Jharkhand High Court
State Of Jharkhand Through The ... vs Bir Steel (P) Limited on 13 June, 2018
Equivalent citations: AIRONLINE 2018 JHA 601, 2018 (4) AJR 147 (2018) 3 JCR 618 (JHA), (2018) 3 JCR 618 (JHA)
Author: H.C. Mishra
Bench: H.C. Mishra, B.B. Mangalmurti
-1- LPA No.211 of 2012
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 211 of 2012
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1. State of Jharkhand through the Secretary, Industries Department, Doranda, Ranchi.
2. Director of Industries, Industries Department, Doranda, Ranchi.
3. Deputy Director of Industries, Industries Directorate, Industries Department, Doranda, Ranchi.
4. The General Manager, District Industries Centre, Giridih. .... Appellants Versus Bir Steel (P) Limited, Giridih, Through its Director Sri Harish Kumar Sarawagi. ... Respondent
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PRESENT HON'BLE MR. JUSTICE H.C. MISHRA HON'BLE MR. JUSTICE B.B. MANGALMURTI
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For the Appellants State : Mr. Ajit Kumar, A.G.
Mr. Vikesh Kumar, J.C. to A.G.
Mrs. Aparajita Bhardwaj, J.C. to A.G.
For the Respondent : Mr.Sumeet Gododia, Advocate.
Mr. Ritesh Gupta, Advocate.
Mr. Ashwini Bhushan, Advocate.
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C.A.V. on: 12.04.2018 Pronounced on: 13.06.2018
H.C. Mishra, J.:- Heard Sri Ajit Kumar, learned Advocate General for the appellants State and Sri Sumeet Gadodia, learned counsel for respondent company.
2. Aggrieved by the Judgment dated 23.3.2012, passed by the Hon'ble Single Judge in W.P.(C). No. 3359 of 2011, whereby the writ application filed by the respondent company was allowed, setting at naught Rule 4.3 (Gha) (1) and (2) of the Jharkhand Industrial Incentive Rules, 2003, and quashing the order dated 24.12.2010 bearing Memo No. 2869, as contained in Annexure-2 to this memo of appeal, issued by the appellant No. 3, the appellant State has preferred this Letters Patent Appeal.
3. The facts of this case may be stated thus. Upon creation of the state of Jharkhand on 15th of November, in the year 2000, the State Government, in its Department of Industries, formulated its industrial -2- LPA No.211 of 2012 policy in the year 2001, known as Jharkhand Industrial Policy, 2001, with an object of optimal utilization of the available resources of the State in a planned manner, to accelerate the industrial development of the State, and to capitalize the industrial potential through planned utilization and development of natural and human resources and to gradually increase the employment opportunities. The objectives of the industrial policy included, inter alia, 'to encourage and involve private sector participation in the process of planned and rapid industrialisation of the State'. In the industrial policy formulated by the State Government, various incentives were proposed to be given to the newly established industries, and Clause 29.5 of the industrial policy provided for 'Interest Subsidy' to the newly established industries, which was aimed to encourage the industries to their continuous growth, and it was to be given for a period of 5 years from the date of starting commercial production. Clause 29.5 of the Jharkhand industrial policy reads as follows:-
29.5. Interest Subsidy The objective of providing this subsidy is to bring down interest cost of industry for the period an industry is most hard pressed. This subsidy is aimed to encourage industry to continuous growth rather than stagnate and contribute its share of prosperity to the State.
The interest subsidy admissible to new industries shall be admissible in the following manner on the interest actually paid to be (the) financial institution / banks on loans taken by such new industry:
Sl. Incentive Category Maximum Financial Limits (Lakhs) Incentive No. (%)
1. Interest A 25 The subsidy shall be limited to a sum of Rs. 100 lakhs per Subsidy B 50 annum provided the total C 60 interest subsidy shall not exceed 2% of the total sales amount made in the State of Jharkhand and / or in course of inter-state sales as supported by the certificate / document issued by the competent commercial tax authority. This subsidy shall be admissible for a period of 5 years for all categories of industries from the date of commercial production.-3- LPA No.211 of 2012
4. Clauses 36.2, 36.5 and 37.1 of the Jharkhand Industrial Policy, 2001, which are relevant for adjudication of this matter, are also reproduced herein below:-
36.2 All concerned departments and institutions shall issue follow-up notifications to give effect to the provisions of this policy within 30 days of declaration of this policy.
36.5 The State Government would carry out annual / midterm review of this policy.
37.1 Notwithstanding anything contained in the foregoing paragraphs of the industrial policy, the State Government by issuance of notification in the official gazette may amend or withdraw any of the provisions and / or the schemes mentioned herein above.
5. The State of Jharkhand, in its Department of Industries, framed its Rules in the year 2003, prescribing the eligibility and procedure for giving effect to the provisions of its industrial policy, relating to the grant of various incentives. The said Rules were titled as Jharkhand Industrial Incentives Rules, 2003, (hereinafter referred to as the '2003 Rules'), in which as regards grant of 'Interest Subsidy' provisions were made in Rule 4.3, prescribing the eligibility and procedure for grant thereof. Sub-Rule (Gha) (1) and (2) of Rule 4.3 prescribed the period within which the claim for 'interest subsidy' had to be made by any eligible industry. As the original text of the Rules is in Hindi language, Rule 4.3 (Gha) (1) and (2) may be translated in English as follows:-
4.3 Interest Subsidy 'Ka' to 'Ga' Not relevant 'Gha.' Time limit
1. It shall be compulsory for the intending unit to submit its claim, along with all the desired documents, complete in all respects, within the period of six months of the ending of any financial year.
