Bombay High Court
Parag Milks Foods Ltd vs The State Of Maharashtra Thr Principal ... on 26 August, 2024
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2024:BHC-AS:34247-DB
wp-11719-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11719 OF 2023
Parag Milk Foods Ltd., Pune .. Petitioner
Versus
The State of Maharashtra
Through Department of Agricultural,
Animal Husbandry, Dairy Development
and Fisheries and Ors. .. Respondents
ASHVINI Mr. P. B. Shah a/w. Gunjan Shah i/b. Mr. K. P. Shah for the Petitioner.
BAPPASAHEB
KAKDE
Digitally signed by Mr. G. S. Godbole, Spl. Senior Advocate a/w. P.P. Kakde, GP. Ms. Shruti D. Vyas,
ASHVINI
BAPPASAHEB KAKDE Addl. G. P. and Ms. P. J. Gavhane, AGP for the State.
Date: 2024.08.27
15:38:41 +0530
CORAM : G. S. KULKARNI &
FIRDOSH P. POONIWALLA, JJ.
RESERVED ON : 15th APRIL 2024
PRONOUNCED ON : 26th AUGUST 2024
JUDGEMENT (Per Firdosh P. Pooniwalla J.):-
1. Rule. Rule made returnable forthwith. Heard finally by consent of the parties.
2. In 2018, there was a drastic fall in the prices of Milk Powder in the domestic as well as the international market and all manufacturers of Milk Powders Page 1 of 20 Ashvini Narwade ::: Uploaded on - 27/08/2024 ::: Downloaded on - 28/08/2024 02:39:40 ::: wp-11719-2023.doc were not able to sell Milk Powder as manufactured by them at prices which would break even their costs. The prices had reduced drastically and did not cover the basic cost of milk, production cost, manufacturing cost and other expenses etc. Due to the same the stock of Milk Powder with each and every manufacturer in Maharashtra was increasing. As a consequence, the manufacturers, including the Petitioner, reduced procurement of milk from the end milk farmers as the demand of the Milk Powder has reduced. In furtherance of the same, the fresh production of milk was also reduced. The milk farmers were accordingly unable to sell their milk which resulted in additional milk in the State of Maharashtra.
3. Respondent No.1 floated a Scheme for grant of Export Subsidy to clear existing stock within the State and restart the manufacturing/production of milk powder. The intention behind such subsidy was that manufacturers of Milk Powder would sell their existing stock in the international market and start manufacturing fresh milk power and for the same would start procuring milk from the milk farmers.
4. One such Scheme was introduced by Respondent No.1 by issuing Government Resolution dated 20 th July 2018. The said Government Resolution dated 20th July 2018 introduced two schemes, i.e., Scheme A and Scheme B. Scheme A provided for a subsidy for Rs.50 per metric ton and Rs. 15 per litre of Milk for export Page 2 of 20 Ashvini Narwade ::: Uploaded on - 27/08/2024 ::: Downloaded on - 28/08/2024 02:39:40 ::: wp-11719-2023.doc of the same in the three months, i.e., August, September and October, 2018. Scheme provided for subsidy of Rs. 5 per litre of milk supplied for conversion into milk powder which would be payable either to the milk supplier or the milk producer.
5. Further Respondent No.1 introduced a clarification to that Scheme and an additional clause bearing No. B-3 was introduced whereby it was clarified that if the milk manufacturer would take benefit under Scheme-B then it would not be entitled to Export Subsidy as per Scheme-A.
