Gujarat High Court
Vvf vs Union on 10 March, 2010
Author: Jayant Patel
Bench: Jayant Patel
Gujarat High Court Case Information System
Print
SCA/5909/2008 10/ 26 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5909 of 2008
With
SPECIAL
CIVIL APPLICATION No. 6300 of 2008
With
SPECIAL
CIVIL APPLICATION No. 6298 of 2008
With
SPECIAL
CIVIL APPLICATION No. 6299 of 2008
With
SPECIAL
CIVIL APPLICATION No. 5907 of 2008
With
SPECIAL
CIVIL APPLICATION No. 8468 of 2008
With
SPECIAL
CIVIL APPLICATION No. 6334 of 2008
With
SPECIAL
CIVIL APPLICATION No. 6562 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
VVF
LTD. & 1 - Petitioner(s)
Versus
UNION
OF INDIA & 1 - Respondent(s)
=========================================================
Appearance :
MR
HARDIK P MODH for
Petitioner(s) : 1 - 2.
MR.HARIN
RAVAL, ADDITIONAL SOLICITOR GENERAL WITH MR RM CHHAYA for
Respondent(s) : 1,
NOTICE
SERVED BY DS for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 10/03/2010
ORAL
JUDGMENT
I have heard Mr. Mihir Joshi, learned Senior Advocate with Mr.Mathur, Mr. Paresh Dave, Mr.Modh, Mr. B.Y. Mankad and Mr.H.D. Dave for the concerned petitioners, and Mr.Harin Raval, Additional Solicitor General with Mr. Chayya, learned Standing Counsel to the Central Government.
I had the benefit of going through the reasons and conclusions recorded by brother D.A. Mehta, J. as well as by brother S.R. Brahmbhatt, J.
On the factual aspects, both my brother Judges have elaborately dealt with. However, I find that the factual aspects may be required to be recorded, in order to consider the controversy and the issues arise for consideration, therefore, to that extent, the same shall be narrated at appropriate places.
Following aspects arise for considering the controversy in the present group of petitions.
Whether any declaration was made by the Central Government in formulating fiscal policy and if yes, whether the same was by way of exemption simplicitor or by way of an incentive offered for establishment of the industry in a particular area or a specific region, to new entrepreneur.
Whether the petitioner could be said to have altered the position based on the aforesaid declaration of fiscal policy brought into force.
Whether bar of promissory estoppel would apply and if yes, to what extent in fiscal matters.
Whether the impugned policy could be said to be for withdrawal of the benefit/incentive retrospectively, assured to the petitioners or can be said as rationalising the benefit by making it retroactive.
Whether the bar of promissory estoppel would operate to the respondent Central Government, if yes, to what extent.
Whether the impugned change in fiscal policy could be said as acting in contravention to the bar of promissory estoppel, if yes to what extent.
Following facts deserve to be recorded.
On 31.07.2001, vide notification No.39/2001-CE, the Central Government in exercise of powers under Section 5A(1) of the Central Excise Act, 1944 (hereinafter referred to as 'the Act') read with the other Act providing for the additional duties, for the units located in Kutch District of Gujarat exempted so much of the duty of excise or additional duty of excise, as the case may be, leviable thereon under the relevant Act as equivalent to the amount of duty paid by the manufacturer of goods other than the grant of duty paid by utilisation of CENVAT credit under the CENVAT Credit Rules, 2001. Clause 3 of the said notification provided that the exemption contained in the notification shall be subject to the condition that it will apply to only new industrial units, i.e., the units which are set up on or after the date of publication of this notification in the official gazette, but is not later than 31.07.2003. It also provided that the exemption shall apply for a period not exceeding 5 years from the date of commencement of the commercial production by the unit. The notification also provided that the expression set up on or after the date of publication of this notification in the official gazette shall mean that any civil construction work on its factory premises and any installation of the plant and machinery therein commences only on or after the date of publication of this notification in the official gazette.
Notification No. 42/2001 dated 21.09.2001, provided for the original value of investment in plant and machinery, which has no relevance to the controversy to be considered in the present petitions. Thereafter on 02.09.2002, the aforesaid period of 31.07.2003 was substituted by 31.07.2004. On 13.02.2003, the amendment was made in the notification by adding the proviso that such refund would not exceed the amount of duty paid less the amount of CENVAT credit availed of in respect of the duty paid on inputs used or in relation to the manufacture of goods cleared under this notification. Thereafter, there were changes in the modalities, but until the impugned notification dated 27.03.2008, it is undisputed position that the policy was continued for granting exemption to the duty paid less the CENVAT credit availed of. To say in other words, the duty was to be refunded, if paid in actual, either in cash or in personal ledger account of the unit concerned.