2. The power to condone the period beyond six months shall be vested in the Director of Industries. The power to condone the time limit beyond that shall be vested in the Secretary of Industries.
It may be stated that Sub-clause (2), though may not be very happily worded, but the intention is clear that the power to condone the delay up to the period of six months vested in the Director of Industries, whereas the power to condone the delay beyond the period of six months vested in -4- LPA No.211 of 2012 the Secretary of the Industries Department, and there is no dispute on this point, by the respective parties. Thus, the said Rules, for the first time, made provision for limitation for claiming the 'interest subsidy'.
6. The respondent is a company registered under the Companies Act, 1956. Being a Small Scale Industry, it falls within Category 'B' under the Jharkhand Industrial Policy, 2001, as it is having its registered office in the District of Giridih. The respondent company is engaged in manufacturing of M.S. Wire and M.S. Nail, for which, it was granted permanent registration on 7.2.2004. The company is said to have started its commercial production since the year 2003-2004. It is the case of the respondent company that since it started its commercial production in the year 2003-2004, it was entitled to the interest subsidy w.e.f., financial year 2004-2005 up to financial year 2008-2009. The respondent company submitted its claim for interest subsidy jointly for the financial years 2006-2007 and 2007-2008 by filing application on 13.10.2008 before the General Manager, District Industries Centre at Giridih, who recommended the case of the respondent company for grant of interest subsidy vide its letter No. 268 dated 9.3.2009. However by the impugned order contained in Memo No. 2869 dated 24.12.2010, issued under the signature of the Deputy Director of Industries, Ranchi, as contained in Annexure-2 to the memo of appeal, the claim of the respondent company was rejected. In the said order, it was stated that the claim for interest subsidy for the years 2006-2007 and 2007-2008 had been filed by the company on 13.10.2008, which was barred by limitation by 1 year 13 days for the financial year of 2006-2007 and barred by 13 days for the financial year 2007-2008, which were beyond the time limit prescribed under 2003 Rules. It was further stated in the said order that the only reason given for the condonation of the delay was 'due to some unavoidable circumstances', which was not found to be sufficient and convincing ground for condonation of the delay, and accordingly, the prayer for the claim for the year 2006-2007 was rejected by the Secretary, Department of Industries, whereas the claim for the year 2007-2008 was rejected by the Director Industries. It is this order, which was impugned by the respondent company in W.P.(C). No. 3359 of 2011, out of which, the present Letters Patent Appeal arises.
-5- LPA No.211 of 20127. It was pleaded and argued in the said writ application that the Jharkhand Industrial Policy, 2001, nowhere provided for any such limitation, rather, the limitation was provided for the first time only in 2003 Rules and accordingly, the rules cannot curtail the substantive right already accrued in favour of the company under the Jharkhand Industrial Policy, 2001. It was also argued that Clause 36.2 of the Jharkhand Industrial Policy, 2001, only empowered the concerned department and institutions only to issue follow-up notifications to give effect to the provision of the policy. There was no provision in the Jharkhand Industrial Policy, 2001, empowering the state government to prescribe any period of limitation and as such, Rule 4.3 (Gha) (1) and (2) of 2003 Rules is beyond the scope of the Industrial Policy of 2001, and is ultra vires the industrial policy itself.
8. An alternative argument was also made that Rule 4.3 (Gha) (1) provided for the period of limitation to be computed from the end of six months of 'any financial year', therefore, the claim for interest subsidy was not required to be necessarily made after the end of every financial year, and therefore joint applications in respect of one or more financial years could be made together within six months of the end of the financial year, in which the application is submitted. It was submitted that since the joint application was filed for the years 2006-2007 and 2007- 2008, the limitation was to be calculated after six months of the end of financial year 2007-2008. The application claiming the interest subsidy having been submitted for the both the financial years jointly, on 13.10.2008, the delay, if any, was only of 13 days, which could be easily condoned by the State Government.
9. It was also argued by the writ petitioner that the Industrial Policy of 2001 having been framed for the benefits of industries, it was in a shape of beneficial legislation, and it had to be construed very liberally.
