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TMI Blog2011 (4) TMI 1242X X X X Extracts X X X X X X X X Extracts X X X X ..... ny mandamus. It is not even the case of the petitioner that any individual extensions were granted by the State. Petition dismissed. - Special Civil Application No. 11278 of 2010 - - - Dated:- 15-4-2011 - AKIL KURESHI AND SONIA GOKANI (MS.), JJ. For the Appellant : KS Nanavati Senior Advocate for M/s. Nanavati Associates, For the Respondents : Kamal Trivedi, Advocate-General with Ms. Sangeeta Vishin, Additional Government Pleader, JUDGMENT :- The judgment of the court was delivered by AKIL KURESHI J.- The petitioner is before this court praying for quashing an order dated May 18, 2010, passed by the committee for resolution of disputes declining the request of the petitioner to grant tax exemptions under the scheme formulated by the State Government under its resolution dated November 9, 2001. The petitioner has also challenged the communication dated March 14, 2011 of the State Government rejecting such a request. By way of consequential direction, the petitioner has prayed for a mandamus to the respondents to extend the benefit of the said Incentive Scheme of 2001, after condoning delay in commencement of commercial production by the petitioner. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the State Government vide its resolution dated September 13, 2004 up to December 31, 2004, and for industries which were in pipeline, the date for commencement of commercial production was extended from May 31, 2005; as envisaged in the Incentive Scheme of 2001, to December 31, 2006. One more extension was granted by the State Government vide its resolution dated January 7, 2005. The scheme itself was extended up to December 31, 2005 and for the pipeline industries, the deadline for commencement of commercial production was extended up to December 31, 2007. It is not in dispute that after the above-mentioned resolution dated January 7, 2005, there was no general extension provided by the State Government. In effect, therefore, the scheme came to an end on December 31, 2005, and for the pipeline industries, the last date for commencing the commercial production ended on December 31, 2007. The petitioner's case is that in the year 2005, there was a memorandum of understanding entered into between the GACL of Sumeru Group; which is represented in the present petition and the State Government, whereby, it was agreed that there would be further substantial investment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tomatically mean that Government is responsible to provide all the facilities. It is the responsibility of company to obtain clearance/permissions from various Government Departments. Since the contention of the petitioner was that not the committee but the State Government is authorized to decide the request of the petitioner, a separate further order was passed by the State Government on March 14, 2011 which has also been produced on record and challenged in this petition by way of an amendment. The State Government rejected the prayer of the petitioner on the following grounds: (1) The State Government has perused the representation dated February 25, 2008, addressed to the Industries Commissioner and dated March 19, 2010, addressed to the State Level Committee. (2) As per the scheme, the unit has to start commercial production before December 31, 2005, however, the units which could not start production on or before December 31, 2005, the Government has extended the scheme up to December 31, 2007 which fulfils certain conditions as a pipeline case. This unit has started commercial production on March 26, 2009 which is after the lapse of 15 months from the extended pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 36, wherein, the apex court, in context of the power of the Magistrate under section 133 of the Criminal Procedure Code for removal of nuisance observed that, . . . All power is a trust-that we are accountable for its exercise-that, from the people, and for the people, all springs and all must exist. (2) In case of A.P Aggarwal v. Government of NCT of Delhi reported in [2001] 1 SCC 600, wherein, the apex court observed that even if the instructions contained in the office memorandum are discretionary and not mandatory, such discretion is coupled with the duty to act in a manner which will promote the object for which the power is conferred. (3) In case of Hitech Electrothermics and Hydropower Ltd. v. State of Kerala reported in [2003] 129 STC 464 (SC); [2003] 2 SCC 716, wherein, finding that though the industry had made all other arrangements to start production yet there was inaction on the part of the Electricity Board in providing power to the industry, the apex court having regard to the circumstances of the case and bearing in mind the industrial policy of the Government, granted relief of concessional tariff or the power for a period of three years instead of five yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given by the respondentauthorities, the court directed granting of full benefit of exemption/ remission of electricity duty to the petitioner for the entire period in question. (6) In case of State of Bihar v. Kalyanpur Cements Ltd. [2010] 28 VST 1 (SC); [2010] 3 SCC 274, wherein, the apex court discussed the law on doctrine of promissory estoppel. In the facts of the case, the apex court held that the State Government could not be allowed to rely on its own lapses in implementing its policy. Counsel also relied on Division Bench judgment dated April 22, 2008 (Essar Oil Ltd. v. State of Gujarat [2012] 48 VST 7 (Guj) in Special Civil Application No. 24233 of 2007) wherein, the benefit of an incentive scheme was extended in case of the petitioner when it was found that due to court proceedings, production could not commence within the time envisaged under the scheme. On the other hand learned Advocate-General appearing for the State opposed the petition contending that the petitioner could not commence commercial production within the extended period under the scheme. The entire project took more than 10 years in setting up. The State and its authorities were not responsible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght, which entitles him to any of the rights and that such right has been infringed. In other words, existence of a legal right of a citizen and performance of any corresponding legal duty by the State or any public authority, could be enforced by issuance of a writs of mandamus. 