Gujarat High Court
Universal Sompo General Insurance Co. ... vs State Of Gujarat on 30 September, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10523 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD.
Versus
STATE OF GUJARAT
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Appearance:
MR. MIHIR JOSHI, SENIOR COUNSEL with
MR. MITUL SHELAT with MS. RAVEENA KINKHABWALA with
MS DISHA N NANAVATY(2957) for the Petitioner(s) No. 1
MS JYOTI BHATT, AGP for the Respondent(s) No. 1
MR PATHIK M ACHARYA(3520) for the Respondent(s) No. 2,3,4,5,6,7,8,9
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 30/09/2022
ORAL JUDGMENT
1. With the joint request of the learned advocate for the parties, the matter has been heard finally at admission stage.
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2. The petitioner has filed the present petition under Article 226 and 227 of the Constitution of India for the following reliefs:-
(A) This Hon'ble Court may be pleased to issue a writ of Mandamus or any other writ order or direction to quash and set aside the order of the State Government at Annexure B. (B) As an ad interim ex parte relief stay the order of the State Government at Annexure B. (C) This Hon'ble Court be pleased to issue a Writ of Mandamus or any other appropriate writ, order or direction directing the Respondent No. 1 to release an amount of Rs.
216.93 crores towards the pending state share of subsidy for Kharif Season 2019 to the Petitioner.
(D) Your Lordships be pleased to pass such other and further orders as the facts and circumstances of the case may require." Page 2 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022
3. The brief facts giving rise to the present petition are as under:-
3.1. The Central Government has notified Pradhan Mantri Fasal Bima Yojana (hereinafter referred to as PMFBY) in the year 2016 for the benefit of the farmers against the loss/ failure of the crop due to natural calamities, paste and disease. The said scheme came to be revised by the Central Government from time to time. The object of the scheme was to provide insurance coverage to the farmers regarding unforeseen loss of crop, due to inundation and other perils. It is implemented through the agricultural department of the State Government.
3.2. The petitioner is the insurance company for the year 2019-20 for various districts as Surendranagar, Amreli, Anand and Patan etc. It is alleged by the farmers that in the year 2019, due to heavy rain, Page 3 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 flood and excessive rain in whole district, Surendranagar and Morbi, most of the crops of the farmers were damaged and therefore they have allegedly suffered huge crop loss in both the districts. Many of the farmers who have intimated their claims were not paid. Therefore they approached this Court by filing a SPCA writ application No.12184 of 2020. This Court by an order dated 27.10.2020 dismissed the petition but directed the State Government to look into the representations of the farmers. On that basis the State Government has issued the impugned order no.2624-28/2021 dated 12.05.2021 by which it is directed to the petitioner to pay the claims by over- riding the guidelines issued by the Central Government. This order of the Government has been challenged by way of this petition, and with the further direction to the State Government to release the pending subsidy of Rs.216,93,31,438/-. Page 4 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 3.3. It is contended by the petitioner that they have made several representations to the Government for releasing the subsidy. The petitioner has referred to various communications in the petition, requesting the State Government for release of the share of the premium and the subsidy thereof as per the scheme framed by the Central Government. According to the petitioner, due to non receipt of the premium of subsidy amount from the State Government, payment to the farmers are getting delayed. According to the petitioner, it is bound by the guidelines issued by the IRDAI and the Government from time to time. According to it, as per the regulations, the premium subsidy is to be received by the petitioner within a given time frame. It is also contended that the delay in the release of subsidy is resulting in the delay in settlement of the claims of the farmers and is also adversely affecting the financial position and solvency margin of the petitioner as mandated by IRDAI. The petitioner has Page 5 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 also referred to various clauses of the operational guidelines which provides that the State Government has to release the State share of premium subsidy within three months from the premium requisition failing which the interest @10% per annum per month would levy penalty on the State Government.
3.4. The petitioner has also referred to various definitions incorporated in the scheme and the guidelines which includes, "actual yield", "crop cutting expenses", "national threshold yield" etc. and various clauses thereof. It is contended by the petitioner that on one hand the State Government has failed to release the amount to the petitioner towards the State share of subsidy and on the other hand the respondent no.1 has directed the petitioner to make payment to the farmers in Surendranagar District towards their claims for Kharif season 2019 in the PMFBY scheme. It is contended that the Page 6 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 respondent no.1 cannot be permitted to take advantage of their own wrong. On all these grounds, the petitioner has filed the present petition and prayed for the aforesaid reliefs.
4. Respondent no.1 has filed its affidavit in reply and in detailed referred to various provisions of the scheme and the Government Resolutions. The main contention of the respondent is that under the scheme, the State Government's total share of premium subsidy for Kharif pak 2019 season is Rs.396.93 crores/- out of which Rs.180 crore/- already released to the insurance company. It is contended that the insurance company has rejected total 53,115 applications under localised calamities and post harvest in Kharif 2019 season on the ground of 15 days delay in intimation from normal harvest time and other reasons. It is contended that the State Government has imposed penalties on insurance company for non-adherance to the terms Page 7 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 and conditions of the work order dated 04.07.2019 such as late payment of claims, insufficient/ absent empower at local level, non operating of office at local level etc. for the Kharif 2018 and Kharif 2019. According to the respondent, due to this fact, the part of the subsidy is pending due to above pending claims and imposed penalties to the insurance company. Thus, it had supported its case of non release of the subsidy in favour of the plaintiff.