10. While adjudicating the writ application, the Hon'ble Single Judge negated the alternative submission of the writ petitioner that since the 2003 Rules provided for the period of limitation to be computed from the end of six months of 'any financial year', the cumulative applications in respect of one or more financial years could be made together within six months of the end of the financial year, in which the application is submitted. The Hon'ble Single Judge, however, held that the incentive -6- LPA No.211 of 2012 policy of 2001 does not speak about any period of limitation for claiming subsidy, as such provision of limitation provided by the State Government was beyond the intention of the policy and therefore, was liable to be set at naught, as the rules framed by the State Government imposing limitation, was in excessive exercise of the power. The Hon'ble Single Judge, relying upon the decisions of the Hon'ble Supreme Court of India in State of Mysore and Ors. Vs. Mallick Hashim & Co., reported in (1974) 3 SCC 251, G.B. Kumar & Sons Vs. The State of Bihar and Ors., reported in 70 STC 240, and Global Energy Ltd. & Anr. Vs. Central Electricity Regulatory Commission, reported in (2009) 15 SCC 570, held that the period of limitation, prescribed by the State Government amounted to a legislation which rendered the industrial policy framed by the Government redundant and it actually maimed the industrial policy. The Hon'ble Single Judge also held that the Rule prescribing limitation extinguished the right and affected the substantive right accrued to the company under the Industrial Policy of the State Government. Accordingly, the Hon'ble Single Judge quashed the order issued by the Deputy Director of Industries contained in Memo No.2869 dated 24.12.2010 and also set at naught the Rule 4.3 (Gha) (1) and (2) of the Jharkhand Industrial Incentive Rules, 2003, holding them to be beyond the scope, intention and purview of the Jharkhand Industrial policy, 2001. Aggrieved thereby, the present Letters Patent Appeal has been preferred by the appellant State and its officials in the Department / Directorate of Industries.
11. The only question to be decided in the present appeal is thus, whether Rule 4.3 (Gha) (1) and (2) of the Jharkhand Industrial Incentive Rules, 2003, is ultra vires the Jharkhand Industrial Policy, 2001, or whether the State Government was well within its powers to prescribe the period of limitation in the Rules, even though, there was no such provision in the Industrial Policy of 2001.
12. Sri Ajit Kumar, learned Advocate General appearing for the appellant State has submitted that the impugned Judgment passed by the Hon'ble Single Judge cannot be sustained in the eyes of law, as the Hon'ble Single Judge has failed to consider that both the Jharkhand Industrial Policy, 2001, as well as the 2003 Rules, have been framed by the State Government by way of executive orders. None of them have -7- LPA No.211 of 2012 been framed by the State Legislature. As such, both of them stand on the equal pedestal. If some provisions were missing in the Industrial Policy, 2001, which were found to be necessary for giving an 'effective effect' thereto, the same could very well be incorporated by the State Government, and this has been done by framing the 2003 Rules by the State Government, by issuing yet another executive order. Learned Advocate General has drawn our attention to Clauses 36.2, 36.5 and more particularly, to Clause 37.1, relating to power of the State Government, as provided under the Jharkhand Industrial Policy, 2001, as quoted above, and has submitted that under Clause 37.1, the State Government enjoys the power, notwithstanding anything contained in the Industrial Policy, to amend or withdraw any of the provisions and / or the schemes mentioned therein by issuing notification in the official gazette. The State Government is also entitled to carry out annual / midterm review of the policy and if required, any amendment therein is well within the powers of the State Government by issuing the notifications in the official gazette. Learned Advocate General accordingly, submitted that the State Government was well within its power to issue notifications, making provisions for implementing the different schemes in the industrial policy and to lay down the procedure therefor, which was done by issuance of the Jharkhand Industrial Incentive Rules, 2003. Learned Advocate General has submitted that it is a well settled principle of law that rules of limitation are not meant to destroy the rights of the parties, rather they are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly. In this connection, learned Advocate General has placed reliance upon the decision of the Hon'ble Supreme Court of India in N. Balakrishnan Vs. M. Krishnamurthy, reported in (1998) 7 SCC 123, wherein the law has been laid down as follows:-
"11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts.-8- LPA No.211 of 2012
So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time."
(Emphasis supplied).
Placing reliance on this decision, learned Advocate General submitted that if there was substantial failure on the part of the respondent company to obtain the benefit under the 'interest subsidy' owing to its own act of omission and commission, the company was rightly deprived by the State Government of the benefits of the scheme. It is submitted that only reason given for condonation of delay by the respondent company was 'due to some unavoidable circumstances', which was absolutely vague and non-specific, and such a vague application has rightly been rejected by the State Government, and there is no illegality in the same. In support of his contention, learned Advocate General has placed reliance upon the decision of the Supreme Court of India in A.P. Steel Re-Rolling Mill Ltd. Vs. State of Kerela and Ors., reported in (2007) 2 SCC 725.