6. Due to several reasons, the Schemes dated 20 th July 2018 were not implemented. Therefore, Respondent No.1 issued an amended Government Resolution dated 31st July 2018 whereby a revised scheme was introduced in place of the earlier Scheme. The revised Scheme was applicable only to the stock of milk powder which existed as on 30 th June 2018. Respondent No.1 had inspected the stock of milk powder in the Milk Dairies/manufacturing units all over the state of Maharashtra and the same was calculated at 30183 metric tonnes as on 30 th June 2018. This revised Scheme was to come into effect from 1 st August 2018. Further, Clause B- 3, which was present in Government Resolution dated 20 th July 2018, was consciously removed by Respondent No.1 in the Government Resolution dated 31 st July 2018. Page 3 of 20 Ashvini Narwade ::: Uploaded on - 27/08/2024 ::: Downloaded on - 28/08/2024 02:39:40 ::: wp-11719-2023.doc
7. It is the case of the Petitioner that, as on 30 th June 2018, it had 2173 metric tonnes of Milk Powder in stock which formed part of the aforesaid 30183 metric tonnes of Milk Powder which was inspected and calculated by the Respondents pursuant to the Government Resolution dated 31 st July 2018. Further it is the case of the Petitioner that it admittedly exported 1617 metric tonnes of Milk Powder between 1st December 2018 and 5th January 2019. Therefore, according to the Petitioner, it became entitled to receive the Export Subsidy at Rs. 50/- per kg. of Milk Powder and thus was entitled to Rs. 8,08,50,000/- under the said Government Resolution dated 31st July 2018.
8. Thereafter, the Petitioner filed a detailed Application on 6 th February 2019 requesting the Respondents to release the subsidy amount. The said Application included the following details:-
"(1) Manufacturing Batch Number and date of manufacture;
(2) Details of Certificate of Inspection;
(3) Certificate of ISI (4) Certificate issued by Export Inspection Council of India;
(5) Certificate issued by FSSAI;
(6) Letter of Indemnity/Proforma Invoice;
(7) Export Invoice and Packing List;
(8) Shipping Bills Page 4 of 20 Ashvini Narwade ::: Uploaded on - 27/08/2024 ::: Downloaded on - 28/08/2024 02:39:40 ::: wp-11719-2023.doc (9) Bills of Lading (10) Confirmation of receipt of the milk powder;
(11) Affidavit cum Indemnity Bond certifying that the details as provided are true and correct."
9. As there was no reply from the Respondents to the said Application dated 6th February 2019, a letter dated 22nd March 2019 was submitted to the Respondents thereby once again requesting for the release of the subsidy amount under Government Resolution dated 31st July 2018.
10. In the meanwhile, entities similarly placed to the Petitioner approached this Court by filing a Writ Petition, being Writ Petition No.747 of 2021, seeking directions to the Respondents to pay them the amount of Export Subsidy. By an Order dated 28th September 2021 this Court directed Respondent No.1 to take a fresh decision within a period of three months after hearing all concerned.
11. Pursuant to the said Order dated 28th September 2021, Respondent No.2 called upon all the manufacturers of Milk Powders who had submitted their claim as per the Government Resolution dated 31 st July 2018. Accordingly, the Petitioner was also sent a notice to attend a hearing on 7 th October 2021. The representatives of the Petitioner attended the hearing on 7 th October 2021 and put Page 5 of 20 Ashvini Narwade ::: Uploaded on - 27/08/2024 ::: Downloaded on - 28/08/2024 02:39:40 ::: wp-11719-2023.doc forth their case before Respondent No.2. By an Order dated 4 th March 2022, Respondent No.2 held that the Milk Powder manufacturers, including the Petitioner, were entitled to receive Export Subsidy as per the Government Resolution dated 31 st July 2018. It was further observed that the Scheme implemented as per the Government Resolution dated 31st July 2018, was for export of the stock of Milk Powder which was in existence as on 30 th June 2018. It was also observed that no benefit under any other scheme was given in respect of stock of Milk Powder as on 30th June 2018. It was observed that there was no question of giving double benefit for the export of stock of Milk Powder which was in existence as on 30 th June 2018 and therefore the Milk Powder manufacturers, including the Petitioner, were held to be entitled to receive the Export Subsidy for the stock exports held between 1 st August 2018 and 19th January 2019.