5. The petitioner has filed rejoinder at page no.224 of the petition memo. It has reiterated its stand in the petition and has submitted that the respondent no.1 failed to appreciate that the State share of subsidy is in effect in nature of the insurance premium which is required to be received by the insurance company for the disbursement of the insurance claim. Non release of the subsidy by the State Government ultimately adversely affects the interest of the farmers as the receipt of subsidy is a prerequisite for Page 8 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 the disbursement of the claims to the farmers as per the provisions of the Revised Operational Guidelines. According to it, admittedly more than 50% of the State share and Central Government share of subsidy has not been received by the petitioner till date. Despite that, the petitioner has settled localized claim of farmers for an amount of Rs.40 crores/-. It is specifically stated that the claim for an amount of Rs.118.79 crores/- are outstanding due to non receipt of subsidy. It is contended that it had already communicated to the Government authorities that in addition to Rs.118.79 crores/-, an amount of Rs.59 crores/- will also be paid by the company to the farmers upon receipt of subsidy.
6. Heard learned senior counsel Mr.Mihir Joshi assisted by Mr.Mitul Shelat with Ms.Disha Nanavaty with Ms.Raveena Kinkhabwala for the petitioners, learned AGP Ms.Jyoti Bhatt for the respondent-State and learned advocate Mr.Pathik Acharya for the Page 9 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 private respondent at length. Perused the materials placed on record and the decisions cited at bar.
7. Learned senior counsel Mr.Mihir Joshi has submitted the same facts which are narrated in the memo of petition as well as in rejoinder affidavit and further affidavit filed in the petition. His main contention is that the scheme was implemented by the Central Government and according to this scheme, the premium for insurance has to be paid by the Central Government as well as State Government. He has submitted that subsidy is nothing but a form of a premium to be paid by the Central Government and State Government. He has submitted that in absence of any premium paid, no insurance company can pay any amount to the insured, even if there is a loss to the farmers. While referring to various communications and the provisions of the scheme and operational guidelines, Mr.Joshi has submitted that the State Government has withheld the payment Page 10 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 of subsidy, which is in the nature of premium, contrary to the Government Resolutions. He has also submitted that even the Central Government has already directed the State Government to release the subsidy and also directed that, if any penalty needs to be imposed upon the insurance company then it cannot be recovered from the amount of subsidy which is to be paid as a premium. He has submitted that the State Government has withheld the amount which is towards the premium. He has also submitted that the reasons assigned by the State Government for withholding the subsidy is not in consonance with the scheme and directions of the Central Government. While referring to Section 64B of The Insurance Act, 1938, he has submitted that in any insurance, there is prerequisite of prepayment of the premium. He has submitted that the stand taken by the State Government is against the provisions of statute as well as directions of the Central Government. He has submitted that the Page 11 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 payment is pending to be made to the farmers due to non receipt of the premium from the State Government. He has submitted that therefore this Court be pleased to direct the State Government to release the amount of premium which is in the form of subsidy to the petitioner so that the petitioner insurance company can pay the requisite amount to the concerned farmers for the loss they have suffered under the scheme formulated by the Central Government. He has prayed to allow the present petition.
8. Per contra, learned AGP Ms.Jyoti Bhatt for the State has vehemently opposed the petition and has mainly contended that the insurance company has rejected the claim of many farmers on the ground of non receipt of intimation of damage within stipulated period. While referring to the Government communications and affidavit in reply, which she has read in entirety, submitted that there were defect in Page 12 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 the service of the petitioner by not providing sufficient staff and non-availability of requisite system of accepting the claim of the farmers and there is a delay in making payment to the farmers of their legitimate claim. She has submitted that as there was defect in service on the part of petitioner, penalty has been imposed upon the petitioner by the State Government. She has submitted that even as per the correspondence entered into between the parties, unless the petitioner disbursed the requisite amount to the eligible farmers, no subsidy can be released in its favour by the State Government. She has submitted that first of all, the petitioner has to settle the claim of the farmers by making requisite payment and thereafter they can get subsidy, even if it is in the nature of premium. She has also submitted that there is alternative remedy available to the petitioner and therefore this petition may not be entertained. She has also submitted that the present petition involves disputed questions of facts Page 13 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 and therefore this petition may not be entertained and be dismissed. She has relied upon the following decisions:-
(i) In case of Punjab National Bank vs Atmanand Singh reported in (2020) 6 SCC 256, the Apex Court held in para nos.16, 17, 21, 22 and 26 as under:-
"16. Be it noted that on one hand, the case made out by the respondent No. 1 is that he had sold his family gold and the sale proceeds received were deposited in the concerned Branch of the appellant Bank for withdrawal, as the amount was required by him for meeting medical expenses of his ailing son suffering from cancer. At the same time, vide alleged agreement, the respondent No. 1 conveniently agrees to invest the amount for seven (7) years, which circumstance also raises serious doubt about the genuineness of the document. We do not wish to elaborate on the terms set out in the subject agreement except to observe that the Page 14 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 plea taken by the appellantBank about genuineness of the document is debatable (triable) and is not a case of admitted position or indisputable fact, so as to proceed against the appellantBank by directing payment of the amount claimed by the respondent No. 1 (writ petitioner), on the basis of such an agreement.