13. Learned Advocate General has further submitted that since both the Industrial Policy, 2001, as well as 2003 Rules, have been issued under the exercise of the executive power by the State Government, both of them are only the policies of the state government and it is well settled principle of law that the Courts should be slow to interfere with the policies laid down by the State Government, unless it is palpably arbitrary, particularly when it relates to the complex economic matters. Dealing with the powers of the Courts in considering the validity of the policy decisions relating to economic matters, the learned Advocate General has referred to the decision of the Hon'ble Supreme Court in Balco Employees' Union (Regd.) Vs. Union of India and Ors., reported in (2002) 2 SCC 333, wherein, the Hon'ble Apex Court has discussed the law laid down by it in its earlier decisions, and has reiterated the law as follows:-
-9- LPA No.211 of 2012"36. In State of M.P. v. Nandlal Jaiswal --------- it was observed at pp. 605-06 as follows:
"34. -----------------. Moreover, the grant of licences for manufacture and sale of liquor would essentially be a matter of economic policy where the Court would hesitate to intervene and strike down what the State Government has done, unless it appears to be plainly arbitrary, irrational or mala fide. ---------. What we said in that case in regard to legislation relating to economic matters must apply equally in regard to executive action in the field of economic activities, though the executive decision may not be placed on as high a pedestal as legislative judgment insofar as judicial deference is concerned. We must not forget that in complex economic matters every decision is necessarily empiric and it is based on experimentation or what one may call 'trial and error method' and, therefore, its validity cannot be tested on any rigid 'a priori' considerations or on the application of any strait-jacket formula. The Court must while adjudging the constitutional validity of an executive decision relating to economic matters grant a certain measure of freedom or 'play in the joints' to the executive. --------------. The Court cannot strike down a policy decision taken by the State Government merely because it feels that another policy decision would have been fairer or wiser or more scientific or logical. The Court can interfere only if the policy decision is patently arbitrary, discriminatory or mala fide. It is against the background of these observations and keeping them in mind that we must now proceed to deal with the contention of the petitioners based on Article 14 of the Constitution."
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45. In Narmada Bachao Andolan v. Union of India19 there was a challenge to the validity of the establishment of a large dam. It was held by the majority at p. 762 as follows: (SCC para 229) "229. It is now well settled that the courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision. Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy-making process and the courts are ill-equipped to adjudicate on a policy decision so undertaken. The court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people's fundamental rights are not transgressed upon except to the extent permissible under the Constitution."
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92. In a democracy, it is the prerogative of each elected Government to follow its own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the court.
93. Wisdom and advisability of economic policies are ordinarily not amenable to judicial review unless it can be demonstrated that the policy is contrary to any statutory provision or the Constitution. In other words, it is not for the courts to consider relative merits of different economic policies and consider whether a wiser or better one can be evolved. -----
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(Emphasis supplied).
14. Learned Advocate General has further placed reliance upon the decision of the Hon'ble Supreme Court of India in M.P. Oil Extraction and Anr. Vs. State of M.P. and Ors., reported in (1997) 7 SCC 592, wherein, it has been held as follows:-
"41. ------------. The executive authority of the State must be held to be within its competence to frame a policy for the administration of the State. Unless the policy framed is absolutely capricious and, not being informed by any reason whatsoever, can be clearly held to be arbitrary and founded on mere ipse dixit of the executive functionaries thereby offending Article 14 of the Constitution or such policy offends other constitutional provisions or comes into conflict with any statutory provision, the Court cannot and should not outstep its limit and tinker with the policy decision of the executive functionary of the State. This Court, in no uncertain terms, has sounded a note of caution by indicating that policy decision is in the domain of the executive authority of the State and the Court should not embark on the unchartered ocean of public policy and should not question the efficacy or otherwise of such policy so long the same does not offend any provision of the statute or the Constitution of India. The supremacy of each of the three organs of the State i.e. legislature, executive and judiciary in their respective fields of operation needs to be emphasised. ------------."
15. Reliance has again been placed by learned Advocate General in the decision of Hon'ble Supreme Court of India in Col. A.S. Sangwan Vs. - 11 - LPA No.211 of 2012 Union of India and Ors., reported in 1980 Supp SCC 559, wherein, it has been held as follows:-
"4. The policy statement of 1964 was, as we have earlier stated, not issued under any rules or regulations or statute. The executive power of the Union of India, when it is not trammelled by any statute or rule, is wide and pursuant to its power it can make executive policy. ------------. A policy once formulated is not good for ever; it is perfectly within the competence of the Union of India to change it, rechange it, adjust it and readjust it according to the compulsions of circumstances and the imperatives of national considerations. We cannot, as court, give directives as to how the Defence Ministry should function except to state that the obligation not to act arbitrarily and to treat employees equally is binding on the Union of India because it functions under the Constitution and not over it. ---------. It is entirely within the reasonable discretion of the Union of India. It may stick to the earlier policy or give it up. But one imperative of the Constitution implicit in Article 14 is that if it does change its policy, it must do so fairly and should not give the impression that it is acting by any ulterior criteria or arbitrarily. --------."
(Emphasis supplied).
16. Learned Advocate General has also placed reliance upon the decision of the Hon'ble Supreme Court in Dhampur Sugar (Kashipur) Ltd. Vs. State of Uttaranchal and Ors., reported in (2007) 8 SCC 418, wherein it has been held as follows:-
"82. But as already discussed earlier, a court of law is not expected to propel into "the unchartered ocean" of government policies. Once it is held that the Government has power to frame and reframe, change and rechange, adjust and readjust policy, the said action cannot be declared illegal, arbitrary or ultra vires the provisions of the Constitution only on the ground that the earlier policy had been given up, changed or not adhered to. It also cannot be attacked on the plea that the earlier policy was better and suited to the prevailing situation."
(Emphasis supplied).