12. Accordingly, Respondent No.2 conducted a detailed inquiry and submitted a report dated 26th May 2022 confirming that the Milk Powder exported by the Petitioner, i.e., 1617 metric tonnes, is out of the stock which was in existence on 30th June 2018 and hence the Petitioner was entitled to receive the export subsidy under the Government Resolution dated 31 st July 2018. It was expressly admitted that the Petitioner was entitled to an export subsidy of Rs. 8,08,50,000/- Page 6 of 20 Ashvini Narwade ::: Uploaded on - 27/08/2024 ::: Downloaded on - 28/08/2024 02:39:40 ::: wp-11719-2023.doc
13. After the Report dated 26th May 2022, the Petitioner made several requests to Respondent No.2 to release the Export Subsidy but the Respondents refused to abide by the Order dated 4 th March 2022 and the said Report dated 26 th May 2022.
14. In these circumstances, one of the similarly placed entities, namely Indapur Dairy Milk Products Ltd. ( "Indapur"), approached this Court by filing a Writ Petition, being Writ Petition No.1819 of 2023. In the said Writ Petition, by an Order dated 20th March 2023, this Court directed the State Government to act on the Order dated 4th March 2022 without delay with respect to the principal amount stated in the said Order and left the question on interest pending. The Court also directed that the Order dated 4th March 2022 should be implemented and the amount be disbursed by 24th April 2023.
15. Despite the Order dated 20th March 2023, the Respondents did not disburse the said amount and filed an Application seeking extension of two months to comply with the Order dated 20th March 2023. The said Application stated that the proposal was submitted to the finance department, that the file was now with the finance department for final approval and that the finance department had requested to take some extension of time from this Court.
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16. By an Order dated 26th April 2023, passed by this Court, the said Application for extension was rejected and it was held that there was no question of the finance department approving the file once an Order had been passed by this Court. The Respondents were directed to make payment in accordance with the Order dated 20th March 2023 no later than by 10th May 2023. It was also held that if that was not done, the Court would have proceed to enforce the order, if necessary in contempt.
17. Since the Petitioner was similarly placed as Indapur, it submitted a fresh Application dated 5th June 2023 to Respondent Nos.1 and 2 requesting them to consider its claim, abide by the said Order dated 26th April 2023 and release the payment of Export Subsidy.
18. It is submitted by the Petitioner that, despite the Orders of this Court as well as repeated Applications by the Petitioner, the Respondents have blatantly refused to release the payment without any valid or cogent reason. The Petitioner submits that the entitlement of the Petitioner was confirmed by the Order dated 4 th March 2022 of the Respondents. Further, the Report dated 26th May 2022 prepared by Respondent No.2 confirmed the exact amount of entitlement of Export Subsidy as Rs.8,08,50,000/-. Despite the same, the said amount had not been disbursed to the Page 8 of 20 Ashvini Narwade ::: Uploaded on - 27/08/2024 ::: Downloaded on - 28/08/2024 02:39:40 ::: wp-11719-2023.doc Petitioner. The Petitioner submitted that the issue regarding the entitlement, eligibility, quantum of export and the exact amount of Export Subsidy had already been decided by the Respondents vide Order dated 4 th March 2022 and Report dated 26th May 2022. Further, this Court had passed Orders dated 20 th March 2023 and 26th April 2023 directing the Respondents to disburse the amount of Export Subsidy, but the Respondents had failed to do so without any valid and cogent reason.
19. The Petitioner further submits that, relying upon the Government Resolution dated 31st July 2018, they had exported 1617 metric tonnes of Milk Powder between 1st August 2018 and 19th January 2019, especially when the prices of Milk Powder in the international market were much lower. It was upon the assurances and promises by the State Government, pursuant to the Resolution dated 31 st July 2018, that the Petitioner had exported a huge stock of Milk Powder at a lower price, which would not even cover the production cost. The Petitioner submitted that it had relied upon the Government Resolution dated 31st July 2018 and hence the Respondents were now bound to abide by the assurances and promises given by them in the said Government Resolution by disbursing the export subsidy.