17. The judgment of the learned single Judge has completely glossed over these crucial aspects and the writ petition has been disposed of in a very casual manner. The Division Bench of the High Court committed the same error in upholding the decision of the learned single Judge. The Division Bench has not even analysed the efficacy of the affidavits filed in support of the stand taken by the appellant-Bank during the pendency of the LPA. It merely reiterates the view taken by the learned single Judge in just two short paragraphs reproduced in paragraph 6 above. It has not analysed the efficacy of the proceedings in Misc. Case No. 04 (DW1) PNB/198990, as well as, the certified copy of the proceedings filed in appeal before it, in the context of affidavits of Bank officials and Page 15 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 report of the District Magistrate. The Division Bench was also misled by the voluminous documents relied upon by the respondent No. 1 and assumed that the same could not be a figment of imagination or a piece of fiction.
21. In Smt. Gunwant Kaur (supra) relied upon by the respondent No. 1, in paragraph 14, the Court observed thus:-
"14. The High Court observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were admitted could only be determined after an affidavit in reply was filed by the State. The High Court, however, proceeded to dismiss the petition in limine. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be Page 16 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for anologous reasons.
22. We restate the above position that when the petition raises questions of fact of complex nature, such as in the present case, which may for their determination require oral and documentary evidence to be produced and proved by the concerned party and also because the relief sought is merely for ordering a refund of money, the High Page 17 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 Court should be loath in entertaining such writ petition and instead must relegate the parties to remedy of a civil suit. Had it been a case where material facts referred to in the writ petition are admitted facts or indisputable facts, the High Court may be justified in examining the claim of the writ petitioner on its own merits in accordance with law.
26. For the view that we have taken, it is not necessary for us to dilate on the decisions of this Court in Bhinka (supra) and Kaliya (supra), which have dealt with the efficacy and admissibility of certified copies of the relevant documents. Be it noted that these decisions are in reference to the suit/trial in the concerned case, where the documents are required to be proved by the party relying upon it by examining competent witnesses to prove the existence thereof and also their contents."
(ii) In case of Commissioner Of Income Tax & Ors. Vs. Chhabil Dass Agarwal reported in Page 18 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 (2014) 1 SCC 603, the Apex Court held in para 11, 12, 13 to 17 as under:-
"11. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non- entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such Page 19 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See: State of U.P. vs. Mohammad Nooh, AIR 1958 SC 86; Titaghur Paper Mills Co. Ltd. vs. State of Orissa, (1983) 2 SCC 433; Harbanslal Sahnia vs. Indian Oil Corpn. Ltd., (2003) 2 SCC 107; State of H.P. vs. Gujarat Ambuja Cement Ltd., (2005) 6 SCC 499).
12. The Constitution Benches of this Court in K.S. Rashid and Sons vs. Income Tax Investigation Commission, AIR 1954 SC 207;
Sangram Singh vs. Election Tribunal, Kotah, AIR 1955 SC 425; Union of India vs. T.R. Varma, AIR 1957 SC 882; State of U.P. vs. Mohd. Nooh, AIR 1958 SC 86 and K.S. Venkataraman and Co. (P) Ltd. vs. State of Madras, AIR 1966 SC 1089 have held that though Article 226 confers a very wide powers in the matter of issuing writs on the High Court, the remedy of writ absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an Page 20 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted.
(See: N.T. Veluswami Thevar vs. G. Raja Nainar, AIR 1959 SC 422; Municipal Council, Khurai vs. Kamal Kumar, (1965) 2 SCR 653; Siliguri Municipality vs. Amalendu Das, (1984) 2 SCC 436; S.T. Muthusami vs. K. Natarajan, (1988) 1 SCC 572; Rajasthan SRTC vs. Krishna Kant, (1995) 5 SCC 75; Kerala SEB vs. Kurien E. Kalathil, (2000) 6 SCC 293; A. Venkatasubbiah Naidu vs. S. Chellappan, (2000) 7 SCC 695; L.L. Sudhakar Reddy vs. State of A.P., (2001) 6 SCC 634; Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha vs. State of Maharashtra, (2001) 8 SCC 509; Pratap Singh vs. State of Haryana, (2002) 7 SCC 484 and GKN Driveshafts (India) Ltd. vs. ITO, (2003) 1 SCC 72).
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13. In Nivedita Sharma vs. Cellular Operators Assn. of India, (2011) 14 SCC 337, this Court has held that where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction for relief and observed as follows:
"12. In Thansingh Nathmal v. Supdt. of Taxes, AIR 1964 SC 1419 this Court adverted to the rule of self-imposed restraint that the writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed: (AIR p. 1423, para 7). "7. ... The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave Page 22 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 the party applying to it to seek resort to the machinery so set up."
13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 this Court observed:
(SCC pp. 440-41, para 11) "11. ... It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford, 141 ER 486 in the following passage: (ER p. 495) '... There are three classes of cases in which a liability may be established founded upon a statute. ... But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. ... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.' The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd., Page 23 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 1919 AC 368 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd., 1935 AC 532 (PC) and Secy. of State v. Mask and Co., AIR 1940 PC 105 It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine."