'Mandamus' means a command. It differs from the writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed. Mandamus is a command issued to direct any person, corporation, inferior courts or Government, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of public duty. A mandamus is available against any public authority including administrative and local bodies, and it would lie to any person who is under a duty imposed by a statute or by the common law to do a particular act. In order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition (Kalyan Singh v. Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the apex court confirmed the view of the Division Bench which had held that the petitioner was not entitled to duty exemptions on the ground that commercial production had not started within the time framed. (7) In case of Bakul Cashew Co. v. Sales Tax Officer, Quilon reported in [1986] 62 STC 122 (SC); [1986] 159 ITR 565 (SC); [1986] 2 SCC 365, wherein, in the context of doctrine of promissory estoppel, the apex court observed that. . . . In cases of this nature the evidence of representation should be clear and unambiguous. It 'must be certain to every intent'. The statements that are made by ministers at such meetings, such as, 'let us see', 'we shall consider the question of granting of exemption sympathetically', 'we shall get the matter examined', 'you have a good case for exemption', etc., even if true, cannot form the basis for a plea of estoppel. From the material on record as well as contentions raised by the counsel for the parties, we find that essentially, two issues arise for our consideration. First question is whether on the principles of promissory estoppel, the petitioner is entitled to extension of time for commen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of industries. It is also stated that in view of extremely slow progress and impediments at the State Government level and total lack of infrastructural facilities in the areas like power, roads, water, etc., the petitioner would have given up the project but for the solemn promise held out by the State Government to provide these facilities by signing MOU on February 12, 2005. We have perused the said MOU. We do not find that any unequivocal promise was given to provide for all necessary facilities or to provide for infrastructural facilities to enable the petitioner to complete the project and to commence its commercial production. In fact, what is stated in the MOU is that the petitioner desired to make substantial investments in a cement plant at village-Mohadi, TalukaLakhpat of District-Kutch and the Government would facilitate the group to obtain necessary permissions/registrations from the concerned Departments of the State and Central Government and would also help to avail of incentives under the various schemes announced by the State/Central Government. It is also stated that the State Government would also assist in providing basic infrastructural facilities lik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . As already noted, the main thrust of the argument of the petitioner was that the Government had the power to extend the deadline in appropriate cases. When the Government did not exercise such a power in the case of the petitioner, the same would amount to refusal to exercise discretion vested in the authority which would give rise to a justiciable cause. We, however, find that the petitioner's project was envisaged way back in the year 1999. At that time, though the local backward area exemptions were available, the earthquake in Kutch region had not yet taken place, the Government scheme post-earthquake giving exemptions to encourage investment in the region did not exist. However, even after the post-earthquake exemption notifications were issued, for long many years, the petitioner could not set up the plant and could not commence the commercial production. In the meantime, the scheme was extended twice-in both cases the extension, general in nature and special extensions were available to pipeline cases, i.e., those industries which had already started taking certain initial steps as envisaged in the extensions itself. The petitioner could not complete the project ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in proportion and the eligibility period will be reduced to the extent of delay. However, the units will have the option to avail of the benefit either from the date of commencement of commercial production or from the date of application. (d) If the project of the unit is not completed, the Industries Commissioner/General Manager, District Industries Center shall issue provisional eligibility up to 25 per cent of the eligible amount after considering installation of fixed assets. (e) On completion of the project, the industrial unit shall have to furnish all the details to Industries Commissioner/General Manager, District Industries Center. The fixed assets will be inspected at the location. Clause 8 provides for various conditions for claiming the exemptions. Sub-clause (c) thereto provides that the industrial unit shall have to continue production up to the period of eligibility. However, if the unit does not remain in continuous production on account of the reasons beyond the control of the management, the unit shall present its case before the State Level Committee as an individual case on which the committee can take decision to waive the period of discontinuatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te areas or areas badly affected by the earthquake would not materialize. The timelimit set up in the notification in question, therefore, has to be viewed from this angle. We further find that though the deadline of the scheme was extended twice by the State Government, it was general in nature. Within such extensions also, further extensions were granted to pipeline cases. The petitioner, for one reason or the other, could not commence the commercial production for nearly 10 years from inception. Various reasons have been cited such as non availability of water and electricity; bad road condition, non-availability of environmental clearance and other permissions and so on. However, if one looks closer into the averments on record, it can be seen that there is a large gap in the petitioner's application to the Ministry of Forests and Environment, Central Government and follow-up applications. Be that as it may, we find that for nearly 10 years, the petitioner could not commence its commercial production. It is by now well-settled that to issue a writ of mandamus, there must be existence of a legal right in the petitioner and corresponding legal duty on the respondent. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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