein and any benefits arising therefrom were continued under the V.A.T. Act. The Taxation Act did not deny any benefits under the policy. To the converse, it is the respondent State which is withdrawing the benefit earlier granted under the scheme. Thus, in our opinion, the introduction of the V.A.T. Act per se as a substitute for the Trade Tax Act does not alter the situation unless the State Government comes up with any objective consideration so as to point out a supervening public interest like any substantial loss of revenue. As indicated above the impugned decision do not contain any such objectivity considerations or reasons." - and the observations made in the operative portion to the effect "The State Government shall take a fresh decision within three months in the light of the observations made hereinabove only in relation to the benefit of interest free loan as against payment of V.A.T. for the period in question." The plea that Input Tax Credit benefit had been made available, though not raised before us during arguments, was also considered by the earlier Bench.
Before us also Dr. L.P. Mishra, learned counsel could not show as to how on account of introduction of Value Added Tax (V.A.T.) the situation got altered in a way that public interest was compromised either by substantial loss of revenue or other similar loss. In fact, he contended that the government order dated 22.9.2016 did not deny the benefit of interest-free loan, but continued it, albeit, with some modifications with retrospective effect from 1.6.2006.
In this context we would like to refer to clause 2.3 of the government order dated 30.11.2006 which defined "Tax admittedly payable" for the purpose of grant of interest-free loan and it reads as under :
Þ2-3 Lohd`r :i ls ^ns; djß dk rkRi;Z ik= bdkbZ )kjk le; le; ij ;Fkkla'kksf/kr O;kikj dj vf/kfu;e @ dsUnzh; fcdzh dj vf/kfu;e ¼pkgs orZeku :i esa vFkok vU;Fkk½ ds vUrxZr ik= bdkbZ )kjk vfHkys[kksa vFkok nkf[ky fd;s x;s uD'kksa esa ?kksf"kr fcdzh@[kjhn ij ns; dj tks Hkh vf/kd gks] ls gS Aß A reading of the above quoted provision reveals that it refers to tax payable under the U.P. Trade Tax Act/Central Sales Tax Act "in its present form or in any other form". These words envisage and encompass the subsequent enactments i.e. V.A.T. Act 2008 etc. also, therefore, such subsequent enactment does not adversely affect the promise made by the State to the petitioners vide government order dated 1.6.2006 and 30.11.2006.
We have also perused clause 5.2 to 5.6 and 6.1 to 6.13 of the said government order containing provisions and procedure for grant of an interest-fee loan under the government order dated 30.11.2006 and they are as under:-
Þ5-2 C;kt eqDr _.k dh vof/k& :0 100 djksM+ ls vf/kd LFkk;h iwWth fuos'k@vfrfjDr LFkk;h iwWth fuos'k djus okyh ik= bdkbZ ds fy;s fcdzh ij Lohd`r :i ls ns; dj dh /kujkf'k bl 'kklukns'k ds vUrxZr Lo;aeso 15 o"kksZa rd C;kteqDr _.k esa ifjofrZr ekuh tk;sxh] ftldk Hkqxrku 7 o"kZ ckn C;kteqDr _.k ds :i esa ik= bdkbZ )kjk fd;k tk;sxkA 5-3 izLrj 5-2 eas mfYyf[kr ik= bdkbZ dks ;g Hkh fodYi gksxk fd os C;kt eqDr _.k dk Hkqxrku 7 o"kZ ds LFkku ij 15 o"kksZa ds ckn dj ldsa fdUrq bl fodYi esa bl lqfo/kk dh iwjh vof/k esa ik= bdkbZ dks izkIr gksus okys C;kt dh NwV dh /kujkf'k ik= bdkbZ ds LFkk;h iwWth fuos'k@vfrfjDr LFkk;h iwWth fuos'k ds 100 izfr'kr ls vf/kd ugha gksxhA 5-4 :0 200 djksM+ ls vf/kd LFkk;h iwWth fuos'k djus okyh ik= bdkbZ dks ;g lqfo/kk gksxh fd og izLrj 5-2 ,oa 5-3 esa miyC/k C;kt eqDr _.k lqfo/kk esas ls fdlh ,d dk ykHk izkIr djs vFkok fodYi eas 17 o"kZ ds fy;s C;kteqDr _.k] ftldk Hkqxrku 10 o"kZ ckn C;kteqDr _.k ds :i eas ns; gks] dk ykHk bl izfrcU/k ds lkFk izkIr dj lds fd ik= bdkbZ dks miyC/k C;kt NwV dh lqfo/kk dk 'kq) orZeku ewY; ¼usV izsts.V oSY;w½ bdkbZ ds LFkk;h iwWth fuos'k@vfrfjDr LFkk;h iwWth fuos'k ds 100 izfr'kr ls vf/kd u gksA 5-5 izLrj 5-3 o izLrj 5-4 esa] ;FkkfLFkfr] C;kt vFkok 'kq) orZeku ewY; dh x.kuk 8 izfr'kr C;kt nj ekurs gq, dh tk,xhA 5-6 izLrj 5-2] 5-3 ,oa 5-4 esa dze'k% mfYyf[kr 7 o"k]Z 15 o"kZ vFkok 10 o"kZ dh vof/k dh x.kuk izLrj 7-1 esa mfYyf[kr izfdz;k ds vuqlkj dh tk;sxhA 6-0 _.k Lohd`fr dh izfdz;k& 6-1 ik= bdkb C;kteqDr _.k gsrq izkFkZuk&i= fofRrh; o"kZ dh lekfIr ds ,d ekg ds vUnj uksMy ,tsUlh dks ns ldsxh] ijUrq ;fn ,slh ik= bdkbZ )kjk fu/kkZfjr frfFk rd :- 100 djksM+ ls vf/kd LFkk;h iwWth fuos'k @vfrfjDr LFkk;h iwWth fuos'k ugha fd;k tkrk gS rks mlds )kjk izkIr fd;k x;k C;kt eqDr _.k] _.k izkfIr dh frfFk ls 12 izfr'kr lk/kkj.k C;kt dh nj ls fu/kkZfjr frfFk ds mijkUr ,d eq'r iquZHkqxrku gsrq ns; gks tk;sxkA ftldh olwyh Hkw jktLo ds cdk;k ds :i eas dh tk ldsxhA 6-2 ik= bdkbZ )kjk izkFkZuk i= ds lkFk pkVZM ,dkmUVsUV ls izekf.kr ik= bdkbZ ds izns'kh; O;kikj dj o dsUnzh; fcdzh dj ds vUrxZr nkf[ky fjVZu dh izfr;kW o o"kZ esa Lohd`r :i ls ns; O;kikj dj o dsUnzh; fcdzh dj dh /kujkf'k rFkk LFkk;h iwWth fuos'k @vfrfjDr LFkk;h iwWth fuos'k dk izek.k i= rhu izfr;ksa esa layXu fd;k tk;sxkA 6-3 ijh{k.k lfefr izLrko dk ijh{k.k djus ds mijkar ik= bdkbZ dk izLrko viuh laLrqfr ds lkFk mPp Lrjh; lfefr dks HkstsxhA 6-4 mPp Lrjh; lfefr )kjk fy;s x;s fu.kZ; ds vuq:i ik= bdkbZ dks miyC/k gksus okyh C;kt eqDr _.k /kujkf'k ds laca/k esa vkns'kksa dk fdz;kUo;u uksMy ,tsUlh )kjk lqfuf'pr fd;k tk;sxkA 6-5 uksMy ,tsalh )kjk bl ;kstuk gsrq jkT; ljdkj ds lfpoky; ds :i esa C;kt eqDr _.k dh /kujkf'k ik= bdkbZ dh vksj ls iqLrd lek;kstu ¼cqd VªkalQj½ )kjk O;kikdj dj foHkkx ds izkfIr 'kh"kZd ¼tks ckn esa vkoafVr fd;k tk;sxk½ ds vUrxZr tek djk;h tk,xh vkSj bl vkns'k dh izfr egkys[kkdkj dks iqLrd lek;kstu gsrq rFkk dfe'uj] O;kikj dj o lacaf/kr O;kikj dj vf/kdkjh o ik= bdkbZ dks Hksth tk;sxhA 6-6 bl ;kstuk ds vUrxZr ctV ds ek/;e ls Lohd`fr dh x;h /kujkf'k vk|ksfxd fuos'k izksRlkgu ;kstuk] 2006 ds ys[kk 'kh"kZd ¼ftls foRr foHkkx )kjk ckn esa vkof.Vr fd;k tk;sxk½ ds i{k esa tek dh tk;sxhA ;kstuk ds vUrxZr iqLrd lek;ksstu )kjk Lohd`r C;kt eqDr _.k dh /kujkf'k rFkk vuqnku ds :i esa miyC/k djk;s tkus okyh /kujkf'k bl ys[kk&'kh"kZd ds ukes Mkyh tk;sxhA 6-7 uksMy ,tsUlh izR;sd o"kZ le; le; ij olwy gqbZ _.k jkf'k rFkk C;kt vkfn dks rRdky mlh o"kZ esa mi;qZDr ys[kk 'kh"kZd ds izkfIr i{k esa tek djsaxs] rkfd 'kkldh; jktLo dh izkfIr esa foyEc u gksA 6-8 mDr _.k ys[kk 'kh"kZd esa mijksDrkuqlkj Lohd`r fd;s x;s _.k rFkk tek dh x;h jkf'k ds laca/k eas] vkS|ksfxd fodkl foHkkx] fu;a=d rFkk izkDdyu vf/kdkjh gksaxsA os bl ys[kk 'kh"kZd ds ctV rFkk iqujhf{kr vuqeku uksMy ,tsUlh )kjk nh x;h lwpuk ds vk/kkj ij izLrkfor djsaxs rFkk vko';drkuqlkj ctV@vuqiwjd ekWx dk izLrko djsaxsA 6-9 uksMy ,tsUlh )kjk Lohd`r C;kt