Uttarakhand High Court
Sant Steels And Alloys Pvt. Ltd vs Government Of India And Others on 16 September, 2019
Author: Alok Kumar Verma
Bench: Ramesh Ranganathan, Alok Kumar Verma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 820 of 2019
Sant Steels and Alloys Pvt. Ltd. ..........Appellant
Vs.
Government of India and others ...........Respondents
Presents:-
Mr. Puluk Raj Mullick, learned Advocate for the appellant.
Mr. Hari Mohan Bhatia, learned Advocate for respondent Nos. 2 and 5.
Mr. B.S. Parihar, learned Standing Counsel for the State of Uttarakhand/
respondent No.3.
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble Alok Kumar Verma, J.
Ramesh Ranganathan, C.J. (Oral) The delay in preferring the appeal is not opposed by Mr. Hari Mohan Bhatia, learned Counsel for the respondent Nos.2 and 5, and the delay is, therefore, condoned.
2. This appeal is preferred against the order passed by the learned Single Judge in WPMS No.2123 of 2011 dated 30.05.2019. The appellant-writ petitioner filed WPMS No.2123 of 2011 seeking a writ of certiorari to quash the proceeding of the Joint Secretary, Ministry of Finance, Government of India dated 05.07.2011; a writ of mandamus commanding the respondents to include Khasra No.60-Ka & 61 of Village Jashodharpur in Annexure II in the list of existing industrial estates to the Notification No.50 dated 10.06.2003 after taking it out from Annexure III to the amended Notification No.27 dated 19.05.2005; and a writ of mandamus commanding the respondents to allow fiscal incentives to the unit of the petitioner situated at Jashodharpur village in District Pauri Garhwal, to include Khasra No.60-Ka & 61 as an existing industrial unit in an industrial area under the Notification 2 No.1(10)/2001-NER dated 07.01.2003 and the Notification No.50/2003 dated 10.06.2003.
3. The proceedings of the sixth respondent dated 05.07.2011, which is impugned in the writ petition, is an order passed in compliance with the order of this Court in WPMS No.628 of 2005, and the request of the appellant-writ petitioner for inclusion of Khasra No.60-Ka and 61 of village Jashodharpur, Tehsil Kotdwar, District Pauri Garhwal in Annexure II of Notification No.50 dated 10.06.2003. In its proceedings dated 05.07.2011, the sixth respondent stated that the Notification No.50/2003 dated 10.06.2003 was issued on the information provided by the DIPP; subsequently the matter was examined again, and amendments to all the notifications were effected by Notification 27/2005-CE dated 19.05.2005, based on the list submitted by the Government of Uttarakhand; it was decided that, in respect of areas mentioned in list I, the benefit of excise duty exemption under the notification was available only to new units, and not to existing units/undertaking/substantial expansion in the light of the guidelines; while forwarding the list, prior to issue of notifications No.27/2005, it was informed to the State Government that the change in respect of these establishments were in fact final, and no recommendation, for any further changes, be made; Khasra No.60-Ka and 61 were included in list I of the letter of the Government of Uttaranchal, and was notified in Annexure-III of Notification No.50/2003-CE with the express condition that, in the case of the Khasras numbers included in Annexure III, the benefit of excise duty exemption of the notification was available to the new units only, and not to existing units/ undertaking/ substantial expansion of undertakings in the light of the guideline.
34. The order of the Division Bench in WPMS No.628 of 2005 dated 21.12.2010, in terms of which the sixth respondent passed the order dated 05.07.2011, was filed by the appellant-writ petitioner- an industrial unit manufacturing iron ingots. On 07.01.2003, the Central Government had announced a policy whereby it was proposed, among others, to grant 100% outright excise duty exemption for a period of 10 years to industrial units mentioned in the said policy from the date of commencement of commercial production. The industrial units, which were entitled to the benefit of the said policy, were new industrial units and existing industrial units on their substantial expansion set up in, amongst others, industrial estates, as stated in Annexure I to the said policy. Annexure I of the said policy identified Kotdwar Tehsil, in Pauri Garhwal District as one of the places where a new industrial unit, or an existing industrial unit, has been set up in an industrial estate. The policy directed, among others, the Revenue Department to amend the Acts/Rules/Notification, etc and to issue necessary instructions for giving effect to the decision contained in the policy.