20. In these circumstances, the Petitioner has filed the present Petition seeking release of export subsidy of Rs. 8,08,50,000/-. Page 9 of 20 Ashvini Narwade ::: Uploaded on - 27/08/2024 ::: Downloaded on - 28/08/2024 02:39:40 ::: wp-11719-2023.doc
21. In response, it was submitted on behalf of the Respondents that the Rules of Business made under Article 166(3) of the Constitution of India are mandatory. It was submitted that the Government Resolution dated 31 st July 2018 had been issued without the concurrence of the Finance Department and without a resolution of the Council of Ministers. The said Government Resolution dated 31 st July 2018, if implemented, had substantial financial implications. Rule 9 of the Maharashtra Government Rules of Business mandates that, save in exceptional circumstances, under the directions of the Chief Minister, any case in which the Finance Department is required to be consulted under Rule 11, cannot even be discussed by the Council of Ministers unless the Finance Minister has had the opportunity for its consideration. It was further submitted that Rule 11 mandates that, without prior consultation with the Finance Department, no department shall authorise any order which will affect the finance of the State. Sub Rule (2) of Rule 11 however empowers the Council of Ministers to approve the decision even if the Finance Department is not consulted. The Respondents submitted that, in these circumstances, the Government Resolution dated 31 st July 2018 cannot be implemented and payment of Export Subsidy cannot be made to be Petitioner.
22. In support of these submissions the Respondents relied upon a judgement of the Supreme Court in Haridwarsingh V/s. Bagun Sumbrui1, wherein 1 (1973) 3 SCC 889 Page 10 of 20 Ashvini Narwade ::: Uploaded on - 27/08/2024 ::: Downloaded on - 28/08/2024 02:39:40 ::: wp-11719-2023.doc Rules of Executive Business made under Article 166 (3) of the Constitution of India by the Governor of Bihar were considered. The Respondents relied upon paragraph 16 of the said judgement in which the Supreme Court held that Rule 10, which was similar to Rules 9 and 11 of the Maharashtra Business Rules, was mandatory. The Respondents also relied upon the judgment of the Supreme Court in M.R.F. Limited Vs Manohar Parrikar2, wherein it was held that Rules 3,6 and 7 of the Rules of Business of Government of Goa regarding consultation of Finance Department are mandatory and not directory.
23. Further the Respondents submitted that, since the Government Resolution dated 31st July 2018 did not have the concurrence of the Finance Department nor was supported by a Resolution of the Council of Ministers, the Petitioner cannot claim parity irrespective of the Orders dated 20 th March 2023 and 26th April 2023 passed in Writ Petition No.1819 of 2023 in the case of Indapur. The Respondents submitted that the Court had proceeded on a misconception that the recommendation of the Principal Secretary (Ah and DD) dated 4th March 2022 was an Order whereas it was a only a recommendation, clearly stating that there should be a scrutiny of record to find out whether there is any dual benefit taken under the Government Resolutions dated 28th July 2018 and 31st July 2018 and thereafter to submit a proposal to the Finance Department with the approval of the Minister of 2 (2010) 11 SCC 334 Page 11 of 20 Ashvini Narwade ::: Uploaded on - 27/08/2024 ::: Downloaded on - 28/08/2024 02:39:40 ::: wp-11719-2023.doc Dairy Development. The Respondents submitted that this was just a recommendation and not a decision. Further, the attention of this Court was not invited to the Rules of Business framed under Article 166(3) of the Constitution of India, their mandatory character and the absence of adherence to the Rules while issuing Government Resolution dated 31st July 2018. The Respondents submitted that, in these circumstances, the Petitioner could not claim parity with Indapur as the same would result in claiming negative equality, which is prohibited in law. In support of this submission, the Respondents place reliance on the judgements of the Supreme Court in Vishal Properties Private Limited V/s. State of Uttar Pradesh and Others 3 and State of Odisha and another V/s. Anoop Kumar Senapati and another 4.
