Bombay High Court
Indapur Dairy And Milk Products Ltd vs State Of Maharashtra And Anr on 26 April, 2023
Bench: G.S. Patel, Neela Gokhale
9-ASWP-1819-2023.DOC
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1819 OF 2023
Indapur Dairy and Milk Products Ltd ...Petitioner
Versus
State of Maharashtra & Anr ...Respondents
Mr AA Kumbhakoni, Senior Advocate, i/b Tejas Deshmukh, for the
Petitioner.
Mrs AA Purav, AGP, for the Respondent-State.
Mr Shipurkar, Commissioner, with Marale, Deputy Secretary,
Dairy Department, are present.
CORAM G.S. Patel &
Neela Gokhale, JJ.
DATED: 26th April 2023
PC:-
SHEPHALI
SANJAY
MORMARE
Digitally signed
by SHEPHALI
1. We passed the following order on 20th March 2023. There is SANJAY MORMARE Date: 2023.04.26 18:55:30 +0530 an Interim Application filed by the State Government seeking an extension of two months to comply. It is to be finally numbered. The Interim Application is astonishing, not for what it says, but for what it does not say. Our order of 20th March 2023 is reproduced below:
"1. The issue in the Petition is narrow. The Petitioner seeks the release of an assured subsidy for the export of milk powder. Prayer (b) of the Petition at pages 17 and 18 read thus:Page 1 of 5
26th April 2023 ::: Uploaded on - 27/04/2023 ::: Downloaded on - 27/04/2023 15:26:25 ::: 9-ASWP-1819-2023.DOC "b. This Hon'ble Court be pleased to issue writ of mandamus or any other appropriate writ, order or direction, directing Respondent No.1 to immediately act upon its order dated 04.03.2022 (Exhibit K) read with report dated 26.05.2022 (Exhibit L) by paying to the Petitioner the amount of Rs.24,87,50,000/- to which the Petitioner is entitled to under Government Resolution dated 31.07.2018 as has been confirmed by order dated 04.03.2022 (Exhibit K), along with interest at the rate of 12% p.a. from the date it became due to the Petitioner till its actual realisation as demonstrated by the table annexed hereto and marked as Exhibit N:"
2. The reference is to a Government Resolution dated 31st July 2018. This has been confirmed by an order of 4th March 2022. We leave aside the question of interest for the present.
3. There is an Affidavit in Reply filed by the Commissioner, Dairy Development Mumbai on behalf of Respondents Nos. 1 and 2. In paragraph 4, the reference is to a previous order which directed the Principal Secretary, Dairy Development to hear the Petitioners and decide within three months the entitlement of the Petitioner to receive an export subsidy from the State Government. The Affidavit says that the Principal Secretary held the hearing and passed a detailed order on 4th March 2022. This is the order referred to in prayer clause (b) at Exhibit 'K'. But the Affidavit then says that the Finance Department has advised that the matter needs to be placed before the Cabinet for sanction and approval. The Affidavit says the process will take about six months.
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4. We understand paragraph 3 but do not follow why Cabinet approval is required since this is in the routine course following an order and which itself is based on a GR, neither of which is disputed.
5. For the present, we direct the State Government to act on the order of 4th March 2022 without delay in regard to the principal amount stated in that order. We leave the question of interest pending for the present. That order is to be implemented and the amount disbursed by 24th April 2023.
6. List the matter on 26th April 2023 for further orders."
2. Exhibit "K" to the Petition at page 67 is a detailed order of 13 pages by none other than the Principal Secretary, Dairy Department accepting the basis of the Petitioner's claim. This was an order of 4th March 2022 and we have referred to it in our order of 20th March 2023. On 24th March 2022, the Dairy Development Department, following the order of the Principal Secretary of 4th March 2022 computed exactly the amount that is payable.
3. The Interim Application is short and is worth reproducing in full. This is what it says:
"1. In the above matter, by Order dated 20.3.2023, this Hon'ble Court has directed the State Government to act on order of 4.3.2022 without delay and pay the principle amount before on or before 24.4.2023. The Hon'ble Court also leave the question of interest pending for the present.Page 3 of 5
26th April 2023 ::: Uploaded on - 27/04/2023 ::: Downloaded on - 27/04/2023 15:26:25 ::: 9-ASWP-1819-2023.DOC Copy of the Order dated 20.3.2023 is hereto annexed and marked as Exhibit '1'.
2. As per the direction given by Hon'ble Court necessary proposal had been moved to finance department. However finance department advised to examine and calculate admissible dues avoiding financial irregularities and duplicity of payment. Accordingly, reports were called from Commissioner, Dairy Department and submitted the proposal again to finance department on 20/4/2023. Therefore the file is now with finance department for final approval. Finance department has requested to take some extension of time from Hon'ble Court.
3. In the above facts, considering the finance department's abovementioned advice, State Government had requested by sending letter dated 5.4.2023 to Government Pleader, to request Hon'ble High Court, Mumbai to grant two months of time. Hereto annexed and marked Exhibit '2' is the copy of letter dated 5.4.2023.
4. If the finance department approve the file, two months of time will be required for disbursement of admissible amount as proposal also requires approval for re-appropriation of funds from one budget head to concern budget head.
5. Therefore, the State Government wants time of two months more for the implementation of order dated 20.3.2023 of this Hon'ble Court.
6. It is therefore, prayed that, Page 4 of 5 26th April 2023 ::: Uploaded on - 27/04/2023 ::: Downloaded on - 27/04/2023 15:26:25 ::: 9-ASWP-1819-2023.DOC a. The time granted to the Applicant to comply the Order dated 20.3.2023 for disbursement the amount be extended by two months more from the date of Order in this Application.
b. Such further reliefs as may be necessary, be granted in favour of the Applicant.
c. Costs of this Application be provided for."
4. We are fully unable to understand how the Finance Department can purport to sit in Appeal over Principal Secretary, Dairy Development. We trust that the Finance Department is not saying that it has the authority to sit in appeal over a Division Bench of this Court, or for that matter any Judge of this Court. Yet that is precisely what seems to be suggested because paragraph 4 of the Interim Applications says that if the Finance Department approves the file then two months is required for a disbursement. There is no if. There is no but. The Finance Department is not authorise to decide whether or not to approve the file, whatever that is supposed to mean. The Finance Department is supposed to clear a file within the time permitted by the Court and act in accordance with orders of this Court. The application for an extension of two months is rejected. Payment will be made in accordance with our 20th March 2023 order and in terms of the amounts at Exhibit "L" at page 81 of the Petition no later than by 10th May 2023. If that is not done, we will proceed to enforce our order if necessary in contempt.
(Neela Gokhale, J) (G. S. Patel, J) Page 5 of 5 26th April 2023 ::: Uploaded on - 27/04/2023 ::: Downloaded on - 27/04/2023 15:26:25 :::