17. As it was argued by the learned counsel for the respondent that in any case, the claim of the respondent company is a money claim, and even if there is no limitation prescribed under the Rules, the law of limitation under the Limitation Act as regards the money claim shall apply, it is argued by learned Advocate General in reply that merely because 2003 Rules have prescribed a period of limitation in spite of there being general law under the Limitation Act, 1963, it does not follow - 12 - LPA No.211 of 2012 that provision for limitation could not be incorporated in the 2003 Rules. In this connection, learned Advocate General has placed reliance upon two decisions of Hon'ble Supreme Court of India, in P. Manohar Reddy & Bros. Vs. Maharashtra Krishna Valley Development Corpn. & Ors., reported in (2009) 2 SCC 494, as also in V.M. Salgaocar & Bros. Vs. Board of Trustees of Port of Mormugao & Anr. reported in (2005) 4 SCC 613, wherein it has been held as follows:-
"31. ------------. We agree with the observations made by the Division Bench in the said case that merely because a statute not dealing with the limitation in general prescribed period of limitation different from the one in the Indian Limitation Act, 1963 it does not follow that the provisions prescribing the said period of limitation violate Article 14 or 19(1)(f) of the Constitution."
18. Placing reliance on these decisions, learned Advocate General has submitted that since there was no period of limitation prescribed in the Jharkhand Industrial Policy, 2001, and the State Government thought that the subsidies being economic matters, it was expedient and necessary that there should be a period of limitation prescribed, so that there may not be any misuse of the provision, by yet another policy decision framing 2003 Rules, the State Government has prescribed the periods of limitation for claiming different incentives and subsidies, including the interest subsidy, by the newly established industries, for which, the State Government was well within its powers and there is no illegality in the same. Learned Advocate General submitted that in view of the law settled by the Hon'ble Supreme Court of India, Rule 4.3 (Gha) (1) and (2) of the 2003 Rules cannot be held to be ultra vires the Jharkhand Industrial Policy, 2001. It is reiterated by the learned Advocate General that by framing the period of limitation, the right to claim interest subsidy is not at all taken away by the State Government, rather the State Government has only imposed a reasonable restriction in claiming the interest subsidy within the period prescribed by the Rules. It is submitted that the Rules also provide for condonation of delay, if for valid reasons the application could not be submitted within the time prescribed under the 2003 Rules and as such, it cannot be said that the substantive right granted under the Industrial Policy of 2001, has been taken away or curtailed by prescribing the period of limitation in 2003 Rules. It is submitted by learned Advocate General that it is necessary to maintain - 13 - LPA No.211 of 2012 the economic discipline in the State of Jharkhand, so that the frivolous claims could not be made by the unscrupulous industries without caring for the responsibility to explain the undue delay in laying any such claim. Learned Advocate General accordingly, submitted that the impugned Judgment passed by the Hon'ble Single Judge suffers from inherent illegality and the same cannot be sustained in the eyes of law.
19. Sri Sumeet Gadodia, learned counsel for the respondent, on the other hand, has submitted that the Industrial Policy of 2001, is by way of beneficial legislation to the upcoming new industries in the State, which is to be construed liberally and the substantive rights to the industries provided under the industrial policy could not be curtailed by the State Government by framing the 2003 Rules. It is submitted by the learned counsel for the respondent company that a bare perusal of the Jharkhand Industrial Policy, 2001, would show that no period of limitation was prescribed for claiming the amount of interest subsidy under the policy, even no rule framing power had been provided under the Industrial Policy of 2001, rather Clause 36.2 of the Industrial Policy of 2001, saddled the responsibility upon the respective departments and institutions only to issue follow-up notifications to give effect to the provisions of policy, and no power was conferred upon the State Government under the policy to prescribe any period of limitation by way of issuance of follow-up notifications. Learned counsel accordingly, submitted that Rule 4.3 (Gha) (1) and (2) of the Jharkhand Industrial Incentive Rules, 2003, amounts to curtail the substantive right already created under the Jharkhand Industrial Policy, 2001, and as such, Rule 4.3 (Gha) (1) and (2) of the 2003 Rules, is violative and ultra vires the Industrial Policy of 2001.
20. In support of his contention that the industrial policy, being a beneficial legislation, should be interpreted liberally, learned counsel has placed reliance upon the decision of the Hon'ble Supreme Court of India in Assistant Commissioner (CT) LTU and Anr. Vs. Amara Raja Batteries Ltd., reported in (2009) 8 SCC 209, wherein, it has been held as follows:-
"21. An exemption notification should be given a literary (sic literal) meaning. Recourse to other principles or canons of interpretation of statute should be resorted to only in the event the same give rise to anomaly or absurdity. The exemption - 14 - LPA No.211 of 2012 notification must be construed having regard to the purpose and object it seeks to achieve. The Government sought for increase in industrial development in the State. Such a benevolent act on the part of the State, unless there exists any statutory interdict, should be given full effect.
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24. The exemption notification furthermore as is well known should be construed liberally once it is found that the entrepreneur fulfils all the eligibility criteria. In reading an exemption notification, no condition should be read into it when there is none. If an entrepreneur is entitled to the benefit thereof, the same should not be denied."
(Emphasis supplied).