14. In Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536 B.P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed: (SCC p. 607, para 77) "77. ... So far as the jurisdiction of the High Court under Article 226--or for that matter, the jurisdiction of this Court under Article 32--is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment."" (See: G. Veerappa Pillai v. Raman & Raman Ltd., AIR Page 24 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 1952 SC 192; CCE v. Dunlop India Ltd., (1985) 1 SCC 260; Ramendra Kishore Biswas v. State of Tripura, (1999) 1 SCC 472; Shivgonda Anna Patil v. State of Maharashtra, (1999) 3 SCC 5; C.A. Abraham v. ITO, (1961) 2 SCR 765; Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433; H.B. Gandhi v. Gopi Nath and Sons, 1992 Supp (2) SCC 312; Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1; Tin Plate Co. of India Ltd. v. State of Bihar, (1998) 8 SCC 272; Sheela Devi v. Jaspal Singh, (1999) 1 SCC 209 and Punjab National Bank v. O.C. Krishnan, (2001) 6 SCC 569).
17. In the instant case, the Act provides complete machinery for the assessment/re- assessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy Page 25 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 open to him by an appeal to the Commissioner of Income Tax (Appeals). The remedy under the statute, however, must be effective and not a mere formality with no substantial relief. In Ram and Shyam Co. vs. State of Haryana, (1985) 3 SCC 267 this Court has noticed that if an appeal is from "Caesar to Caesar's wife" the existence of alternative remedy would be a mirage and an exercise in futility. In the instant case, neither has the assessee-writ petitioner described the available alternate remedy under the Act as ineffectual and non-efficacious while invoking the writ jurisdiction of the High Court nor has the High Court ascribed cogent and satisfactory reasons to have exercised its jurisdiction in the facts of instant case."
(iii) In case of Union Of India vs M/S. Puna Hinda reported in (2021) 10 SCC 690, the Apex Court in Page 26 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 para nos. 23 and 24 has held as under:-
"23. The High Court has based its order on the ground that after five monsoons, the final measurements could not be ascertained. If the final measurements could not be done at the spot, the contemporary evidence and the measurement books prepared from time to time could be the basis for determining the liability of the appellants. The Joint Survey Report is not an admitted measurement, though some officers might have signed it. The Report prepared after the completion of work wherein no such work done is reflected in the measurement book prepared during execution of work is an attempt to inflate the claim raised by the writ petitioner. The entire amount claimed by the writ petitioner is disputed. It has been asserted that the entire payment due as against the claim of work order had been made, as reflected from the following table:
I Awarded cost of the work Rs.31.87 Crores under the Contract II Cost of the work already Rs.0.86 Cr.Page 27 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022
C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 executed by the department on the same stretch before the award of work III Cost of the work as reduced in Rs.31.01 Crores view of prior departmental work IV Amended cost of work under Rs.35.03 Crores the Contract V Contract cost in revised DPR Rs. 42.27 Crores processed to Ministry of Road, Transport and Highways VI Payment made to the Rs.42.27 Crores contractor/respondent herein inclusive of Rs.3.86 Crores as per the order dated
18.05.2017 of the Hon'ble High Court VII Contractor's claim as per final Rs. 71. 76 Crores bill dated 23.11.2015
24. Therefore, the dispute could not be raised by way of a writ petition on the disputed questions of fact. Though, the jurisdiction of the High Court is wide but in respect of pure contractual matters in the field of private law, having no statutory flavour, are better adjudicated upon by the forum agreed to by the parties. The dispute as to whether the amount is payable or not and/or how much amount is payable are disputed questions of facts. There is no Page 28 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 admission on the part of the appellants to infer that the amount stands crystallized. Therefore, in the absence of any acceptance of Joint Survey Report by the competent authority, no right would accrue to the writ petitioner only because measurements cannot be undertaken after passage of time. Maybe, the resurvey cannot take place but the measurement books of the work executed from time to time would form a reasonable basis for assessing the amount due and payable to the writ petitioner, but such process could be undertaken only by the agreed forum i.e., arbitration and not by the Writ Court as it does not have the expertise in respect of measurements or construction of roads."
(iv) In case of Assistant Commissioner (CT) LTU, Kakinada v. Glaxo Smith Kline Consumer Health Care Limited. reported in AIR 2020 SC 2819, in para nos. 11, 12, 14 and 15, it is held as under:-
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C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 "11. In the backdrop of these facts, the central question is: whether the High Court ought to have entertained the writ petition filed by the respondent? As regards the power of the High Court to issue directions, orders or writs in exercise of its jurisdiction under Article 226 of the Constitution of India, the same is no more res integra. Even though the High Court can entertain a writ petition against any order or direction passed/action taken by the State under Article 226 of the Constitution, it ought not to do so as a matter of course when the aggrieved person could have availed of an effective alternative remedy in the manner prescribed by law (see Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad now Zila Parishad, Muzaffarnagar and also Nivedita Sharma v. Cellular Operators Association of India and Ors. ). In Thansingh Nathmal and Ors. v. Superintendent of Taxes, Page 30 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 Dhubri and Ors. , the Constitution Bench of this Court made it amply clear that although the power of the High Court under Article 226 of the Constitution is very wide, the Court must exercise self-imposed restraint and not entertain the writ petition, if an alternative effective remedy is available to the aggrieved person. In paragraph 7, the Court observed thus: -
"7. Against the order of the Commissioner an order for reference could have been claimed if the appellants satisfied the Commissioner or the High Court that a question of law arose out of the order. But the procedure provided by the Act to invoke the jurisdiction of the High Court was bypassed, the appellants moved the High Court challenging the competence of the Provincial Legislature to extend the concept of sale, and invoked the extraordinary jurisdiction of the High Court under Article 226 and sought to reopen the decision of the Taxing Authorities on question of fact. The jurisdiction of the High Court under Article 226 of the Constitution is Page 31 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self imposed limitations. Resort that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed.The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where Page 32 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up."
We may usefully refer to the exposition of this Court in Titaghur Paper Mills Co. Ltd. and Anr. v. State of Orissa and Ors., wherein it is observed that where a right or liability is created by a statute, which gives a special remedy for enforcing it, the remedy provided by that statute must only be availed of. In paragraph 11, the Court observed thus: -
"11. Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the Prescribed Authority under sub- section (1) of Section 23 of the Act. If the Page 33 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-section (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act.The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of.This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford [(1859) 6 CBNS 336, 356] in the following passage:
There are three classes of cases in which a liability may be established founded upon statute. . . . But there is a third class, viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it.... The remedy provided by the statute must be followed, and it is not Page 34 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.
The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. (1919 AC
368) and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd. (1935 AC
532) and Secretary of State v. Mask and Co.
(AIR 1940 PC 105). It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine." In the subsequent decision in Mafatlal Industries Ltd. and Ors. v. Union of India and Ors. 12 , this Court went on to observe that an Act cannot bar and curtail remedy under Article 226 or 32 of the Constitution. The Court, however, added a word of caution and expounded that the constitutional Court would certainly take note of the legislative intent manifested in the provisions of the Act and Page 35 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 would exercise its jurisdiction consistent with the provisions of the enactment. To put it differently, the fact that the High Court has wide jurisdiction under Article 226 of the Constitution, does not mean that it can disregard the substantive provisions of a statute and pass orders which can be settled only through a mechanism prescribed by the statute.
12. Indubitably, the powers of the High Court under Article 226 of the Constitution are wide, but certainly not wider than the plenary powers bestowed on this Court under Article 142 of the Constitution. Article 142 is a conglomeration and repository of the entire judicial powers under the Constitution, to do complete justice to the parties. Even while exercising that power, this Court is required to bear in mind the legislative intent and not to render the statutory provision otiose. In a recent decision of a three- Judge Bench of this Court in Oil and Natural Gas Corporation Limited v. Gujarat Energy Transmission Corporation Limited and Ors. , the statutory appeal filed before this Court was barred by 71 days and the maximum Page 36 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 time limit for condoning the delay in terms of Section 125 of the Electricity Act, 2003 was only 60 days. In other words, the appeal was presented beyond the condonable period of 60 days. As a result, this Court could not have condoned the delay of 71 days. Notably, while admitting the appeal, the Court had condoned the delay in filing the appeal. However, at the final hearing of the appeal, an objection regarding appeal being barred by limitation was allowed to be raised being a jurisdictional issue and while dealing with the said objection, the Court referred to the decisions in Singh Enterprises v. Commissioner of Central Excise, Jamshedpur and Ors. , Commissioner of Customs and Central Excise v. Hongo India Private Limited and Anr. , Chhattisgarh State Electricity Board v. Central Electricity Regulatory Commission and Ors. and Suryachakra Power Corporation Limited v. Electricity Department represented by its Superintending Engineer, Port Blair and Ors. and concluded that Section 5 of the Limitation Act, 1963 cannot be invoked by the Court for maintaining an appeal beyond maximum prescribed period in Section 125 of the Electricity Act.
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14. In this regard, another Constitution Bench in Supreme Court Bar Assn. v. Union of India, (1998) 4 SCC 409 : (AIR 1998 SC 1895 : 1998 AIR SCW 1706)] opined: (SCC pp. 43738, para
56) "56. As a matter of fact, the observations on which emphasis has been placed by us from the Union Carbide case [Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584 : (AIR 1992 SC 248)], A.R. Antulay case [A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 : (AIR 1988 SC 1531)] and Delhi Judicial Service Assn. v. State of Gujarat, (1991) 4 SCC 406 : (AIR 1991 SC 2176 : 1991 AIR SCW 2419), go to show that they do not strictly speaking come into any conflict with the observations of the majority made in Prem Chand Garg case [Prem Chand Garg v. Excise Commr., AIR 1963 SC 996]. It is one thing to say that "prohibitions or limitations in a statute" cannot come in the way of exercise of jurisdiction under Article 142 to do complete justice between the parties in the pending "cause or matter" arising out of that statute, but quite a different thing to say that while exercising jurisdiction under Article 142, this Court can altogether ignore the Page 38 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 substantive provisions of a statute, dealing with the subject and pass orders concerning an issue which can be settled only through a mechanism prescribed in another statute. This Court did not say so in Union Carbide case [Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584 : (AIR 1992 SC 248)] either expressly or by implication and on the contrary it has been held that the Apex Court will take note of the express provisions of any substantive statutory law and regulate the exercise of its power and discretion accordingly. ..."