On 27.03.2008, vide notification No.16/2008, the words and the figure to the amount of duty paid by the manufacturer of the goods other than the amount of duty paid by utilisation of the CENVAT credit under CENVAT Credit Rules was substituted by the words to the duty payable on value addition undertaken in the manufacture of the said goods by the said unit . In the said notification, the duty payable on the value addition was made as equivalent to the amount calculated as a percentage of total duty payable on the said excisable goods as per the table contained in the said notification. The said table provided for various rates in different chapters of the First Schedule for different categories. In the said notification, it did provide for an option available to a particular manufacturer to move for modification of the rates prescribed in the table and the enabling powers were given to the Commissioner of Customs or Central Excise to alter the rates. It is under these circumstances, all the petitioners have approached to this Court by the present petitions.
It may be recorded that pursuant to the interim order passed in the present petitions, the representation was made by the petitioners to the Central Government for reconsideration of the policy and thereafter, vide notification dated 10.06.2008, it is the case of the Central Government that based on the material supplied, the rates are altered as stated in the table. In the very notification, vide para 2.2, it was inserted that the refund shall be available only on the condition that the total refund made to the unit during the year including the differential amount does not exceed total duty payable on the value addition whether at the rates specified in the table or at the special rates fixed in paragraph 2.1. To say in other words, the embargo was put on the quantum of refund not exceeding the table or not exceeding the rate fixed by para 2.1 of the earlier notification dated 27.03.2008. The petitioners by the amendment has also challenged the said notification dated 10.06.2008.
If the aforesaid factual position is examined in light of the above referred aspects to be considered, it is apparent that the declaration was made by the Central Government while formulating fiscal policy as to a specific fiscal policy for the refund of the excise duty paid less the CENVAT credit for the area of Kutch District in Gujarat State to the new industrial units, which are set up on or after the date of publication of the notification in the official gazette, but not later than 31.07.2003 which was subsequent to 31.07.2004. It was not by way of an exemption to be made available productwise for the whole or part of the country, but was an exemption making the full refund made available to the actual duty paid to the new industry to be established in the Kutch District. The whole tenor of the notification if considered as it is with the language used in the notification, is for the incentive to be given for establishment of the industrial unit in Kutch district of Gujarat for a period of 5 years from the date of the commencement of the commercial production of the unit. Therefore, it was a specific incentive given to only new industrial units to be established in the Kutch district. Hence, the first aspect remains answered accordingly.
On the second aspect for establishment of the new units by the petitioners in Kutch District, it appears that there is no change nor withdrawal or the alteration in the policy on account of non-compliance of conditions for establishment of new industrial units. If based on the aforesaid fiscal policy of the Central Government by way of incentive for establishment of new industrial unit in Kutch District, the petitioners have established their industrial unit in Kutch District, it could hardly be said that the petitioners have not altered their position. Even otherwise also, if the condition of notification of new industrial units is not fulfilled. Even otherwise also, none of petitioners would be entitled to the benefit of the policy of refund of the actual duty paid, but since such is neither pleaded nor comes up for consideration, the same is not required to be examined further. However, if the petitioners have established new industrial units in Kutch district based on the aforesaid policy of the Central Government by way of a special incentive of refund of actual duty paid, it can be said that the petitioners have altered their position and such alteration of the position would be the making of requisite investment for establishment of the new industrial unit in Kutch District within the specific time period. The second aspect shall remain answered accordingly.
In order to examine the aspect of bar of promissory estoppel and the limits operating therein, reference to the case laws on the subject may be relevant. The Apex Court in the case of Southern Petrochemical Industries Co. Ltd. Vs. Electricity Inspector & ETIO reported at 2007(5) SCC 477, after considering its earlier decisions, at para 130, has made the following observations :
We therefore, are of the opinion that doctrine of promissory estoppel also preserves a right. A right would be preserved when it is not expressly taken away but in fact has expressly been preserved.