21. Learned counsel has also placed reliance in this connection upon the decision of the Apex Court in State of Jharkhand and Ors. Vrs. TATA Cummins Ltd. & Anr., reported in (2006) 4 SCC 57, wherein it has been held as follows:-
"16. ----------. An exemption from payment of tax under an enactment is an exemption from the tax liability. Therefore, every such exemption notification has to be read strictly. However, when an assessee is promised with a tax exemption for setting up an industry in the backward area as a term of the industrial policy, we have to read the implementing notifications in the context of the industrial policy. In such a case, the exemption notifications have to be read liberally keeping in mind the objects envisaged by the industrial policy and not in a strict sense as in the case of exemptions from tax liability under the taxing statute."
22. In support of his contention that there should be no curtailment in the substantive rights granted under the Industrial Policy, learned counsel has again placed reliance upon the decision of the Hon'ble Supreme Court of India in Global Energy Limited & Anr. Vs. Central Electricity Regulatory Commission, reported in (2009) 15 SCC 570, (relied upon by the Hon'ble Single Judge also), laying down the law as follows:-
"25. It is now a well-settled principle of law that the rule-making power "for carrying out the purpose of the Act" is a general delegation. Such a general delegation may not be held to be laying down any guidelines. Thus, by reason of such a provision alone, the regulation-making power cannot be exercised so as to bring into existence substantive rights or obligations or disabilities which are not contemplated in terms of the provisions of the said Act.- 15 - LPA No.211 of 2012
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27. The power of the regulation-making authority, thus, must be interpreted keeping in view the provisions of the Act. The Act is silent as regards conditions for grant of licence. It does not lay down any pre-qualifications therefor. Provisions for imposition of general conditions of licence or conditions laying down the pre-qualifications therefor and/or the conditions/qualifications for grant or revocation of licence, in absence of such a clear provision may be held to be laying down guidelines by necessary implication providing for conditions/qualifications for grant of licence also."
23. Learned counsel has further placed reliance upon the decision of the Apex Court in M/s. Bharat Barrel and Drum Mfg. Co. Ltd. & Anr. Vs. The Employees State Insurance Corporation, reported in (1971) 2 SCC 860, wherein where, the question before the Hon'ble Supreme Court was that whether Rule 17 of the Employees State Insurance Rules was ultra vires the rule making power of the State Government under Section 96(1) of the Employees State Insurance Act. It may be stated that by Rule 17 of the Employees State Insurance Rules, the limitation of 12 months was provided from the date of arising of the cause of action for bringing the application in the Court under Employees State Insurance Act. Under the Act, there was no provision for any limitation. The Hon'ble Supreme Court answered the question in affirmative. In this connection learned counsel has again placed reliance upon a decision of the Hon'ble Supreme Court of India in State of Jharkhand & Ors. Vs. Shivam Coke Industries & Ors., reported in (2011) 8 SCC 656, wherein where, no limitation for exercise of suo motu power of revision was prescribed in the statute, but the High Court held that Art.137 of the Limitation Act would apply, the law was laid down by the Apex Court as follows:-
"44. We are again unable to accept the aforesaid contention as the legislature has not stated in the provision at all regarding the applicability of Article 137 of the Limitation Act to Section 46(4) of the BFT Act. If the legislature intended to provide for any period of limitation or intended to apply the said provision of Article 137 into Section 46(4), the legislature would have specifically said so in the Act itself. When the language of the legislature is clear and unambiguous, nothing could be read or added to the language, which is not stated specifically. Therefore, the High Court wrongly read - 16 - LPA No.211 of 2012 application of Article 137 of the Limitation Act to Section 46(4) of the BFT Act.
45. It is a settled position of law that while interpreting a statute, nothing could be added or subtracted when the meaning of the section is clear and unambiguous. In this connection we may also refer to the decision of this Court in Sakuru v. Tanaji wherein it was stated by this Court that the Limitation Act applies to courts and not to quasi-judicial authority. The aforesaid principle and settled position of law was totally ignored by the High Court while laying down that Article 137 of the Limitation Act would be applicable to the facts and circumstances of the present case."
(Emphasis supplied).
24. Learned counsel has further placed reliance upon the decision of the Apex Court in State of Bihar and Ors. Vs. Suprabhat Steel Ltd. & Ors., reported in (1999) 1 SCC 31, and in State of Orissa and Ors. Vrs. Tata Sponge Iron Ltd., reported in (2007) 8 SCC 189, which related to the industrial incentive policies framed by the State of Bihar and the State of Orissa respectively, wherein the Hon'ble Supreme Court held that if a notification is repugnant to the industrial policy, the notification would be bad to that extent, and upheld the orders of the High Courts quashing the same. It is also pointed out by the learned counsel that similar view has been taken by Patna High Court in M/s Shakti Tube Ltd. Vrs. State of Bihar and Ors., reported in 2009 (4) PLJR 896.
25. Reliance has also been placed by the learned counsel for the respondent company upon the decision of the Hon'ble Supreme Court of India in State of Mysore and Ors. Vs. Mallick Hashim & Co., reported in (1974) 3 SCC 251, which related to Central Sales Tax Act. Rules were framed prescribing that the statement claiming refund had to be submitted before the assessing authority not later than the date the return was due, which provision was not there under the Sales Tax Act. The Rule was held to be ultra vires the rule making power. It is pointed out by the learned counsel that similar view has again been taken by the Patna High Court in G.B. Kumar & Sons Vs. The State of Bihar and Ors., reported in 70 STC 240.
