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TMI Blog2016 (2) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ad entered into an agreement with the Corporation on 04.08.2004 (Annexure P8) wherein he had taken the benefit of the low rate of interest and offered to pay within the time frame of the policy. In pursuance of the said agreement, the arbitration proceedings pertaining to the buy-back agreement were also terminated by placing the agreement on record and therefore, the Corporation also gave up its claim regarding the amounts due under the FCA, vide order dated 18.08.2004 (Annexure P9) passed by the Arbitrator. In pursuance of the agreement, further payments were made by the petitioner and it is not disputed that a sum of ₹ 96,94,094/- has been paid but was not acted upon. The Corporation cannot be allowed to blow hot and cold at the same time and could not withdraw from the concluded contract. The petitioner had also chosen to litigate and approached this Court seeking direction for transfer of shares on pro-rata basis, as per the agreement which provided that on the receipt of minimum payment of ₹ 20 lacs transfer would be made as per the OTS value of the shares, as calculated upto the date of transfer of shares. The Corporation had also agreed that in case the amounts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State since the writ petition was disposed of that the Corporation would take appropriate decisions in view of the modified policy. The petitioners were also left free to seek appropriate redressal in case adverse decision was taken and the petitioners were also given liberty to challenge the notification. Thus, the Division Bench has not opined on the said issue and it was a policy decision of the State as such. Consequently, issue no. is answered against the State and the Corporation. - CWP No.8338 of 2009 - - - Dated:- 23-12-2015 - MR. AJAY KUMAR MITTAL AND MR. G.S. SANDHAWALIA, JJ. For The Petitoner : Mr. Ashwani Kumar Chopra, Sr. Advocate with Ms. Rupa Pathania, Advocate, Mr.Sanjeev Sharma, Sr.Advocate, with Mr.Shekhar Verma, Advocate, and Ms.Bhavna Joshi, Advocate, Mr.Chetan Mittal, Sr.Advocate, with Mr.Puneet Gupta, Advocate, and Mr.Rahul Sharma-I, Advocate, Mr. Suvineet Sharma, Advocate, Mr.Gaurav Goel, Advocate and Ms.Salina Chalana, Advocate, Mr. Krishan M.Vohra, Advocate for Mr. Sumeet Goel, Advocate, Mr. Sanjiv Singh Thakur, Advocate for Mr. Sanjiv Bansal, Advocate for For The Respondent : Mr. Parveen Gupta, Advocate and Mr. Sanjeev Trikha, Advocate, Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporation had decided to unilaterally withdraw the OTS agreement dated 04.08.2004 (Annexure P8) under which the petitioner had already paid the entire amount due on 18.06.2007. A further prayer of a writ in the nature of mandamus, directing the respondent-Corporation to transfer its equity shares holding in M/s Indian Yarn to the petitioner and its nominees was prayed for. 4. The following three questions emerge for consideration of this Court: (i) Whether the State was permitted to alter the terms of the OTS on the ground that it being a public policy, could be modified? (ii) If question no. (i) is answered in favour of the State, whether the said decision could be with retrospective effect in the absence of any statutory provision? (iii) Whether the State and the Corporation are bound by the principle of promissory estoppel and can go back on the terms of the OTS agreement which had been duly acted upon by the petitioner by materially altering its position? 5. For deciding the above legal issues, reference to the pleaded facts of the case will be necessary. 6. The plague of terrorism which had struck the State of Punjab in the 1990's had occasioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the year 2003 to enter into the OTS with the collaborators by reducing the penal interest provided in the FCA. Resultantly, the Industrial Policy of 2003 was notified on 26.03.2003 (Annexure P3) wherein the OTS policy to facilitate the disinvestment in promoted companies was initiated. As per Clause 9.3.3, the OTS was to come into play for facilitating the equity disinvestment even in those cases where arbitration proceedings had already started. Interest was to be charged @ 10% simple rate of interest irrespective of the status of the unit, subject to various conditions. The policy reads as under: The Governor of Punjab is pleased to formulate 'Industrial Policy-2003' to facilitate the development of industry in the State of Punjab, as contained in Chapters 1 to 12 herein under: CHAPTER-9 REDEFINING ROLE OF PSIDC, PFC AND PSIEC 9. Following steps will be taken:- 9.1 Re-capitalisaton of PSIDC and PFC for their future role. 9.2 Amalgamation of the following roles under one roof:- infrastructure Development One stop banking including appraisals, insurance, merchant banking Seed/venture capital funds in specific in sun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n no rebate is offered. However, further simple interest @ 12.5% p.a. shall be charged on reducing amount till the date of full payment or one year whichever is earlier. iv) In case, the payment is made after one year then the compound interest @ 12.5% p.a. shall be charged on reducing amount. However, even in this option, the entire payment has to be completed within 2 years of accepting the offer. d) The entire buy back is to be completed within two (02) years from the date of acceptance. In case the collaborator fails to complete the buy back during the said period, then the buy back shall be governed by the provisions of the FCA and the amount already received shall be adjusted against the interest. e) The shares shall be transferred only after the entire amount is received and buy back concluded thereof. f) The above