The Apex Court in the case of UP Power Corporation Ltd. & Anr. Vs. Sant Steels & Alloys (P) Ltd. & Ors. Reported at 2008(2) SCC 777, after considering the earlier decisions, observed at para 27 as under:
27.In this background, in view of various decisions noticed above, it will appear that the Court's approach in the matter of invoking the principle of promissory estoppel depends on the facts of each case.
But the general principle that emerges is that once a representation has been made by one party and the other party acts on that representation and makes investment and thereafter the other party resiles, such act cannot stated to be fair and reasonable. When the State Government makes a representation and invites the entrepreneurs by showing various benefits for encouraging to make investment by way of industrial development of the backward areas or the hill areas, and thereafter the entrepreneurs on the representations so made bona fidely make investment and thereafter if the State Government resile from such benefits, then it certainly is an act of unfairness and arbitrariness. Consideration of public interest and the fact that there cannot any estoppel against a Statute are exceptions.
28.Learned senior counsel for the appellant has cited nine instances which can be loosely categorised into two i.e. (i) that there cannot be any estoppel against the statute and (ii) overriding public interest. So far as the first part is concerned i.e. the revocation has the statute flavour i.e. the benefit which was extended under Section 49 of the Act of 1948 and the notification had been issued revoking the same benefit under Section 49 of the Act of 1948 by invoking the provisions of the General Clauses Act that an authority granting exemption has a right to revoke the same also. It is true that it has a right to revoke the same but if the other party has suffered on that account then such representation will be against the public policy and the morality. Notification issued under Section 49 of the Act of 1948 for giving the benefit of exemption for the hill areas was in the nature of delegated legislation and not an Act framed by the State Legislature. Therefore, a distinction has to be made between the delegated legislation and the primary legislation framed by the legislature.
The pertinent aspect is that in the very decision, the Apex Court while exercising the question as to whether the State could withdraw the exemption on the alleged ground of misuse of the policy by certain entrepreneurs, observed at para 30, 31, 32 and 33 as under:
30.
......... Therefore, if such benefit has not been extended then a different stand will follow but so far as the delegated legislation is concerned, this kind of revocation cannot be sustained. It is highly against the public morality that the incumbent who have felt persuaded on account of the representation made by the State Government that they will be given certain benefits and they acted on that representation, it does not behove on the part of the appellant- Corporation to withdraw the said benefit before expiry of the stipulated period by issuing the notification revoking the same which the respondents were legitimately entitled to avail.
We fail to understand why the appellant- Corporation which made a representation and allowed the other party to act upon such representation could resile and leave the citizens in a lurch. In such a situation the principle of promissory estoppel which has been evolved by the Courts which is based on public morality cannot permit the State to act in such an arbitrary fashion.
31. Other grounds for the purpose of public interest which have been pleaded; namely that there are two methods of tariff provided by the amendment and the actual consumption has been reduced based on the calculation of energy charges per KV from 308 paise to 100 paise and there was large scale theft or that units were closing down and there was no mala fide intention in the matter of revocation of the notification and the cost of production of power has gone up to Rs.2.50 per unit, are considerations which hardly involve any public interest. They were more of a nature of losses which has been suffered by the Corporation and in order to make these losses, these methods were evolved to reduce and to make good of the losses. Restructuring benefit to 17% of the Tariff 4(A) (demand charges)are the factors which are aimed at to make the losses good for the Corporation. This is not case in which serious public repercussion was involved. These are not the factors which put together can constitute a public interest.
Theft of the energy if it was proved by cogent datas that as a result of giving this benefit to the entrepreneurs in the hill areas, they were misusing it or there was theft of the energy at a large scale by these persons to whom the concession had been given then of course such factors, if all the datas were brought on record of course could have persuaded the Court to take a different view of the matter. But simply because there was theft of energy allow the State cannot persuade us to hold that the revocation of such concession can be said to be in public interest. Since the benefit was given to these units in the hill areas, there should have been overwhelming evidence to show some mala fide on the part of these consumers which have persuaded the Corporation to revoke it. If there was no misuse of the energy by these units in the hill areas to whom the concession had been granted then in that case it cannot be taken that there was really public interest involved which persuaded the Corporation to revoke the same.