26. Placing reliance on these decisions, learned counsel for the respondent company reiterated that the provisions of the Jharkhand Industrial Policy, 2001, are to be construed liberally, and substantive right accrued in favour of the respondent company could not be, in any - 17 - LPA No.211 of 2012 manner, curtailed by bringing Rule 4.3 (Gha) (1) and (2) in the 2003 Rules, prescribing the period of limitation. As such Rule 4.3 (Gha) (1) and (2) is ultra vires the Industrial Policy, 2001. It has also been submitted by learned counsel that, in any case, the claim for interest subsidy is a money claim and even if no limitation is prescribed, it will be governed by the general laws of the Limitation Act, 1963. Learned counsel accordingly, submitted that the law has been rightly decided by the Hon'ble Single Judge in the writ application filed by the respondent company, and this Letters Patent Appeal is devoid of any merit and is fit to be dismissed.
27. Having heard learned counsels for both the sides, we find that the cases relied upon by the learned counsel for the respondent, including the decision of the Hon'ble Supreme Court in Globle Energy Ltd. (supra), relied upon by the Hon'ble Single Judge in the impugned Judgment, relate to the matters where the Rules framed by the State Government were contrary to the provisions of the Act framed by the Legislature. In other words, provisions of the Act enacted by the Legislature were sought to be modified / curtailed by the Rules framed by the State. In the present case, the situation is quite different. Jharkhand Industrial Policy, 2001, is not at all the creation of the Legislature. The Industrial Policy of 2001, as well as, the 2003 Rules, both of them are only the creations of the State Government in exercise of its executive power. In other words, both of them stand at equal pedestal and both of them may be termed as the policies of the State Government. The preamble of 2003 Rules nowhere states that it has been issued in exercise of Clause 36.2 of the Industrial Policy of 2001, rather it is an independent Rule framed by the State Government, prescribing eligibility and procedure for giving the benefits to the newly established industries under the Jharkhand Industrial Policy, 2001. We also find that since the period of limitation has been prescribed under Rule 4.3 (Gha) (1) and (2) of the 2003 Rules, which relates to claiming interest subsidy, it can very well be construed that this policy decision of the State Government relates to an economic policy of the State Government. The law in this regard is well settled in Balco Employees' Union (Regd.) (supra), wherein, upon discussing the earlier decisions in this regard, the Hon'ble Supreme Court has laid down the law that economic policies are not amenable to judicial review, unless - 18 - LPA No.211 of 2012 it can be demonstrated that the policy is contrary to any statutory provision or the Constitution, or if the policy decision is patently arbitrary, discriminatory or mala fide. In Col. A.S. Sangwan's case (supra), the Hon'ble Supreme Court has gone to the extent of stating that it is entirely within the reasonable discretion of the Government, either to stick to its earlier policy or to give it up, but one imperative of the Constitution implicit in Article 14 is that if policy is changed, it must done fairly and not arbitrarily. In N. Balakrishna's case (supra), it is categorically held that the rules of limitation are not meant to destroy the rights of the parties, rather they are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly. Thus the submission of learned counsel for the respondent company, that the Rule 4.3 (Gha) (1) and (2) of the 2003 Rules, destroys or curtails the substantive right conferred by the Industrial Policy, 2001, has no legs to stand in view of the law laid down by the Hon'ble Supreme Court of India, as discussed above. Indeed, the Hon'ble Apex Court has gone to the extent stating that even if the matter is governed by the general law of limitation under the Limitation Act of 1963, the separate provision for prescribing limitation could still be made. In Shivam Coke Industries case, (supra), relied upon by the learned counsel for the respondent, it has been held that the Limitation Act applies to Courts and not to quasi-judicial authority. It is not in dispute that the Secretary / Director of Industries, while exercising the power under Rule 4.3 (Gha) (2) of the 2003 Rules, act as a quasi-judicial authority. As such, the contention of the learned counsel for the respondent, that the claim of interest subsidy being a money claim, it would be governed by the general laws of the Limitation Act, 1963, cannot be accepted, as the Limitation Act, 1963, shall have no application in the present case. Accordingly, it was absolutely necessary for the State Government to make the provision for limitation separately and specifically, if it intended to do so. Jharkhand Industrial Policy, 2001, not being a creation of the Legislature, and having been framed by the State Government in exercise of the executive power, the State Government was quite competent to frame yet another policy making the provision for limitation separately and specifically, which has been done by framing the 2003 Rules.