24. Before dealing with the submissions of the parties it would be appropriate to refer to the Orders dated 20 th March 2023 and 26th April 2023 passed by this Court. The Order dated 20th March 2023 reads as under:-
1. The issue in the Petition is narrow. The Petitioner seeks the release of an assured subsidy for the export of milk powder. Prayer (b) of the Petition at pages 17 and 18 read thus:
"b. This Hon'ble Court be pleased to issue writ of mandamus or any other appropriate writ, order or direction, directing Respondent No.1 to immediately act upon its order dated 04.03.2022 (Exhibit K) read with report dated 26.05.2022 (Exhibit L) by paying to the Petitioner the amount of Rs.24,87,50,000/- to which the Petitioner is entitled to under Government Resolution dated 3 (2007) 11 SCC 172 4 (2019) SCC 626 Page 12 of 20 Ashvini Narwade ::: Uploaded on - 27/08/2024 ::: Downloaded on - 28/08/2024 02:39:40 ::: wp-11719-2023.doc 31.07.2018 as has been confirmed by order dated 04.03.2022 (Exhibit K), along with interest at the rate of 12% p.a. from the date it became due to the Petitioner till its actual realisation as demonstrated by the table annexed hereto and marked as Exhibit N:"
2. The reference is to a Government Resolution dated 31 st July 2018. This has been confirmed by an order of 4th March 2022. We leave aside the question of interest for the present.
3. There is an Affidavit in Reply filed by the Commissioner, Dairy Development Mumbai on behalf of Respondents Nos. 1 and 2. In paragraph 4, the reference is to a previous order which directed the Principal Secretary, Dairy Development to hear the Petitioners and decide within three months the entitlement of the Petitioner to receive an export subsidy from the State Government. The Affidavit says that the Principal Secretary held the hearing and passed a detailed order on 4th March 2022. This is the order referred to in prayer clause (b) at Exhibit 'K'. But the Affidavit then says that the Finance Department has advised that the matter needs to be placed before the Cabinet for sanction and approval. The Affidavit says the process will take about six months.
4. We understand paragraph 3 but do not follow why Cabinet approval is required since this is in the routine course following an order and which itself is based on a GR, neither of which is disputed.
5. For the present, we direct the State Government to act on the order of 4th March 2022 without delay in regard to the principal amount stated in that order. We leave the question of interest pending for the present. That order is to be implemented and the amount disbursed by 24th April 2023.
6. List the matter on 26th April 2023 for further orders.
(emphasis supplied)
25. By the said Order, the State Government has been directed to act on the Order dated 4th March 2022 by which it was held that the Milk Powder manufacturers, including the Petitioner, were entitled to receive the Export Subsidy as Page 13 of 20 Ashvini Narwade ::: Uploaded on - 27/08/2024 ::: Downloaded on - 28/08/2024 02:39:40 ::: wp-11719-2023.doc per the Government Resolution dated 31 st July 2018. The argument, that any cabinet approval would be required, was rejected by the Court.
26. Thereafter, as stated hereinabove, Order dated 26 th April 2023 was passed by this Court on the Application filed by the State Government seeking extension of time of two months for implementation of the Order dated 20 th March 2023. The said Order dated 26th April 2023 reads as under:-
1. We passed the following order on 20 th March 2023. There is an Interim Application filed by the State Government seeking an extension of two months to comply. It is to be finally numbered. The Interim Application is astonishing, not for what it says, but for what it does not say. Our order of 20 th March 2023 is reproduced below:
"1. The issue in the Petition is narrow. The Petitioner seeks the release of an assured subsidy for the export of milk powder. Prayer (b) of the Petition at pages 17 and 18 read thus:
"b. This Hon'ble Court be pleased to issue writ of mandamus or any other appropriate writ, order or direction, directing Respondent No.1 to immediately act upon its order dated 04.03.2022 (Exhibit K) read with report dated 26.05.2022 (Exhibit L) by paying to the Petitioner the amount of Rs.24,87,50,000/- to which the Petitioner is entitled to under Government Resolution dated 31.07.2018 as has been confirmed by order dated 04.03.2022 (Exhibit K), along with interest at the rate of 12% p.a. from the date it became due to the Petitioner till its actual realisation as demonstrated by the table annexed hereto and marked as Exhibit N:"
2. The reference is to a Government Resolution dated 31 st July 2018. This has been confirmed by an order of 4th March 2022. We leave aside the question of interest for the present.