5. In terms of Annexure I of the policy, existing industrial units, situated in industrial estates located in Annexure-I to the policy, could seek the benefit of the policy on their showing that they had made substantial expansion. This policy was given effect to, and was made conclusive on 10.06.2003 when an exemption notification was made and published. The said notification stipulated that an existing industrial unit must expand to not less than 25% of its existing installed capacity, after 07.01.2003, in order to take advantage of the policy. This notification dated 10.06.2003 provided that the existing industrial units, on expansion of its installed capacity by not less than 25% after 07.01.2003, became entitled to the benefits of the said policy. The 4 notification dated 10.06.2003, apart from mentioning the location of the industrial estates at Tehsil Kotdwar, District Pauri Garhwal, furnished two additional particulars, namely, the industrial estate at Jashodharpur and Khasra numbers of the said industrial estate. While the appellant-writ petitioner's unit was, no doubt, located in the industrial estate at Jashodharpur, it was not situated in the Khasra number mentioned in the notification dated 10.06.2003. It is in such circumstances that the appellant-writ petitioner had contended before this Court that omission of Khasra Nos.60- Ka and 61 were inadvertent; the District Industrial Centre was also of the same view; a request was made to the Industries Department of the State on 21.07.2003 to incorporate the said Khasra numbers in the said notification dated 10.06.2003; and, since this was not done, the petitioner had approached this Court by filing the writ petition.
6. The appellant-writ petitioner filed WPMB No.181 of 2005 which, along with a batch of the writ petitions, were disposed of on 03.03.2005, permitting the petitioner to make a fresh representation with a fresh recommendation of the State Government or SIDCUL; and directing the Central Government to decide upon the said representation. On the appellant-writ petitioner submitting their representation, they were informed by the State Government that their grievances had been redressed by the notification dated 19.05.2005.
7. According to the petitioner, while the notification dated 10.06.2003 was no doubt amended by the notification dated 19.05.2005, Annexure II of the notification dated 10.06.2003, which related to industries in existence which were entitled to the benefit of exemption of substantial expansion or a new industry, was retained; Annexure III was added to the notification dated 10.06.2003 giving similar 5 benefits to new industrial units set up in industrial estates. The appellant-writ petitioner's grievance was that, while Khasra No.60-Ka and 61 were included in Annexure III of the notification dated 10.06.2003, by the notification dated 19.05.2005, they had failed to include these khasra numbers in Annexure II of the notification dated 10.06.2003. Consequently, since the benefit of Annexure III was available only to new industrial units, the appellant-writ petitioner's unit, though located in Khasra No.60-Ka and 61 of Jashodharpur industrial estate, was not extended the benefit of exemption, since it was an existing industrial unit falling under Annexure II, and not under Annexure III of the notification. Aggrieved thereby the appellant-writ petitioner invoked the jurisdiction of this Court filing WPMB No. 628 of 2005 and a Division Bench of this Court, in its order dated 21.12.2010, observed:-
"......4. Assuming, as has been canvassed before us, that the State of Uttarakhand at the time of furnishing particulars to denote the subject industrial estates, by mistake omitted to include Khasra Nos. 60 (d) and 61 and later on realizing the said mistake, wanted to incorporate the same in the notification dated 10th June 2003, but the fact remains that the request of the State Government has not been acceded to by the Central Government and, accordingly, the same has not been incorporated in Annexure - II to the notification dated 10th June 2003. It is not the contention of the Central Government that it made a mistake. As would be evident from the judgment of this Court dated 3rd March 2005, the Central Government, though may have had conceded that there had been mistake on the part of the State Government, but, nevertheless, it never contended that there was any mistake on its part in the matter of making the notification dated 10th June 2003. Therefore, even if on the basis of mistake committed by the State Government the notification dated 10th June 2003 had been made by the Central Government, the question is, can the writ Court rectify the said mistake and, if the writ Court rectifies the same, what would be the effect thereof? If a mandamus is issued to incorporate those two Khasra numbers in the notification dated 10th June 2003, the same would tantamount to expansion of the policy, which the writ Court cannot do. The effect of such direction would be doing something which the Court is not competent to do. In the 6 circumstances, we are constrained to hold that, although it appears to us that Khasra Nos. 60 (d) and 61 were not incorporated in Annexure - II to the notification dated 10th June 2003 for the blunder on the part of the State in furnishing appropriate information to the Union of India, but we are incompetent to incorporate the same in the said notification, particularly, in view of the fact that when the said mistake was pointed out, the Central Government agreed to give advantage to new industrial units situated on the said Khasra numbers by incorporating Annexure - III to the notification dated 10th June 2003 by the amendment effected on 19th May 2005 and, accordingly, the same should be deemed to be a conscious decision of the Central Government and, in as much as the same pertains to a policy decision, the scope of intervention by the judiciary in that regard is absolutely limited. Apart from contending that the action complained of is discriminatory in nature, nothing else has been highlighted in the petition, on the basis whereof the said action can be called in question. In so far as discrimination is concerned, the policy granted benefit to industries situated at one place, but refused to give benefit to industries situated at other places. The policy itself discriminated one industry from another only on the basis of their location. Therefore, on the ground of discrimination, as such, there is no scope of interference in the matter.