15. From the aforesaid decisions, it is clear as crystal that the Constitution Bench in Supreme Court Bar Assn. v. Union of India, (1998) 4 SCC 409 : (AIR 1998 SC 1895 : 1998 AIR SCW 1706), has ruled that there is no conflict of opinion in Antulay case [A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 : (AIR 1988 SC 1531)] or in Union Carbide Corpn. case [Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584 : (AIR 1992 SC 248)] with the principle set Page 39 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 down in Prem Chand Garg v. Excise Commr., AIR 1963 SC 996. Be it noted, when there is a statutory command by the legislation as regards limitation and there is the postulate that delay can be condoned for a further period not exceeding sixty days, needless to say, it is based on certain underlined, fundamental, general issues of public policyas has been held in Union Carbide Corpn. case [Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584 :
(AIR 1992 SC 248)]. As the pronouncement in Chhattisgarh SEB v. Central Electricity Regulatory Commission, (2010) 5 SCC 23 : (AIR 2010 SC 2061 : 2010 AIR SCW 2680), lays down quite clearly that the policy behind the Act emphasising on the constitution of a special adjudicatory forum, is meant to expeditiously decide the grievances of a person who may be aggrieved by an order of the adjudicatory officer or by an appropriate Commission. The Page 40 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 Act is a special legislation within the meaning of Section 29(2) of the Limitation Act and, therefore, the prescription with regard to the limitation has to be the binding effect and the same has to be followed regard being had to its mandatory nature.To put it in a different way, the prescription of limitation in a case of present nature, when the statute commands that this Court may condone the further delay not beyond 60 days, it would come within the ambit and sweep of the provisions and policy of legislation. It is equivalent to Section 3 of the Limitation Act. Therefore, it is uncondonable and it cannot be condoned taking recourse to Article 142 of the Constitution."
9. Learned advocate Mr.Acharya for the private respondent has submitted that the petitioners have filed the petition earlier in view of the directions of this Court, the Government has directed the Page 41 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 insurance company to pay the amount to the private respondent herein. He has submitted that so far as private respondents are concerned, in their respect the advance subsidy is already paid and therefore insurance company ought to have paid the claim of the private respondents. He has submitted that the private petitioners are only interested for getting their claim. He has submitted that when their claim is genuine one, even in absence of subsidy from the Government, the petitioner be directed to pay the amount to the private respondents without waiting for any disbursement from the State Government to it. He has submitted that the private respondent is only interested to get their legitimate amount. He has prayed to pass appropriate order accordingly.
10. In rejoinder, learned senior counsel Mr.Mihir Joshi has submitted that the stand taken by the State Government is not in consonance with the insurance Act as well as various communications sent by the Page 42 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 Central Government to the State Government directing to make premium of subsidy and also clarifying that the payment of subsidy as a premium and the imposition of penalty are two different things. He has also submitted that in the present case, there is no disputed question of law. According to him, the question involved is legal one as to whether without making any premium the State Government insist upon the petitioner insurance company to make payment to the farmers. He has submitted that the payment of premium even in the nature of subsidy is a prerequisite for starting of a terms of policy. According to him, therefore, if the prior premium even in the form of subsidy is not paid then the insurance company cannot be compelled to make payment as there would be no contract of insurance existing between the parties.
He has submitted that the submission of the State Government is like putting cart before the horse. He has submitted that even the State Government has Page 43 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 no power to withheld the premium. He has submitted that even in old guidelines, page no.129, 130, there was no any provisions regarding the penalty and admittedly, the present contract is governed under the old guidelines. He has also referred to the letters of the Government of India placed on record at page no.237 and 309 and has submitted that the direction of the Central Government is yet not followed by the State Government. He has stated that the approach of the State Government is not proper. He has also submitted that there is no alternative remedy available for the petitioner as main grievance is against the State Government. He has submitted that earlier the impugned order passed by this Court is the basis of the present petition and therefore it cannot be alleged that there is an alternative remedy available to the petitioner to agitate the same. He has prayed to allow the present petition. Learned senior counsel has relied upon the following Page 44 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 decisions:-
(i) In case of Surya Constructions Vs. State of Uttar Pradesh And Others reported in (2019) 16 SCC 794, the Apex Court in para 3 and 4 has held as under:-
"3. It is clear, therefore, from the aforesaid order dated 22.03.2014 that there is no dispute as to the amount that has to be paid to the appellant. Despite this, when the appellant knocked at the doors of the High Court in a writ petition being Writ Civil No. 25216/2014, the impugned judgment dated 02.05.2014 dismissed the writ petition stating that disputed questions of fact arise and that the amount due arises out of a contract. We are afraid the High Court was wholly incorrect inasmuch as there was no disputed question of fact. On the contrary, the amount payable to the appellant is wholly undisputed. Equally, it is well settled that where the State behaves arbitrarily, even in the realm of contract, the High Court could interfere under Article 226 of the Constitution of India ['ABL International Ltd.Page 45 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022
C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 and Another v. Export Credit Guarantee Corporation of India Ltd. and Others' (2004 (3) SCC 553)].