32.No person can be permitted to misuse the concession or benefit and invoke promissory estoppel. Promissory estoppel is not one sided affair, it is rather two sided affair. If one party abuses the concession then it is always open to the other party to revoke such concession but if one party avails the benefit and is acting on the same representation made by the other party then the other party who has granted the said benefit cannot revoke the same under the garb of public interest.
Therefore the grounds that the revocation notification was issued in public interest and that same has the flavour of the statute, cannot persuade us to uphold it sustained.
33....There is no gain saying that the public interest is paramount and the private interest has to be sacrificed for the larger interest. But, after survey of all these cases on the subject, the judicial consensus that emerges is that whenever the State has made a representation to the public and the public has acted on that representation and suffered economically or otherwise, then in that case the State should be estopped from withdrawing such benefit to the detriment of the such people except in public interest or against the Statute.
So far as the public interest as involved in the present case is concerned, we have found that there was no overwhelming evidence to revoke the benefit granted to the industrial units in the hill areas.
So far as the Statute is concerned, the notification was issued under Section 49 of the Act of 1948 and the same was revoked under Section 49 of the Act of 1948 though there was no such provision contained in Section 49 that it will be open to the Corporation to revoke the same but could be possible by invoking the principle of General Clauses Act. But in such delegated legislation such withdrawal could only be permitted if larger public interest is involved or if the Act is passed by legislature.
(Emphasis supplied) The contention of the learned Additional Solicitor General Mr.Raval is that such right of promissory estoppel is a defeasible right and not indefeasible. He further contended that when any entrepreneur acts based on the exemption policy of the Government, he is well aware that such policy are coupled with the power of the Government to withdraw the same, therefore, if withdrawn, no valid grievance can be raised since such withdrawal is permissible in public interest. He also contended that there are limitations while invoking the doctrine of promissory estoppel. One is that such cannot be operated against the statute and if the statute has permitted the power on withdrawal to the same authority, it may result into allowing the doctrine to operate in contravention to the statute. He also contended that even if it is read that such power is to be exercised in public interest, then also, in the affidavit in reply, there is enough material shown with the facts and figures that the duty paid in such exempted area is much more in comparison to other area where exemption is not granted on the same product. Such prima facie shows that since the refund is made available by way of exemption, such policy is misused by the industrial units. He submitted that if it came on record before the Government that the policy is being misused, it has tried to rationalise the same by fixing a particular rate prescribed for the duty and the refund as per the impugned notification. In the submission of the learned Additional Solicitor General, such rationalisation is not having retrospective character, but is having retroactive character. He further submitted that the powers for fixation of rates are expressly provided to enable the concerned authority to alter the same if sufficient material is produced, therefore, he submitted that such could be said to be made permissible in fiscal policy to the Government in exercise of the power under Section 5A of the Act. He therefore contended that in the facts of the present case, the bar of promissory estoppel would not operate and the change in policy deserves to be maintained. He also contended that the approach of the Court would be with the presumption of validity of such policy since whether there is public interest or not is to be left to the Government on the basis of the material available before it and the Court would not undertake judicial scrutiny in a microscopic manner by weighing the sufficiency of the material. He contended that the doctrine of promissory estoppel cannot be permitted to be invoked in the facts of the present case nor such doctrine of promissory estoppel would operate as bar in the impugned notification.
Whereas, learned counsel for the petitioners maintained that the action on the part of the Government by impugned notification is against the doctrine of promissory estoppel and it was submitted that so far as Kutch District is concerned, there is no substantial change in the actual duty paid in comparison to its past record and even if it is, such cannot be termed as a valid basis for withdrawal of the exemption policy. It was also contended that by the impugned notification, the full refund of actual duty paid is altered by the specified rates and even it it is considered as with the inbuilt power for alteration for rates, then also, such would curtail the benefit of duty of 100% refund as was assured in the notification of 2001 on the basis of which, the petitioners have set up the new industries. It was submitted that there is no sufficient material produced on record to show that there was any overwhelming public interest nor by delegated legislation, the State could withdraw the exemption benefit with retrospective effect. It was submitted that the contention of rationalisation of the refund is an eyewash and such cannot be termed as having a retroactive character, but is in effect retrospective which is only permissible by the Act of Parliament and not by way of a delegated legislation. It was submitted that even if it is considered that there was any misuse by some other industries, the same would not be sufficient ground for retrospectively changing the policy to the industries which are already established and therefore, the impugned notification cannot be sustained.