3. There is an Affidavit in Reply filed by the Commissioner, Dairy Development Mumbai on behalf of Respondents Nos. 1 and 2. In paragraph 4, the reference is to a previous order which Page 14 of 20 Ashvini Narwade ::: Uploaded on - 27/08/2024 ::: Downloaded on - 28/08/2024 02:39:40 ::: wp-11719-2023.doc directed the Principal Secretary, Dairy Development to hear the Petitioners and decide within three months the entitlement of the Petitioner to receive an export subsidy from the State Government. The Affidavit says that the Principal Secretary held the hearing and passed a detailed order on 4 th March 2022. This is the order referred to in prayer clause (b) at Exhibit 'K'. But the Affidavit then says that the Finance Department has advised that the matter needs to be placed before the Cabinet for sanction and approval. The Affidavit says the process will take about six months.
4. We understand paragraph 3 but do not follow why Cabinet approval is required since this is in the routine course following an order and which itself is based on a GR, neither of which is disputed.
5. For the present, we direct the State Government to act on the order of 4th March 2022 without delay in regard to the principal amount stated in that order. We leave the question of interest pending for the present. That order is to be implemented and the amount disbursed by 24th April 2023.
6. List the matter on 26th April 2023 for further orders.
2. Exhibit "K" to the Petition at page 67 is a detailed order of 13 pages by none other than the Principal Secretary, Dairy Department accepting the basis of the Petitioner's claim. This was an order of 4th March 2022 and we have referred to it in our order of 20th March 2023. On 24 th March 2022, the Dairy Development Department, following the order of the Principal Secretary of 4th March 2022 computed exactly the amount that is payable.
3. The Interim Application is short and is worth reproducing in full. This is what it says:
"1. In the above matter, by Order dated 20.3.2023, this Hon'ble Court has directed the State Government to act on order of 4.3.2022 without delay and pay the principle amount before on or before 24.4.2023. The Hon'ble Court also leave the question of interest pending for the present. Copy of the Order dated 20.3.2023 is hereto annexed and marked as Exhibit '1'.
2. As per the direction given by Hon'ble Court necessary proposal had been moved to finance department. However finance department advised to examine and calculate admissible dues avoiding financial irregularities and duplicity of payment. Accordingly, reports were called from Commissioner, Dairy Department and submitted the proposal again to finance department on 20/4/2023. Therefore the file is now with finance department for final approval. Finance department has Page 15 of 20 Ashvini Narwade ::: Uploaded on - 27/08/2024 ::: Downloaded on - 28/08/2024 02:39:40 ::: wp-11719-2023.doc requested to take some extension of time from Hon'ble Court.
3. In the above facts, considering the finance department's abovementioned advice, State Government had requested by sending letter dated 5.4.2023 to Government Pleader, to request Hon'ble High Court, Mumbai to grant two months of time. Hereto annexed and marked Exhibit '2' is the copy of letter dated 5.4.2023.
4. If the finance department approve the file, two months of time will be required for disbursement of admissible amount as proposal also requires approval for re-appropriation of funds from one budget head to concern budget head.
5. Therefore, the State Government wants time of two months more for the implementation of order dated 20.3.2023 of this Hon'ble Court.
6. It is therefore, prayed that, a. The time granted to the Applicant to comply the Order dated 20.3.2023 for disbursement the amount be extended by two months more from the date of Order in this Application.
b. Such further reliefs as may be necessary, be granted in favour of the Applicant.
c. Costs of this Application be provided for."
4. We are fully unable to understand how the Finance Department can purport to sit in Appeal over Principal Secretary, Dairy Development. We trust that the Finance Department is not saying that it has the authority to sit in appeal over a Division Bench of this Court, or for that matter any Judge of this Court. Yet that is precisely what seems to be suggested because paragraph 4 of the Interim Applications says that if the Finance Department approves the file then two months is required for a disbursement. There is no if. There is no but. The Finance Department is not authorise to decide whether or not to approve the file, whatever that is supposed to mean. The Finance Department is supposed to clear a file within the time permitted by the Court and act in accordance with orders of this Court. The application for an extension of two months is rejected. Payment will be made in accordance with our 20 th March 2023 order and in terms of the amounts at Exhibit "L" at page 81 of the Petition no later than by 10th May 2023. If that is not done, we will proceed to enforce our order if necessary in contempt."