4. This being the case and the work having been completed long back in 2009, we direct the Uttar Pradesh Jal Nigam to make the necessary payment within a period of four weeks from today. Given the long period of delay, interest at the @ 6% p.a. may also be awarded."
(ii) In case of ABL INTERNATIONAL LTD. AND ANOTHER V/s EXPORT CREDIT GUARANTEE CORPN. OF INDIA LTD. AND OTHERS reported in 2004 (3) SCC 553, the Apex Court has held in para 27 and 53 as under:-
"27. From the above discussion of ours, following legal principles emerge as to the maintainability of a writ petition :-
(a) In an appropriate case, a writ petition as Page 46 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 against a State or an instrumentality of a State arising out of a contractual obligation is maintainable.
(b) Merely because some disputed questions of facts arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule.
(c) A writ petition involving a consequential relief of monetary claim is also maintainable.
53. From the above, it is clear that when an instrumentality of the State acts contrary to public good and public interest, unfairly, unjustly and unreasonably, in its contractual, constitutional or statutory obligations, it really acts contrary to the constitutional guarantee found in Article 14 of the Constitution. Thus if we apply the above principle of applicability of Article 14 to the facts of this case, then we notice that the first respondent being an instrumentality of State and a monopoly body had to be approached by the appellants by compulsion to cover its export risk. The policy of insurance covering the risk of the appellants was issued by the first respondent after seeking all required information and after Page 47 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 receiving huge sums of money as premium exceeding Rs.16 lacs. On facts we have found that the terms of the policy does not give room to any ambiguity as to the risk covered by the first respondent. We are also of the considered opinion that the liability of the first respondent under the policy arose when the default of the exporter occurred and thereafter when Kazakhstan Government failed to fulfil its guarantee. There is no allegation that the contracts in question were obtained either by fraud or by misrepresentation. In such factual situation, we are of the opinion, the facts of this case do not and should not inhibit the High Court or this Court from granting the relief sought for by the petitioner."
11. Having considered the submissions made on behalf of both the sides coupled with the material placed on record and the decisions cited at bar, it reveals that there is no dispute regarding the facts of implementation of the scheme in question by the Central Government. The scheme provides that the Page 48 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 said Central Government and the State Government shall give equal share of premium to the insurance company for the implementation of the scheme. The said premium is to be paid by way of subsidy. Thus, the nomenclature subsidy is nothing but a payment of premium. It is admitted facts that the present petitioner has been identified as an insurance company for the vicinity which includes Surendranagar, Amreli, Morbi etc. Various conditions relating to the scheme held for settlement of claims as reflected from the material placed on record, which includes the important conditions/ clauses applicable for coverage of risk needs to be reproduced here and which is at page no.90 which reads as under:-
"24.1. Insurance companies should have received the premium for coverage either from bank, channel partner, insurance intermediary or directly. In case of any loss Page 49 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 in transit due to negligence by these agencies or non remittance of premium by these agencies, the concerned bank/intermediaries shall be liable for payment of claims."
12. At this juncture, the provisions regarding the monitoring and review of the scheme is also to be referred to wherein in clause no.29.2.3, the provisions reads as under:-
"29.2.3. Insurance Companies shall calculate crop-wise, IU wise payable claims based on the actual yield data and threshold yield given at the time of tendering. Accordingly the payable claims subject to payment of full premium share by the Central and State Govt for the season shall be remitted by the Insurance Companies directly into benefitted farmer's accounts electronically, payment details for Page 50 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 which shall be updated on the National Crop Insurance Portal on daily basis."
13. At this juncture, it is pertinent to note that the stand taken by the respondent no.1 in its affidavit in reply is that the State Government has to pay premium subsidy for Kharif pak of 2019 is Rs.396.93 crores out of which it has only paid Rs.180 crores. Thus, it is an admission on the part of the State Government that the remaining amount of "premium subsidy"
is not paid. Of course, it is the stand of the Government that as there was some lacuna on the part of the petitioner in non-adherance to the terms and conditions of the work order dated 04.07.2019, it has imposed penalty upon the petitioner and the premium subsidy has been kept pending.
14. At this juncture, it is pertinent to note that admittedly, the scheme is implemented by the Central Government and therefore, the directions Page 51 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 issued by the Central Government is binding upon the State Government. In this respect, upon perusal of the material placed on record, it appears from the communication of the Central Government, which is at page no.237 and 309 of the petition memo, which are reproduced herein, reveals that the State Government has to act according to this communication.
A communication dated 7th January, 2021:-
"This is with reference to this Department's letter no. 11016/02/2020-Credit-II dated 2nd November 2020 regarding invoking penalty clause for delayed settlement of claims and Jetter no.11019/01/2015-Credit-ll dated 17th October 2019 regarding timely release of State share of premium subsidy and diversion of State share of subsidy to deduct against the special penalty provision etc., by Page 52 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 State Government under PMFBY/RWBCIS. A copy of aforesaid letters is attached for ready reference.