eqDr _.k] ftls iqLrd lek;kstu ds ek/;e ls O;kikj dj foHkkx ds izkfIr ys[kk 'kh"kZd esa tek fd;k x;k gks] dk egkys[kkdkj ds vfHkys[kksa ls feyku uksMy ,tsalh ds ek/;e ls vk|ksfxd fodkl foHkkx )kjk fd;k tk;sxkA 6-10 C;kt eqDr _.k dh lqj{kk rFkk vnk;xh dh tksf[ke dks U;wure fd;s tkus gsrq fuEufyf[kr 'krksZa dk vuqikyu lqfuf'pr fd;k tk;sxk & ¼d½ _.k dh lqj{kk gsrq i;kZIr /kujkf'k dh ifjlEifRr;ksa ij 'kklu ds i{k esaa izFke izHkkj l`ftr fd;k tk;sxk vFkok fodYi ds :i esa lerqY; /kujkf'k dh fdlh vuqlwfpr ¼'ksM~;wYM½ cSad dh xkjUVh miyC/k djk;h tk;sxhA ¼[k½ ik= bdkbZ )kjk mijksDrkuqlkj miyC/k djk;h x;h lD;ksfjVh ij uksMy ,tsUlh )kjk fujUrj utj j[kh tk;sxh] ftlls fdlh Hkh n'kk esa flD;ksfjVh dk ewY; miyC/k djk;h x;h _.k lgk;rk ls de ugha gksxkA ;fn ,slh fLFkfr mRiUu gksrh gS fd lD;ksfjVh dk ewY; miyC/k djk;h x;h _.k lgk;rk ls de gks x;k gS] rks ik= bdkbZ ls rRdky vfrfjDr flD;ksfjVh ifjlEifRr;ksa ij izFke pktZ vFkok cSad xkj.Vh ds :i eas miyC/k djkus ds fy;s dgk tk;sxkA ;fn ik= bdkbZ vfrfjDr flD;ksfjVh miyC/k ugha djkrh gS rks vkxs dh _.k lgk;rk jksd yh tk;sxhA ¼x½ uksMy ,tsUlh )kjk ik= bdkbZ dh foRrh; fLFkfr dk vkWdyu dj ewY;kadu fjiksVZ o"kZ esa de ls de ,d ckj fidi ds funs'kd e.My ds le{k izLrqr dh tk;sxhA bdkbZ dks vius lHkh ys[ks fidi dks miyC/k djkus gksaxs rFkk fidi dks ;Fkko';d ik= bdkbZ ds ys[kksa dk fujh{k.k djus dk vf/kdkj gksxkA uksMy ,tsUlh ds funs'kd e.My )kjk ik= bdkbZ dh foRrh; fLFkfr larks"ktud ik;s tkus ds i'pkr gh _.k lgk;rk dh vfxze fd'r voeqDr dh tk;sxhA ;fn ik= bdkbZ dh foRrh; fLFkfr larks"ktud ugha ik;h tkrh gS rks fidi ds funs'kd e.My dks ;g vf/kdkj gksxk fd og ik= bdkbZ dks lq/kkj ykus gsrq lefpr funsZ'k ns ldsA bl funsZ'kksa dk vuqikyu u djus ij bdkbZ dh vfxze lgk;rk jksdh tk ldrh gSA ¼?k½ _.k dh lqj{kk gsrq vko';d vuqcU/k uksMy ,tsUlh )kjk ik= bdkbZ ls fu"ikfnr djk;k tk;sxkA 6-11 ik= bdkbZ ds C;kteqDr _.k@vuqnku Lohd`fr izLrko esa dfe;kW ikk;h tkus ij uksMy ,tsUlh )kjk muds fujkdj.k dk iz;kl fd;k tk;sxkA rnksijkar ;fn izLrko dsoy vkaf'kd :i ls gh Lohd`fr ;ksX; ik;k tkrk gS rks ml lhek rd _.k Lohd`r fd;k tk;sxkA Lohd`fr ds v;ksX; va'k ds lac/k esa uksMy ,tsUlh )kjk dkj.kksa dk mYys[k djrs gq, vLohdj.k vkns'k dh izfr ik= bdkbZ dks izsf"kr dh tk;sxhA 6-12 ik= bdkbZ] vLohdj.k vkns'k dh izkfIr ds rhl fnu ds vUnj] mPp Lrjh; lfefr ds le{k ,sls vkns'k ds fo:) iquZfopkj izkFkZuk i= izLrqr dj ldrh gS] ftl ij lE;d fopkjksijkUr mPp Lrjh; lfefr )kjk fu.kZ; fy;k tk;sxkA 6-13 ik= bdkbZ )kjk Lohd`r :i ls ns; O;kikj dj o dsUnzh; fcdzhdj dh /kujkf'k ¼pkgs orZeku :i esa vFkok vU;Fkk½ Loeso C;kt eqDr _.k ds :i esa ifjfrZr gksus ds laca/k eas leqfpr izkfo/kku dj foHkkx )kjk O;kikj dj vf/kfu;e@fu;ekoyh esa fd;k tk;sxkA laxr vf/kfu;e@fu;ekoyh esa la'kks/ku gksus ds mijkUr Þik= bdkbZ )kjk Lohd`r :i ls ns; O;kikj dj o dsUnzh; fcdzh dj dh /kujkf'k Loeso C;kteqDr _.k esa ifjofrZrß gksus fo"k;d bl 'kklukns'k ds izkfo/kku ykxw gksaxsAß It is the entitlement of the petitioners to this benefit of interest-free loan which was upheld by this Court vide judgment dated 5.11.2015, subject to the re-consideration ordered in this context which was only for a limited purpose as to whether there was any supervening public interest like substantial loss of revenue or other similar loss, which Dr. Mishra, has failed to demonstrate before us.