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27. From the said Order dated 26 th April 2023 it can be seen that the Application for extension was rejected and the Court held that, once an Order had been passed by this Court, the finance department had no authority to decide whether to approve any file.
28. Thus, it is seen that by the said two Orders dated 20 th March 2023 and 26th April 2023 what is now sought to be contended by the Respondents has been rejected by this Court. These two Orders of this Court are valid and subsisting and hold the field. Moreover, Respondent No.1 has in fact implemented the said Order and has made payment of the entire amount of Export Subsidy to Indapur.
29. In these circumstances, we are of the view that, if the same relief is not granted to the Petitioner, which is identically situated to Indapur, on the basis of the contentions sought to be urged by the Respondents, firstly it would amount to doubting solemn Orders passed by this Court and implemented by the Respondents, which is not permissible in law. Secondly, once Indapur, which is identically situated to the Petitioner, has been paid the Export Subsidy, it would be violative of Article 14 of the Constitution of India if the Petitioner, being identically situated, is not paid the same subsidy, as it would amount to persons identically situated being treated differently, which goes against the very principles of Article 14 of the Constitution. We Page 17 of 20 Ashvini Narwade ::: Uploaded on - 27/08/2024 ::: Downloaded on - 28/08/2024 02:39:40 ::: wp-11719-2023.doc may observe that once a party like Indapur, who was similarly placed like the Petitioner, was in receipt of such subsidy, which is certainly in the nature of a State largesse, all attributes of reasonableness and fairness emanating from Article 14 of the Constitution of India would stare at the Respondents in similar treatment to be meted out to a person like the Petitioner who was identically placed. A different treatment being meted to the Petitioner would result in breach of the basic rights of the Petitioner of non-discrimination guaranteed to the Petitioner under Article 14 of the Constitution. The subsidy scheme in question is a welfare scheme and which was fully implemented and acted upon in the case of Indapur. Thus, no technical argument would prevent this Court from recognizing such Constitutional rights as conferred on the Petitioner as also recognized by the Scheme.
30. So far as the judgements of the Supreme Court in the case of Vishal Properties Private Limited (supra) and State of Odisha and another (supra) relied upon by the Respondents in the context of negative equality are concerned, they lay down the proposition that Article 14 is not meant to perpetuate an illegality. They further lay down that Article 14 provides for positive equality and not negative equality and the Courts are not bound to direct any authority to repeat any wrong action done by it earlier.
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31. In our view, there can be no dispute about the proposition of law laid down in these judgements. However, these two judgements are squarely distinguishable on facts in the present case. In the present case, on identical facts, this Court has directed release of payment of Export Subsidy to Indapur. This Court has done so on the basis that Indapur was legally entitled to the same and that there was no illegality involved in making payment of the said Export Subsidy to Indapur. Therefore, the question, of any illegality or negative equality, does not arise in the present case. Further, in these circumstances, till the said Orders of this Court hold the field, there is no question of directing any authority to repeat any wrong action done by it earlier. As held above, this Court has directed release of payment of export subsidy to Indapur on the basis that Indapur was legally entitled to the same.
32. In the light of the aforesaid discussion, and for the aforesaid reasons, we pass the following orders:
(a) The Respondents are directed to release in favour of the Petitioner the export subsidy amount of Rs.8,08,50,000/- within a period of six weeks from the date of this order.
(b) The Rule is made absolute in the aforesaid terms.
(c) In the facts and circumstances of the case, there shall be no order as to costs.Page 19 of 20
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(d) In so far as the claim of the Petitioner for interest is concerned, we keep open all contentions of the parties to be agitated in appropriate proceedings. Needless to observe that the Petitioner is free to make a representation to the appropriate authority with regard to the interest amount, which, if made, shall be appropriately considered in accordance with law.
(e) At this stage, Ms. Vyas, learned Additional Government Pleader seeks a stay of the Order. However, considering the fact that the Petitioner is deprived of its money for a period of six years, in our opinion, the request ought not to be considered. It is accordingly rejected.
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