5. We, accordingly, close the matter, but, however, before doing so, having noted the judgment of this Court dated 3rd March 2005, which has reached finality, we are of the view that the petitioner was entitled to know from the Central Government of the result of the consideration by the Central Government of the representation of the petitioner made pursuant to the said order of this Court and the same, having not yet been received, we ask the Central Government to make the same available to the petitioner within a period of six weeks from the date of service of a copy of this order upon Revenue Secretary, Government of India. We make it absolutely clear that, although there are pleadings to the effect that the petitioner has made substantial expansion in terms of the policy in question, but we have not gone into that aspect of the matter."
8. It is evident from a bare reading of para No.4 of the order, in WPMB No. 628 of 2005 dated 21.12.2010, that the Division Bench had categorically held that no mandamus could be issued to incorporate these two Khasra numbers in Annexure II of the notification dated 10.06.2003, as that would tantamount to expansion of the policy, which the Writ Court cannot do; the effect of such a direction would be doing 7 something which the Court was not competent to do; while Khasra Nos.60-Ka and 61 were not incorporated in Annexure II to the notification dated 10.06.2003, for the blunder on the part of the State in furnishing appropriate information to the Union of India, the Court was incompetent to incorporate the same in the said notification, particularly in view of the fact that, when the said mistake was pointed out, the Central Government had agreed to give advantage to new industrial units situated in the said Khasra numbers by incorporating Annexure III to the notification dated 10.06.2003, by the amendment effected on 19.05.2005; and since a conscious decision was taken by the Central Government, which was a policy decision, the scope of interference by the High Court was extremely limited.
9. The Division Bench also rejected the appellant-writ petitioner's plea, on the ground on discrimination, holding that the policy itself granted benefits to industries situated at one place, but refused to give the benefit to industries situated at another place; the said policy itself discriminated one industry from another only on the basis of their location; and there was no justification in interfering in the matter on the ground of discrimination. Having held that it could not add these two Khasra numbers in Annexure II of the notification dated 10.06.2003, the Division Bench noted that the earlier order of this Court in WPSB No. 181 of 2005 dated 03.03.2005, which had attained finality had not been complied with by the Central Government, and they had not conveyed their decision on the petitioner's representation. While directing the Government of India to consider the said representation within six weeks, the Division Bench closed the writ petition.
810. In this context it is necessary to note that the order of the Division Bench in WPMB No.628 of 2005 dated 21.12.2010 has attained finality. The validity of a judgment inter-parties, which has attained finality, cannot be agitated in collateral proceedings. When a particular decision has become final and binding between the parties, they will always be bound by the said decision. Either of the parties will not be permitted to reopen the issue decided by such a decision. (Supreme Court Employees Welfare Association Vs. Union of India: AIR 1990 SC 334). Such orders bind the parties in a subsequent litigation or before the same Court in the subsequent stage of the proceedings. (Barkat Ali v. Badrinarain: AIR 2001 Rajastan 51 ). An order of a Court/Tribunal of competent jurisdiction, directly upon a point, creates a bar, as regards a plea, between the same parties in some other matter in another Court/Tribunal where the said plea seeks to raise afresh the very point that was determined in the earlier order. (Swamy Atmananda v. Swami Bodhananda: AIR 2005 SC 2227; Iswar Dath Land Acquisition Collector: 2005(7) SCC 190). Issues which have been concluded interparties cannot be raised again in proceedings inter-parties. (State of Haryana Vs. State of Punjab: 2004(12) SCC 673).
11. It is pursuant to this order of the Division Bench, in W.P. (M/B) No.628 of 2005 dated 21.12.2010, that the Government of India had issued proceedings dated 05.07.2011 expressing their disinclination to include Khasra Nos.60-Ka and 61 in Annexure II of the notification dated 10.06.2003, holding that these Khasra numbers were included in Annexure III of the said notification. Under the guise of a challenge to the validity of the proceeding of the sixth respondent dated 05.07.2011, the appellant-writ petitioner has, in fact, sought for a similar relief of a mandamus being issued, as was sought 9 for, and was rejected, in WPMB No. 628 of 2005 dated 21.12.2010.