As regards the plea that the V.A.T. Act 2008 necessitated a change in policy, the same was specifically considered and repelled by this Court vide judgment dated 5.11.2015 as this was also the ground raised before it, especially in view of the stipulations contained in the government order dated 18.11.2011 and 11.2.2015 relevant extract of which have already been quoted hereinabove. This very ground mentioned in the said government orders was turned down and the said orders were quashed, therefore, it was not open for the State Government to again reiterate the same and/or to take away the rights accrued in favour of the petitioners under the aforesaid judgment dated 5.11.2015 for being considered for grant of interest-free loan in terms of government order dated 30.11.2006 by superseding the said government orders and introducing a new scheme/policy vide government order dated 22.9.2016. The new scheme is different than the earlier one. Relevant provision of the new scheme/policy as contained in clause 5.17.6, 6.2, 6.3, 6.3.1 to 6.3.17 are as under :
Þ5-17-6 ÞC;kt eqDr _.k &ß :0 100 djksM+ ls vf/kd LFkk;h iwWth fuos'k@vfrfjDr LFkk;h iwWth fuos'k djus okyh ik= bdkbZ ds fy, fcdzh dj mRrj izns'k O;kikj dj@mRrj izns'k ewY; laof/kZr dj@dsUnzh; fcdzhdj vFkok Hkfo"; esa mDr ds LFkku ij vkus okys jkT; th-,l-Vh- ds vUrZxr okf"kZd fodz; /ku ij Lohd`r :i ls ns; dj dh /kujkf'k bdkbZ )kjk tek fd;s tkus ds mijkUr] jkT; ljdkj )kjk mlds lerqY; /kujkf'k dk C;kt eqDr _.k ds :i esa Lohd`r jkf'k ls gS ftldk lapkyu uksMy ,tsUlh )kjk jkT; ljdkj ds lfpoky; ds :i esas fd;k tk;sxkA 6-2 C;kteqDr _.k dh okf"kZd lhek & fdlh o"kZ esa C;kteqDr _.k dh jkf'k ik= bdkbZ ds fn0 01-06-2006 ls 31-5-2009 rd fd;s x;s u;s LFkk;h iwWth fuos'k@vfrfjDr LFkk;h iwWth fuos'k ls fufeZr eky ds okf"kZd fodz; /ku ij Lohd`r :i ls ns; mRrj izns'k O;kikj dj@mRrj izns'k ewY; laof/kZr dj@dsUnzh; fcdzhdj vFkok Hkfo"; eas mDr ds LFkku ij vkus okys jkT; th-,l-Vh- dh /kujkf'k ds lerqY; gksxhA ;fn fdlh bdkbZ )kjk 31-05-2009 ds mijkUr vfrfjDr iwWth fuos'k djrs gq, bdkbZ dh vf/k"Bkfir {kerk esa o`f) dj yh gS rks ,slh ik= bdkbZ;ksa dks ÞySVj vkQ dEQVZß tkjh djus ds iwoZ ;kstukUrxZr fofHkUu lqfo/kkvksa dks vuqeU; djk;s tkus gsrq fn0 01-06-2006 ls 31-05-2009 rd esa fd;s x;s fuos'k ds lEcU/k esa izLrqr dh x;h foLr`r ifj;kstuk fjiksZV (D.P.R.) esa bafxr vf/k"Bkfir {kerk dh lhek ds vUrxZr fn0 31-05-2009 rd okLrfod :i esa LFkkfir {kerk ij okf"kZd fodz; /ku@vfrfjDr fodz; /ku dh lhek rd gh mRrj izns'k O;kikjdj vf/kfu;e@mRrj izns'k ewY; laof/kZr vf/kfu;e@dsUnzh; fcdzh dj vf/kfu;e ds vUrZxr tek fd;s x;s dj ds Hkqxrku dh /kujkf'k gh C;kteqDr _.k gsrq vuqeU; gksxhA 6-3 Þ_.k Lohd`fr rFkk olwyh dh izfdz;kß 6-3-1 ik= bdkbZ izR;so o"kZ dh lekfIr dh vfxze 30 flrEcj rd C;kt eqDr _.k gsrq izkFkZuki= ds lkFk vius iwoZ Lohd`r :i ls ns; O;kikj dj@oSV rFkk dsUnzh; fcdzhdj vFkok Hkfo"; eas mDr vf/kfu;e ds LFkku ij vkus okys jkT; th,lVh dh /kujkf'k ds ;kstukUrxZr lqlaxr o"kZ ds ijhf{kr ys[kk@cSysUl'khV] okf"kZd fooj.k i=ksa@nkf[ky fjVuZ dh pkVZMZ ,dkm.Vs.V ls izekf.kr izfr ,oa lEcfU/kr dj fu/kkZj.k vf/kdkjh ls ;kstukUrxZr lR;[email protected] rhu izfr;kW rFkk LFkk;h iwWth fuos'k@vfrfjDr LFkk;h iwWth fuos'k dk izek.k i= rhu izfr;ksa esa uksMy ,tsUlh ¼fidi½ dks nsxhA ik= bdkbZ iwoZorhZ foRrh; o"kksZa ds C;kt eqDr _.k ls lEcfU/kr rFkk _.k izkFkZuki=ksa dks nsus ds iwoZ Lohd`r :i ls ns; mRrj izns'k O;kikj dj@mRrj izns'k ewY; loaf/kZr dj@dsUnzh; fcdzh dj ds vUrxZr vkus okyh /kujkf'k dks fu;ekuqlkj jktdh; dks"kkxkj eas tek djsxhA ftu bdkbZ;ksa )kjk fcdzh dh izFke frfFk ls o"kZ 2015&16 rd Lohd`r :i