It appears that the doctrine of promissory estoppel and its scope and ambit is by now well settled and the same can be summarised as under:
The doctrine of promissory estoppel is to be treated as a preserved right, but such right is subject to the limitation that -
Such promise or the representation made must be given under the authority of law and in consonance with the statute and not unauthorisedly or in contravention to any statutory provision on the principle that there cannot be any estoppel against the statute.
Such cannot be permitted to be invoked against the overwhelming public interest.
The legislature or the parliament has power for diluting its effect retrospectively by enacting any law.
If the facts of the present case are examined in light of the aforesaid, it is apparent that by the notification dated 31.07.2001 and others, special incentive was given to the entrepreneur for establishment of new industrial units in Kutch district granting full refund of the actual duty paid as observed in the earlier paragraph and further, as observed earlier, for establishment of new industrial undertaking, the petitioners have altered their position and right has accrued based on the doctrine of promissory estoppel. It does appear that it is not the case of the respondent Central Government that such representation or the promise given for granting exemption was unauthorisedly given or was given in contravention to any statutory provision. The contention that the power to grant exemption would include power to withdraw the exemption as per the General Clause Act, even if accepted, the same has to be in public interest. Such public interest for withdrawal of the exemption if considered for prejudicing the rights of the party who has altered its position, must be having direct nexus to the object as was to be achieved by formulation of the policy or in alternative, it should be overwhelming public interest. The intention for grant of exemption to new industries in Kutch District of Gujarat State was that the new industries in Kutch District may be established which may generate opportunities for employment, etc. in the area, may be on account of underdevelopment or on account of the earthquake. Had it been the case of the respondent Central Government that sufficient material came on record before the Central Government that more than expected industries are already established and the object has been achieved or in alternative, there was material before the Central Government that inspite of the policy, no new industries are established or has not achieved its object, they might stand on different footing and different consideration. Such may be contended as valid ground for enabling the Government to exercise the power for withdrawal of the incentive. There could also be other overwhelming public interest, for e.g., new industries have created health hazard to the residents of the area or that there is huge fiscal deficit created, which has resulted financial crunch to the Central Government to fulfill its obligation to the going project of larger public interest etc., or like such overwhelming public interest. When the ground sought to be canvassed of the public interest having direct nexus to the object as was to be achieved and is not achieved or an overwhelming public interest, the burden would heavily lie upon the Government to establish by authenticated reliable material in the event such an action is made subject to the judicial scrutiny. Sufficiency of the material or whether such material has been rightly relied upon while withdrawing the benefit or not may vary from facts to facts. But it will be for the State to satisfactorily demonstrate before the Court of such direct public interest to the object was to be achieved and is not achieved or the overwhelming public interest attracting the power of withdrawal. Unless such exceptions are satisfactorily demonstrated before the Court, it is not possible to hold that merely because there is power to withdraw the exemption granted by way of a special incentive can be permitted to be withdrawn with retrospective effect.
If the record produced on behalf of the Central Government is considered, it appears that none is concerning to the object which was at the time of formulation of the policy or achievement of the said object. On the aspects of public interest, the ground as sought to be canvassed is that the duty paid in such area where incentive provided was higher in comparison to the other places and it was orally contended by the learned Additional Solicitor General that such would show that the exemption policy was being misused or there were manipulations for getting the refund. The contention considered in either way may at the most attract for initiation of the action in accordance with law against the industry concerned, if there is manipulation or abuse of the policy. Even if it is considered that some units had misused or had abused the policy, the same can hardly be said to be a valid ground for withdrawing the benefit conferred upon the bonafide industrial units. Further, there is no satisfactory material demonstrated for such purpose. Even if such contention is considered for the sake of examination, it can hardly be termed as overwhelming public interest on the part of the Central Government to prejudice the rights of the new enterpreneurs who have altered their position by establishing industries based on such incentive. Further, as observed by the Apex Court in the above referred judgement in the case of Power Corporation Ltd. & Anr. (supra), such ground cannot be uphold as sustained.