12. When W.P. (M/S) No.2123 of 2011, filed by the petitioner, was pending on the file of this Court, M/S Parvatiya Plywood Pvt. Ltd. filed WPMB Nos. 1 and 2 of 2015 to have the order passed by the Union of India dated 05.07.2011 quashed. A Division Bench of this Court, by its order dated 11.08.2015, negatived the challenge of M/S Parvatiya Plywood Pvt. Ltd. holding that no request could be made to include the Khasra numbers of the petitioner therein; the communication issued by the Secretary, Industries Department dated 13.12.2005 did not have the effect of vitiating the amended notification issued on 19.05.2005; the petitioner was not entitled to the benefit of exemption; in the list supplied by the Government of Uttarakhand through its Secretary, the petitioner did not figure in the list of recommendees; the Khasra numbers of the petitioner (M/S Parvatiya Plywood Pvt. Ltd.) were not mentioned therein; and there was, apparently, no basis to complain against the Central Government in regard to its decision not to include the khasra numbers of the petitioner.
13. The appellant-writ petitioner sought to distinguish the judgment of the Division Bench in M/S Parvatiya Plywood Pvt. Ltd. (WPMB Nos. 1 and 2 of 2015 dated 11.08.2015), before the learned Single Judge during the hearing of W.P. No.2123 of 2011, contending that while M/S Parvatiya Plywood Pvt. Ltd. had established the industrial unit at a location not specified in the exemption notification; the Jashodharpur industrial establishment, where the appellant- writ petitioner had located their unit, was mentioned; and their claim stood on a different footing as their complaint was only that two khasra numbers (60-Ka and 61 of Jashodharpur Industrial Estate) were not included in Annexure II of the notification.
1014. In the order under appeal, in W.P. (M/S) No.2123 of 2011 dated 30.05.2019, the learned Single Judge held that the issue involved in the present writ petition and WPMB No.1 of 2015 was identical; the present writ petition was covered by the judgment passed in WPMB No.01 of 2015; the relief claimed by the appellant-writ petitioner was for inclusion of Khasra Nos.60-Ka and 61 in the notification; this Court could not issue a direction to include a specific khasra number in, or to exclude a specific Khasra numbers from the notification; issuing a notification was a policy matter, and was exclusively within the domain of the competent authority; the High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, could not issue any direction to include Khasra Nos.60-Ka and 61 in the notification, unless the petitioner proved that this was an arbitrary and illegal act of the said authority; and there was no merit in the writ petition. Aggrieved thereby, the present appeal.
15. Mr. Pulak Raj Mullick, learned Counsel appearing on behalf of the appellant-writ petitioner, would submit that the proceedings issued by the sixth respondent dated 05.07.2011, gave rise to a distinct cause of action enabling the appellant-writ petitioner to again invoke the jurisdiction of this Court. The fact, however, remains that what the appellant-writ petitioner had sought, in the present writ petition, is, in effect, for inclusion of Khasra Nos.60-Ka and 61 of Jashodharpur industrial unit in Annexure II of the notification dated 10.06.2003 as amended by the notification dated 19.05.2005. Such a request has been specifically dealt with, and has been negative, by a Division Bench of this Court in its order in WPMB No.628 of 2005 dated 21.12.2010, and the said judgment inter-parties has attained finality. The petitioner cannot, in the guise of challenging the order passed by the sixth respondent dated 05.07.2011, again seek to re-
11open the matter which has been conclusively decided by the Division Bench of this Court in WPMB No.628 of 2005 dated 21.12.2010, more so, as they have permitted the said order of the Division Bench to attain finality, having chosen not to prefer any appeal there-against. Despite having mounted an unsuccessful challenge to the non-inclusion of Khasra Nos.60- Ka and 61 in Annexure II of the notification dated 10.06.2003 before the Division Bench, in WPMB No.628 of 2005, the appellant-writ petitioner has again invoked the jurisdiction of this Court seeking the very same relief, and has thereby abused the process of Court.
16. While Mr. Pulak Raj Mullick, learned counsel for the appellant-writ petitioner, would submit that the appellant-writ petitioner hass not suppressed relevant and material fact, and had, in fact, disclosed that they had filed WPMB No.628 of 2005 before filing of the present writ petition, teh fact remains that the jurisdiction of the High Court, under Article 226 of the Constitution of India, was invoked seeking the very same relief as was sought for in the earlier writ petition i.e. for inclusion of Khasra Nos.60-Ka and 61 in Annexure II of the notification dated 10.06.2003 as amended by the notification dated 19.05.2005. Invoking the extra-ordinary jurisdiction of this Court, under Article 226 of the Constitution of India, repeatedly seeking the very same relief all over again would also amount to abuse of process of Court. The Special Appeal is, accordingly, dismissed with exemplary costs of Rs.25,000/, which the appellant-writ petitioner shall pay, to the Government of India (Respondent No.1), within four weeks from today, failing which it is open to the first respondent to recover the said amount in accordance with law.
(Alok Kumar Verma, J.) (Ramesh Ranganathan, CJ.) 16.09.2019 Sanjay