ls ns; mRrj izns'k O;kikj dj@mRrj izns'k ewY; laof/kZr dj@dsUnzh; fcdzh dj ds vUrxZr vkus okyh /kujkf'k jktdh; dks"kkxkj esa tek ugha dh gS] ,oa fu;r frfFk rd lans; dj tek u djus dh fLFkfr esa laxr vf/kfu;e ds vUrxZr ns; C;kt ,oa vkjksfir vFkZ n.M] ns; dj ds lkFk fu/kkZfjr frfFk vFkkZr vkxkeh 31 fnlEcj 2016 rd tek dj nh tkrh gS] rks ,sls tek fd;s x;s ns; C;kt ,oa vkjksfir vFkZn.M dh /kujkf'k ds lerqY; /kujkf'k Hkh C;kt eqDr _.k ds :i esa bdkbZ dks leku 'krksZa ij miyC/k djk;h tk;sxhA fdUrq ;Fkk la'kksf/kr ;kstuk tkjh fd;s tkus dh frfFk ls izkjEHk djds vkxss dh vof/k esa bdkbZ )kjk Lohd`r :i ls ns; dj fu;r frfFk ds Hkhrj tek ugha fd;s tkus dh fLFkfr esa Lohd`r dj ij ns; C;kt rFkk vkjksfir vFkZn.M bdkbZ dks tek djuk gksxkA ,sls tek C;kt ,oa vFkZn.M dh /kujkf'k ij C;kteqDr _.k ugha fn;k tk;sxkA mDr ns; /kujkf'k tek djus ds mijkUr C;kt eqDr _.k ls lEcfU/kr izkFkZuk i= tek dh x;h frfFk ls ,d ekg ds vUnj uksMy ,tsUlh dks izsf"kr djsaxsA ftu bdkbZ;ksa )kjk ;kstukUrxZr fcdzh dh izFke frfFk ls o"kZ 2015&16 rd Lohd`r :i ls ns; O;kikj dj@oSV@dsUnzh; fcdzhdj dh /kujkf'k] jktdh; dks"kkxkj esa tek djk nh x;h gS ,slh bdkbZ;ksa dks C;kt eqDr _.k dh /kujkf'k dh Lohd`fr gsrq izkFkZuki= 'kh?kz gh uksMy ,tsaUlh dks miyC/k djk;saxs] rkfd ;kstukUrxZr /kujkf'k dh] Lohd`rksijkUr mUgsa miyC/k djk;k tkuk lEHko gks ldsA 6-3-2 uksMy ,tsUlh ¼fidi½ ik= bdkbZ dks u;s LFkk;h iwWth fuos'k@vfrfjDr LFkk;h iwWth fuos'k ds ek/;e ls fufeZr eky ds ml o"kZ ds okf"kZd fodz; /ku ij Hkqxrku fd;s x;s mRrj izns'k O;kikj dj@mRrj izns'k ewY; laof/kZr dj@dsUnzh; fcdzhdj vFkok Hkfo"; esa mDr vf/kfu;e ds LFkku ij vkus okys jkT; th-,l-Vh- ds ;ksx ds lerqY; /kujkf'k C;kt eqDr _.k ds :i esa l{ke Lrj ls Lohd`r djkrs gq, ik= bdkbZ dks miyC/k djk;sxhA 6-3-3 izcU/k funs'kd] fidi dk ;g nkf;Ro gksxk fd C;kt eqDr _.k gsrq izkFkZuki=ksa dk fuLrkj.k izkFkZuk i= dh izkfIr ds 3 ekg ds vUnj dj fn;k tk;A izkFkZuk i= vLohd`r fd;s tkus dh n'kk esa vLohdj.k ds dkj.kksa dk mYys[k djrs gq, bdkbZ dks vfxze ,d ekg eas fyf[kr :i ls lwfpr dj fn;k tk;sxkA vLohdj.k ds fo:) bdkbZ vk|ksfxd fodkl foHkkx dks izkFkZuki= ns ldrh gS ftl ij fu.kZ; izLrj 13 esa xfBr lfefr )kjk bdkbZ dks lquokbZ dk volj nsus ds ckn fy;k tk;sxkA 6-3-4 C;kt eqDr _.k dh lqfo/kk dk ykHk mBkus ds i'pkr~ _.k Hkqxrku dh vfUre frfFk ds vxys 5 o"kZ rd bdkbZ cUn u dj nh tk; bl gsrq O;oLFkk eseksjsUMe vkQ vUMjLVsafMx ¼,e0vks0;w0½ ds ek/;e ls fidi )kjk dh tk;sxhA 6-3-5 ik= bdkbZ;ksa )kjk fidi esa ;kstukUrxZr miyC/k djk;s x;s _.k izkFkZuk i=ksa dh leqfpr tkapksaijkUr bdkbZ dk izLrko ijh{k.k lfefr ds le{k ijh{k.k gsrq izLrqr djsxh rFkk ijh{k.k lfefr viuh laLrqfr ds lkFk mPp Lrjh; lfefr dks HkstsxhA 6-3-6 mPp Lrjh; lfefr )kjk fy;s x;s fu.kZ; ds vuq:i ik= bdkbZ dks miyC/k gksus okyh C;kteqDr _.k dh /kujkf'k ds lEcU/k esa vkns'kksa dk fdz;kUo;u uksMy ,tsUlh ¼fidi½ )kjk lqfuf'pr fd;k tk;sxkA 6-3-7 mPp Lrjh; lfefr ds vuqeksnuksijkUr fidi C;kt eqDr _.k Lohd`fr ds vkns'k dh izfr vkS|ksfxd fodkl foHkkx rFkk ik= bdkbZ dks miyC/k djk;sxkA rnuqlkj ;kstukUrxZr visf{kr C;kt eqDr _.k dh /kujkf'k dh O;oLFkk voLFkkiuk ,oa vkS|ksfxd fodkl vuqHkkx&6 mRrj izns'k 'kklu )kjk m|ksx foHkkx ds ctV ls djkrs gq,] fidi dks miyC/k djk;k tk;sxkA 6-3-8 fidi dks Lohd`r _.k dk ys[kk 'kh"kZd] ;fn iwoZor~ tkjh ;kstuk ls lEcfU/kr 'kklukns'kksa ds vUrxZr dj yh x;h gks rks mDr ys[kk 'kh"kZd esa ctV O;oLFkk dh tk;s vU;Fkk ys[kk 'kh"kZd ds vkoaVu lEcU/kh dk;Zokgh foRr foHkkx )kjk dj yh tk;sA 6-3-9 ;kstukUrxZr izR;sd o"kZ olwy gq, _.k rFkk C;kt dh /kujkf'k dks mlh o"kZ esa mijksDr _.k ys[kk 'kh"kZd ds izkfIr i{k esa tek fd;k tk;sxkA 6-3-10 vkS|ksfxd fodkl foHkkx