- 19 - LPA No.211 of 201228. As such, we are of the considered view that the case laws cited by the learned counsel for the respondent company, as also relied upon by the Hon'ble Single Judge, have no application to the facts of this case. Hon'ble Single Judge has come to a wrong and erroneous conclusion that Rule 4.3 (Gha) (1) and (2) of 2003 Rules, prescribing the period of limitation extinguishes or maims the rights and affects the substantive right accrued under the Industrial Policy of 2001. We are of the considered view that no right is either extinguished or maimed by bringing the provisions of limitation under the 2003 Rules, rather only restriction has been imposed, directing the industry concerned to claim the interest subsidy within the prescribed time. It also made adequate provision that in appropriate cases, upon showing the reasonable cause, the delay may be condoned by the Director Industries and if the delay is longer, it may be condoned by the Secretary of the Industries. We find this restriction to be a reasonable restriction imposed by the State Government by framing the Rules. Such a Rule was absolutely necessary, particularly in the context of State of Jharkhand, which is suffering a lot of scams, not only since its inception, rather even since prior to its inception. The infamous fodder scam is an example before us, which took place in the undivided Bihar, when Jharkhand was a part of the State of Bihar, and most of the districts affected, now belong to the State of Jharkhand. Even after its inception, this State has been very unfortunate to suffer a lot of scams, and most unfortunate part of it is that in some of the scams the 'people in power' are said to be deeply involved. We are reminded of a poem by the famous Hindi Poet, Sri Gopal Singh Nepali, the very opening line of which fully describes the state of affairs in this State, which reads thus, " बदनाम रहे बटमार मगर, घर तो रखवालोों ने लू टा"
(The thieves are unnecessarily being blemished. The house was actually looted by none else than the protectors of the house.) In the financial matters, if reasonable restrictions are not imposed, nobody knows when a beneficial 'scheme' shall turn into a 'scam'. A lot of writ applications are pending in this Court, in which, the benefits under the interest subsidy under the Jharkhand Industrial Policy, 2001, have been denied to the different industries due to inordinate delays. In one such writ application, i.e., W.P.(C) No. 3352 of 2013 (M/s Usha - 20 - LPA No.211 of 2012 Martin Ltd. Vs. State of Jharkhand and Ors.), we are informed, that the claim for interest subsidy, was barred by limitation of eight long years.
29. We are of the considered view that if no period of limitation was prescribed in the Jharkhand Industrial Policy, 2001, it was not good for the economic health of the State. It was rather a grave mistake committed at the time of framing the Industrial Policy. The State of Jharkhand has subsequently corrected its mistake and has come out with a very welcome step by incorporating Rule 4.3 (Gha) (1) and (2) in the 2003 Rules, prescribing the period of limitation. This being the policy of the State Government, concerning the economy of the State, the Courts must not interfere with, once it is found to be reasonable restriction imposed by the State Government.
30. Accordingly, the findings of the Hon'ble Single Judge in the impugned Judgment dated 23.3.2012, passed in W.P.(C). No. 3359 of 2011, that Rule 4.3 (Gha) (1) and (2) of the 2003 Rules, prescribing the period of limitation was beyond the intention of the industrial policy and therefore, was liable to be set at naught, and that the rules framed by the State Government imposing limitation, was in excessive exercise of the power and extinguishes and maims the rights and affects the substantive right accrued under the Industrial Policy of 2001, cannot be sustained in the eyes of law.
31. We find that the Hon'ble Single Judge has rightly negated the alternative submission of the writ petitioner that since the 2003 Rules provided for the period of limitation to be computed from the end of six months of 'any financial year', the joint applications in respect of one or more financial years could be made together within six months of the end of the financial year, in which the application is submitted. There can be no doubt in the proposition that the period of limitation has to be computed from the end of six months of that particular financial year, for which the claim for interest subsidy is made.
32. To conclude, we find and hold that Rule 4.3 (Gha) (1) and (2) of the Jharkhand Industrial Incentive Rules, 2003, is neither ultra vires, nor against the provisions of the Jharkhand Industrial Policy, 2001, rather it imposes only a reasonable restriction for claiming the benefits of interest subsidy under the said Industrial Policy, for which, the State Government - 21 - LPA No.211 of 2012 was fully empowered and authorized under Clause 37.1 of the Jharkhand Industrial Policy of 2001 itself, r/w Clauses 36.2 and 36.5 thereof.
33. For the foregoing reasons, we find that the impugned Judgment dated 23.03.2012, passed by the Hon'ble Single Judge in WP(C) No.3359 of 2011, suffers from inherent illegality, and cannot be sustained in the eyes of law, which we hereby, set-aside. We also do not find any illegality in the impugned order issued by the Deputy Director of Industries, Ranchi, bearing Memo No.2869 dated 24.12.2010, contained in Annexure-2 to this memo of appeal, whereby, the application dated 13.10.2008, claiming the interest subsidy by the respondent company for the years 2006-2007 and 2007-2008, have been rejected by the concerned authorities for the reason that the respondent company had not given any valid or convincing reason for condonation of the delay, rather it had only given the vague and evasive reason stating that the delay was 'due to some unavoidable circumstances'. Such matters have to be dealt with by firm hands and it has rightly been dealt with by the concerned authorities in the case of the respondent company, which also, we, hereby, affirm. Accordingly, we do not find any merit in the writ application being WP(C) No.3359 of 2011, which consequently, stands dismissed.
34. This Letters Patent Appeal is accordingly, allowed, in the aforesaid terms.
(H.C. Mishra, J.) B.B. Mangalmurti, J.:-
(B.B. Mangalmurti, J.) Jharkhand High Court, Ranchi.
Dated, the 13th of June,2018.
R. Kumar/AFR