The contention that by the impugned notification there is rationalisation of the refund procedure or is retroactive and not retrospective, of the Central Government, if examined, it appears that as per the earlier notification of 2001, whereby the policy was floated, full refund to the actual duty paid is made permissible. By the impugned notification a specified rate to the actual duty is provided with the limitation that it shall not exceed the prescribed rate, which on the face of it, would curtail the entitlement of the refund to the fullest extent, i.e. 100% of the actual duty paid. Merely because there are enabling power for alteration of the rates specified in the impugned notification cannot be termed as rationalisation of the method of refund, but would create an additional obligation upon the new industrial unit which was not conceived nor was so provided at the time when the policy was formulated. If there is curtailment of the existing benefits of exemption policy to the new industrial undertaking in Kutch district, it cannot be termed as retroactive, but has to be termed as retrospective because those persons who have already altered their position by establishing new industries in Kutch District would not be eligible for the benefit of full refund of the actual duty paid as was declared by the Central Government vide notification dated 31.07.2001.
If the impugned notification is treated as that of having retrospective to the new industrial undertaking already established, it can be said that by the impugned notification which is a delegated legislation, the retrospective effect is given. It is by now well settled that the subordinate legislation or a delegated legislation can be made with prospective effect and cannot be made with retrospective effect. The reason being that once a retrospective effect is given, the accrued right of a person is altered or may be prejudiced, which can only be taken away by any express provision of the statute and not by way of any delegated or subordinate legislation. Under these circumstances, even if it is considered that in fiscal matter, the Government has power to alter or withdraw the exemption benefit, such cannot be permitted to be exercised with the retrospective effect dehors the doctrine of promissory estoppel, if it is established that a specific representation by way of a special incentive was made to attract new entrepreneur have established the industry in a particular area or region.
It is not the case of the respondent Central Government that the parliament has passed any Act to alter the rights accrued with retrospective effect. Therefore, the question as to whether such Act of Parliament or the legislature would meet with the test of Article 14 of the Constitution being reasonable or not is not required to be examined in the present petitions.
If the observations made hereinabove are taken into consideration, it can be said that the impugned policy of withdrawal of the benefit/incentive to the petitioners is retrospective and not retroactive. Consequently, the bar of promissory estoppel would operate against the respondent Central Government in withdrawal of the exemption benefit by way of full refund of actual duty paid to the new industrial undertaking as per the conditions specified in the notification dated 31.07.2001. As a result thereof, the impugned notification could be termed as in contravention to the doctrine of promissory estoppel and hence, cannot be sustained. All the remaining aspect shall stand answered accordingly.
Before concluding, it would be worthwhile to extract the observations of the Apex Court in the case of UP Power Corporation Ltd. & Anr. (supra) while reading the public morality into the action of the State at para 35 as under:
In this 21st century, when there is global economy, the question of faith is very important. Government offers certain benefits to attract the entrepreneurs and the entrepreneurs act on those beneficial offers. Thereafter, the Government withdraws those benefits. This will seriously affect the credibility of the Government and would show the shortsightedness of the governance. Therefore, in order to keep the faith of the people, the Government or its instrumentality should abide by their commitments. In this context, the action taken by the appellant-Corporation in revoking the benefits given to the entrepreneurs in the hill areas will sadly reflect their credibility and people will not take the word of the Government. That will shake the faith of the people in the governance. Therefore, in order to keep the faith and maintain good governance it is necessary that whatever representation is made by the Government or its instrumentality which induces the other party to act, the Government should not be permitted to withdraw from that. This is a matter of faith.
In view of the aforesaid reasons recorded, I agree with the final conclusion recorded by brother D.A.Mehta, J, for allowing the petitions to the extent as stated therein. Consequently, the petitions shall stand allowed accordingly with no order as to costs.
(Jayant Patel, J.) *bjoy After the pronouncement of the order, Mr. Chhaya, learned Standing Counsel prays that the Union of India is desirous to carry the matter before the higher forum, therefore, this Court may suspend the operation of the order for some time so as to enable the respondent Union of India to approach before the Apex Court.
As such, in view of two different views expressed by two Hon'ble Judges, the matter was referred to me. The view is expressed and the reference would stand disposed of. However, if the final effect is to be stayed, the matter may be required to be placed before the appropriate Bench.
It will be for the office to place the matter before the appropriate Bench after obtaining suitable orders of Hon'ble the Chief Justice on administrative side. Hence, at the request of Mr. Chhaya, learned Standing Counsel, matter be now placed before the appropriate Bench, preferably on 12th March, 2010.
[JAYANT PATEL, J.] jani Top