mijksDr _.k ys[kk 'kh"kZd ds fu;a=d o izkDdyu vf/kdkjh gksaxsA os ys[kk 'kh"kZd ds ctV ,oa iqujhf{kr vuqeku izLrkfor djsaxs rFkk vko';drkuqlkj vuqiwjd ekWx dk izLrko djsaxsA 6-3-11 ;kstukUrxZr fn;s x;s _.k dh okilh mijksDr izLrj 6-1-2] 6-1-3] 6-1-4 esa mfYyf[kr vof/k 7 o"kZ] 15 o"kZ vFkok 10 o"kZ tSls Hkh n'kk gks dh lekfIr ds Bh ckn dh frfFk rd ik= bdkbZ )kjk ,deq'r :i esa uksMy ,tsUlh ¼fidi½ dks cSadM~kQ~V@bysDVªkfud fDy;jsUl ds ek/;e ls dh tk;sxhA 6-3-12 fu/kkZfjr vof/k esa _.k jkf'k okil u djus ij ik= bdkbZ dks nsjh dh vof/k ds fy, 1-25 izfr'kr izfrekg dh nj ls lk/kkj.k C;kt nsuk gksxkA izR;sd ekg vFkok mlds Hkkx dks b gsrq ,d ekg ekuk tk;sxkA 6-3-13 ik= bdkbZ )kjk okil dh x;h /kujkf'k dk lek;kstu igys C;kt esa fd;k tk;sxkA mlds i'pkr~ vo'ks"k /kujkf'k dk lek;kstu ns; ewy/ku ¼C;kt eqDr _.k dh /kujkf'k½ esa fd;k tk;sxkA 6-3-14 ik= bdkbZ )kjk C;kt eqDr _.k dh lqj{kk gsrq ifCyd lsDVj cSad ls C;kt eqDr _.k ds lerqY; /kujkf'k dh cSad xkjUVh] _.k vnk;xh dh lEiw.kZ vof/k ds fy, miyC/k djk;sxh ;fn bdkbZ )kjk izkjEHk eas mijksDr cSad xkjUVh dsoy ,d o"kZ dh vof/k dh miyC/k djk;h tkrh gS] rks bls izR;sd o"kZ tc rd C;kt eqDr _.k dh vnk;xh u gks tk;s rc rd cSad xkjUVh dk uohuhdj.k cSax xkjUVh dh vof/k lekIr gksus ds ,d ekg iwoZ djkrs gq, uksMy ,tsalh dks miyC/k djk;sxhA cSad xkj.Vh le; ij uohuhdj.k u djk;s tkus dh n'kk esa uksMy ,tsalh dks vfUre :i ls fu.kZ; ysrs gq, mDr dks dS'k djkus dk vf/kdkj gksxkA mDr ds vfrfjDr ik= bdkbZ;ksa )kjk _.k izkIr djus ds mijkUr rFkk mDr _.k dh ns;rk dh frfFk ds iwoZ ;fn fdlh dkj.k ls forFk gksus dh n'kk esa bdkbZ )kjk cdk;k ns;ksa dh /kujkf'k ij 1-25 izfr'kr izfrekg dh nj ls lk/kkj.k C;kt Hkh nsuk gksxk rFkk mDr jkf'k dh lqj{kk rFkk vnk;xh ds tksf[ke dks U;wure fd;s tkus gsrq ;ktukUrxZr ns; C;kt dh olwyh fd;s tkus gsrq ik= bdkbZ dksysVjy lsD;wfjVh vFkok bdkbZ dh ifjlEifRr;ksa ij izFke vFkok ikfjiklw izFke pktZ Hkh 'kklu@uksMy ,tsUlh ds i{k eas l`ftr djk;sxhA izR;sd ekg vFkok mlds Hkkx dks bl gsrq ,d ekg ekuk tk;sxkA ik= bdkbZ )kjk uksMy ,tsUlh ¼fidi½ ls bl lEcU/k esa vko';d vuqcU/k fu"ikfnr djsxhA 6-3-15 fu/kkZfjr frfFk ij C;kt eqDr _.k ds Hkqxrku dh okilh u fd;s tkus dh n'kk esa fidi ik= bdkbZ dks ^dkj.k crkvks uksfVl* tkjh djssaxs rFkk lUrks"ktud mRrj u izkIr gksus ij ik= bdkbZ )kjk miyC/k djk;h x;h cSad xkjUVh Hkquk dj C;kteqDr _.k dh olwyh djsaxsA C;kt eqDr _.k vFkok mDr jkf'k ij ns; C;kt dh jkf'k 'ks"k jg tkus dh n'kk esa bdkbZ ds fo:) cdk;k jkf'k dh Hkw&jktLo ds :i esa olwyh izek.k&i= tkjh djsaxs rFkk vko';drkuqlkj U;k;ky; esa okn Hkh nk;j djsaxs ;k vU; leqfpr fof/kd dk;Zokgh djsaxs o fyfeVsM dEiuh dh n'kk esa mlh ckbfUMaxvi ds fy, l{ke U;k;ky; ls vuqjks/k djsaxsA 6-3-16 fidi )kjk vf/kd`r vf/kdkjh ik= bdkbZ dh QSDVªh] nqdku] xksnke] okgu vkfn vfHkys[kksa dk fujh{k.k dj ldrs gSa ftlls lqfuf'pr~ fd;k tk lds fd bdkbZ )kjk ;kstuk dh 'krksZZa dk mYya?ku rks ugh fd;k tk jgk gSA 6-3-17 bl ;kstuk ds vUrxZr C;kteqDr _.k dh lqfo/kk mUgha ik= bdkbZ;ksa dks Lohd`r dh tk;sxh tks jkT; ljdkj] dsUnz ljdkj vFkok foRrh; laLFkkvksa ds ns;ksa ds Hkqxrku eas fofrFkh (Defaulter) u gksa rFkk bl lEcU/k esa vko';d izek.k i= muds )kjk fidi dks miyC/k djk;k tk;sxkAß The new scheme has been introduced only on account of coming into force of the V.A.T. Act 2008 without showing any supervening public interest in this regard in the form of any loss to the public exchequer, that too, when this very plea has already been rejected in the earlier round of litigation as discussed hereinabove. Thus, in this context also, the judgment dated 5.11.2015 created a bar, therefore, the government has acted illegally.