2. During weekly reviews with Insurance Companies (ICs), States and other Stakeholders, this Department has noticed that a significant amount of claims are still pending due to the claim of the State Govt and concerned Insurance companies regarding offsetting of premium subsidy against non-payment of penalty and non release of requisite State share of subsidy, respectively. The payment of claims to the farmers in such cases are delayed considerably which leads to dissatisfaction amongst eligible farmers and defeats the overall objectives of timely payment of claims to the farmers. States may recover the penalty imposed from Insurance Page 53 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 Companies as per applicable laws and/or any other established mechanisms for recovery of penalty except offsetting the penalty with premium subsidy.
3. It is further clarified that payment of premium subsidy and settlement of claims by Insurance Companies is monitored individually by this Department for each State, Season, Scheme (PMFBYor RWBCIS) and Insurance Company. State Governments are advised to ensure payment of entire subsidy in respect of each Season, Scheme to individual concerned Insurance Company separately as the accounts/business statistics are maintained accordingly........ A communication dated 02nd May, 2022 reads thus:-
This is to draw your attention Page 54 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 towards long pending State share of
premium subsidy in the State of Gujarat under Pradhan Mantri Fasal Bima Yojana (PMFBY) and Restructured Weather Based Crop Insurance Scheme (RWBCIS). The State of Gujarat has implemented PMFBY from Kharif 2016 to Rabi 2019-20. Timely release of State subsidy is of essence and any delay in the same may result in significant delay in claim settlement to affected farmers of your State. As the scheme provides risk coverage for crop loss to farmers, payments of claims to them must be done within the prescribed timeline.
2. Government of India through its earlier communications with State Government on 24/04/2020, 13/09/2020, 15/04/2021 and 08/06/2021 had been requesting for expediting the same. The aforesaid matter Page 55 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 has been reviewed and examined and has been observed that i considerable claim amount of 258.87 Crore is pending for payment to the eligible farmers of your State due to non-release committed State share of premium subsidy of ₹ 859.39 Crore to concerned Insurance Companies (details in annexure). There is an urgent need to clear all outstanding premium subsidy payments so that claims to the farmers can be paid without any further delay. On this account, we are receiving large number of grievances from farmers relating to their claim settlements and other issues.
3. This pendency of subsidy has been adversely impacting the overall implementation of the scheme. Due to inordinate delay in the release of subsidy, this Department is not able to close the Page 56 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 seasons and the concerned Insurance Companies are facing solvency issues us mandated by IRDAI and the companies are also not able to bid further in other States due to their choked capacities.
4. You are requested to kindly review this matter personally and issue necessary directions for immediate release of pending State Share of Premium Subsidy so the claims can be released to the affected farmers at the earliest and the objectives of the Scheme are achieved."
15. Now, it is a matter of common sense and knowledge that the payment of prior premium is a Sine qua non of coming into force of any contract of insurance between the insured and insurer. The contract of insurance would be effective only on making payment of the premium. Without prior payment of Page 57 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 the premium, if, somebody wants or desires that first of all contract should be deemed to be come into existence, such persons may be either have no common sense or either he is living in any other world. Who is insisting for first settlement of claim without making any prior premium to the insurance company is nothing but insisting to see that the cart is put before the horse. In the present case, as revealed from the communications of the Central Government to the State Government and the material placed on record, it clearly appears that the State Government is insisting for making payment to the concerned farmers on the basis of scheme of insurance without payment of any prior premium. Such instance of the State Government is nothing but an exercise to put a cart before the horse. When the Central Government has consistently directed the State Government to release the "premium subsidy", the State Government ought to have followed such directions. The entire stand taken by Page 58 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 the State Government in not releasing the "premium subsidy" and at the same time, insisting the petitioner company to make payment to the farmers is not sustainable in the eyes of law. At the same time, it is the bounden duty of the petitioner to see to it that on receipt of the premium subsidy, it shall immediately make payment to the eligible farmers in respect of damages caused to them. At the same time, the question regarding making payment for any other purpose like non availability of facilities of laying claim or non availability of staff etc. can be considered by the competent authority for initiating any penal action against the insurance company. But only with a view to initiate such penal action and to impose penalty, the State Government is not entitled to stop the making of premium subsidy which is sine qua non for the contract of the insurance itself. Considering the facts and circumstances of the present case, it clearly transpires that the action and the stand taken by the Page 59 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 respondent no.1- State Government is not sustainable in the eyes of law.
16. In view of the above, the present petition deserves to be allowed. Accordingly, it is allowed. The order Annexure "B" of the State Government dated 12.5.2021, is hereby quashed and set aside with the observations that as and when the petitioner receives the premium subsidy from the State Government, it shall immediately pay the outstanding claim of the eligible farmers without any fail, within a period of one week thereof.
17. The respondent no.1 is hereby directed to release the remaining requisite amount pending State share of the subsidy for Kharif season 2019 to the petitioner within the period of four weeks from today. On such receipt of the premium subsidy for the said Kharif season, the petitioner shall, within one week thereof, shall disburse the amount to the Page 60 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022 C/SCA/10523/2021 JUDGMENT DATED: 30/09/2022 eligible farmers, who have suffered the damages caused and are covered under the scheme. It is clarified that the rights of the respondent - State to take out necessary proceedings for penal action, if any, is kept open. No order as to costs. Direct service is permitted.
(DR. A. P. THAKER, J) URIL RANA Page 61 of 61 Downloaded on : Fri Sep 30 20:48:27 IST 2022