We find force in the submissions of the learned counsel for the petitioners that supercession of the earlier policy, apart from being in the teeth of the judgment dated 5.11.2015, is prejudicial to them as it would not only involve bureaucratic wrangles including possibilities of oppression and exploitation, but would also restrict their cash-flow as they would first have to pay tax and then avail the benefit under the new policy, which would be time-taking apart from being contrary to the promise made to them by the State earlier. Under the earlier policy the admitted tax liability was to be automatically treated as interest-free loan without there being any requirement to first pay it and then avail the benefit after it being sanctioned. The retrospectivity given to the new policy with effect from 1.6.2006 adds to the financial liability and increases the woes of the petitioners. It further complicates the scenario as the new scheme requires the payment of penal interest and penalty on V.A.T. which was due with effect from the date trade-tax/V.A.T. became due, if it was not paid in time, whereas, under the earlier policy there was no such condition and all that was required to be done was to file the tax return with the Trade Tax Department with copies to PICUP which was to act as a Secretariat of the Government for this purpose and thereafter the latter was required to transmit the tax payable to the Trade Tax Department by way of "Book Transfer", thus, there was no actual payment of tax which in fact automatically got converted into interest-free loans payable after 7 or 15 years. As already indicated earlier, Clause 2.3 of the government order dated 30.11.2006 is very relevant in this regard as it envisaged any subsequent change in the enactment, while holding out the promise contained therein to the petitioners. The Government Order dated 22.9.2016 goes against the promise made to the petitioners under the earlier policy and the adjudication of the same by this Court on 5.11.2015.
There is another aspect of the matter which needs to be considered that is the restriction of the benefits under the earlier Policy to the capital investments made till 31.5.2009 which we find to be clearly in conflict with the promise held out to the petitioners in clause 2.12.2 of the government order dated 30.11.2016 on the same reasoning as mentioned in the judgment dated 5.11.2015. Clause 2.12.2. of government order dated 30.11.2006 in this regard reads as under:-
Þ2-12-2 % fu/kkZfjr frfFk rd :- 100 djksM+ ls vf/kd dk LFkk;h iwWth fuos'k vFkok vfrfjDr LFkk;h iwWth fuos'k iwjk dj ysus ds i'pkr~ mlh bdkbZ@dEiuh )kjk fu/kkZfjr frfFk ls 3 o"kZ rd mlh ifjlj esa vFkok izns'k esa fdlh vU; LFkku eas fd;s x;s LFkk;h iwWth fuos'k@vfrfjDr LFkk;h iwWth fuos'k dks LFkk;h iwWth fuos'k dh x.kuk esa 'kkfey fd;k tk;sxkA ;fn ,slh bdkbZ;kW dEiuh vf/kfu;e] 1956 ds vUrxZr ,d gh lesfdr ¼dUlksfyMsVsM½ cSysal'khV cukrh gksAß The ''Nirdharit Tidhi' mentioned in the above quoted clause was ''31.5.2009'. The reasons given in the impugned order dated 30.6.2016 and 22.9.2016 in this regard are absolutely unreasonable bordering on absurdity. To say that the Policy was cancelled on 3.8.2007 and the letter of comfort had not been issued by then, therefore, no preliminary activities could be undertaken in respect of any additional investment made after 31.5.2009 as such no benefits would be made available for these investments does not appeal to reason. There is no such requirement in the policy of undertaking separate preliminary activities for any additional investment in terms of clause 2.12.2 made after 31.5.2009 nor is there any specific requirement of an additional or second letter of comfort in this regard. The preliminary activities had already been completed by the petitioners and this was not disputed before us at any stage, not even in the earlier round of litigation, therefore, whatever was to be undertaken thereafter was an additional investment in terms of clause 2.12.2. The decision as taken in this regard in the impugned orders runs directly in the face of the promise held out in clause 2.12.2 under which any additional investment made, as referred therein, after 31.5.2009, would be included in the capital investment and benefits of subsidy and interest-free loan would be admissible accordingly on such additional investment made after 31.5.2009.
In this regard we are also persuaded by the fact that this date 31.5.2009 does not find mention in the government order dated 3.8.2007 under which the claim of the petitioners was accepted vide judgment dated 5.11.2015 and under which they claim the benefits in question. This date was introduced as a cut off for availing the benefit under the government order dated 3.8.2007 for the first time in clause 6(4) of the government order dated 11.2.2015 which has already been quashed by this Court on 5.11.2015, therefore, it could not have been re-introduced by the impugned government orders dated 30.6.2016 and 22.9.2016.
Moreover, we do not find any rational basis of the said date for the benefits claimed by the petitioners under the Policy nor any rational nexus with the object which was sought to be achieved by the said Policy dated 1.6.2006 as amended from time to time, as also the government order dated 3.8.2007. The said date was relevant as per clause 2.2 of the government order dated 30.11.2016 only for commencement of production by new industrial units for qualifying for the benefits thereunder and it is nobody's case that the petitioners did not commence production by the said date, therefore, this appears to be, as stated earlier, an unjustified act of the State to deny the benefits promised to the petitioners by modes impermissible in law that too after the petitioners acted upon such promise.
As regards the contention of the counsel for the State about the necessity of issuance of another letter of comfort in respect of the additional investments made other than the project cost mentioned in the first letter, we are of the view that there is no such specific requirement in the Policy. Furthermore, if at all such additional or second letter of comfort is required to be issued, this can very well be done subsequently as there appears to be no bar or time-limit in this regard, especially as, the benefits under the earlier policy continue in terms of paragraph 2 of the government order dated 30.8.2007, therefore, all formalities required to be adhered by either of the parties can be undertaken and completed, unless of course there was a specific bar in this regard but none has been shown to us. Moreover, this plea is also barred by the principle of Constructive Res-judicata.
Having promised to the petitioners the benefits aforesaid and this Court having accepted the same vide judgment dated 5.11.2015 as noticed hereinabove, it is not open for the State to resile from it. Apart from being illegal it also does not send a good message to entrepreneurs who as a result would be wary and reluctant to invest in the State of U.P. As regards the plea of Dr. L.P. Mishra that the plea of promissory estoppel does not apply to sovereign functions of the State, apart from the fact that this plea also stands concluded by the judgment dated 5.11.2015, the same has been repelled by the Supreme Court in the Court of Manvelsons Hotel (P) Ltd. v. State of Kerala, (2016) 6 SCC 766.
The contention of Dr. Mishra that the earlier decisions of the High Power Committee, including the decision for issues of letters of comfort to the petitioners after 3.8.2007 and the earlier disbursement of subsidies to some of the units were contrary to the government policy, hence not binding on the State, is unacceptable, firstly, for the reason, the decisions, except the one taken in the meeting dated 14.6.2016, were in accordance with government policy, secondly, the High Power Committed comprised of High Functionaries of the Government, such as Chief Secretary, U.P., who was its Chairman and, the Principle Secretaries of Finance, Planning, Law, Industrial Development Department of the Government etc., who were acting on behalf of the Government as per its policy, that too, with the aid of the Evaluation Committee all of whom were well aware of the State's policy. Reference may be made in this regard to clause 11, 11.1, 11.2, 11.3, 11.4 and 11.5 of the government order dated 30.11.2006. The subsequent volte face is merely a matter of convenience of the Government which is unfair and illegal.
Although Tata Motors Ltd. had not filed any petition earlier challenging the relevant government orders dated 18.11.2011 and 11.2.2015, the same pertained to a matter of policy which was applicable to all Industrial Units which had acted in terms of the Policy of the State and they having been quashed by this Court vide judgment dated 5.11.2015 in toto without any exception, the benefit of the said judgment would have to be extended to it also. The Government Orders impugned are also applicable to it, therefore, for the reasons aforesaid, it is also entitled to the benefits promised by the State. The deposit of V.A.T. by it and other petitioners, if it is so, so as to avoid penal action, considering the fluid situation regarding implementation of the Policy as also the pending litigation, is not a circumstance which can be made a ground to deny the benefit of interest-free loan promised under the earlier Policy.
In view of the above discussion we are not persuaded by the arguments advanced by Dr. L.P. Mishra and Sri Gaurav Mehrotra nor by the pleadings made on behalf of the State and the ''reports' cited on its behalf, to sustain the impugned government orders, which, for reasons aforesaid, are hereby quashed.
The State shall now proceed to grant the benefit of subsidies and interest-free loan to the petitioners as promised by it vide government order dated 1.6.2006 as amended from time to time, read with the government order dated 3.8.2007. The question of eligibility of the petitioners for such benefit is not open for consideration by the State any more. As regards the subsidies, the calculation shall be made in terms of the aforesaid Policy and the said benefits shall be extended to the petitioners, accordingly. With regard to the interest-free loans similar ascertainment shall be made in terms of the Policy and this benefit shall be extended to the petitioners, subject of course to any other relevant condition in the Policy such as time limit for submitting application for such benefit etc., as, clause 6 of the government order dated 30.11.2006 refers to a time limit of one month from the end of the financial year in this regard.
Sri K.S. Pawar, Advocate appearing for Gallant Ispat Ltd. Contended that his client was entitled to Additional capital subsidy in terms of government order dated 15.2.2007 and High Power Committee Meeting dated 10.11.2009. This shall also be considered accordingly.
Compliance of this judgment shall be made within 3 months from the date a certified copy of this order is submitted.
We are informed that for one of the petitioners it is the 11th round of litigation for seeking the benefits discussed hereinabove while for another it is the 6th round of litigation. Except for Tata Motors, for all others, it is the second round of litigation. We hope and trust that the State Government will not turn this into an unending litigation betraying the trust reposed by industrial units in it and leading to unnecessary wastage of time, energy and money before the Courts.
With these observations, the writ petitions are allowed in the aforesaid terms.
Order Date :- 22.03.2018
R.K.P./A. Nigam (Prashant Kumar,J.)
(Rajan Roy,J.)