scheme shall be in operation till 31st May 2003 for the purpose of exercising an option. g) The rate of interest under One Time Settlement Policy for facilitating equity disinvestments in the companies promoted by Punjab Government Undertakings located in the Border districts will be 8% instead of 10%. The period for availing OTS for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r annum till the date of payment, was made. The petitioner wrote on 29.11.2006 (Annexure P18) for conveying the amount due so that he could make arrangement for paying the entire dues. Thereafter, he paid by way of cheque, a sum of ₹ 25 lacs vide letter dated 06.04.2007 (Annexure P20) and asked for the transfer of additional one lac shares against the said payment in the name of one M/s Priyamanu Finance Investment Pvt. Ltd. on the ground that total payment had been made to the tune of ₹ 96,94,096/-. Thereafter, on 18.06.2007 (Annexure P21), a sum of ₹ 21.10 lacs was paid through cheque, bringing the total payment to the tune of ₹ 9,63,42,000/- and the whole payment as per the OTS was paid, as per the calculations of the petitioner. Still the shares were not transferred to the petitioner inspite of the request made on 19.06.2007 (Annexure P22). 11. It is also a matter of judicial record that on 22.05.2006, CWP No.8592 of 2006 titled Sarabjit Singh Vs. State of Punjab others, was filed, as a Public Interest Litigation. The plea taken was that the Corporation had entered into OTS where even profit making companies were being granted the said benefit and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deem it just and appropriate to direct the respondentcorporation to transfer the shares by obtaining appropriate undertaking from the petitioner. In case, any order is passed by this Court in Public Interest Litigation initiated in C.W.P. No.8592 of 2006, the petitioner shall remain bound by all the directions and that the collaborators will not create any third party right on transfer of the shares. List again on 18-2-2008. 13. The interim order was passed on 03.03.2008, directing the Corporation to transfer the equity shares immediately held by the respondent-Corporation of M/s Indian Yarn Ltd. to the petitioner subject to the decision of the writ petition. The said order was challenged by filing Special Leave to Appeal (Civil) No.8630 of 2008 and interim injunction was passed regarding re-transfer of the shares till further orders on 15.04.2008 but liberty was granted to the High Court to dispose of the writ petition. Thereafter, the impugned notification came in force on 06.02.2009 wherein the benefit of the OTS was withdrawn to the profit making companies and the OTS offer given earlier to the petitioner, was withdrawn, which is now the subject matter of challenge. The s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the profit making companies run by collaborators/promoters. Reference was made to the objections raised by the Comptroller Auditor General of India that the scheme lacked financial prudence. There was no criteria laid down regarding the performance/working results of the units to judge the genuineness of the default and ignoring the distinction between genuine and wilful defaulters. A financial loss was being caused to the Corporation and a tendency to encourage the promoters/collaborators to resort to wilful default for availing the benefit of OTS would come into play. The object of the OTS was not being achieved. Reference was also made to the public interest litigation which had been filed in Sarabjit Singh's case (supra) and the decision being a financial policy, could not be subject matter of challenge under Article 227 of the Constitution of India. The petitioner had executed an FCA and had to buy-back the shares after the expiry of 5 years which was intentionally not bought back. There was a wilful default and blocking of public money which was to be circulated for the industrial development of the State. The floating of the OTS was admitted but it lacked financial pru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R2/1) wherein the petitioner was asked to vacate the office of the Managing Director on account of his failure to act upon the buy-back agreement. The Corporation had no option but to initiate arbitration proceedings on the failure of the petitioner to honour its obligation under the FCA. Only when the petitioner was asked to vacate the office of the Managing Director, he availed the OTS. The factum of raising funds from third parties was denied and it was admitted that the OTS was signed on 04.08.2004, though the cut-off date was 30.06.2004. The Board had taken a decision on 24.03.2005, requiring the collaborators to enter into a supplementary agreement as per the OTS policy and the said action had not been challenged. The payments had not been made on account of the dilatory tactics to avoid discharging the legal obligation. Reference was made to the report of the Comptroller Auditor General of India and the PIL filed before this Court and the decision of the Council of Ministers dated 02.12.2008 to withdraw the OTS. The said PIL had been disposed of in view of the notification dated 06.02.2009 and the collaborators had paid less than half of the amount which they were supposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The modification was, accordingly, done to restrict the said benefit to only those companies who were not profit making. Limiting the applicability of the concession to the promoters/collaborators of the companies who were not making profit was apparently well intentioned. Counsel for the State and the Corporation were, thus, well justified in projecting that a wrong decision could always be corrected and on account of the economic harm being caused to the State on the wrong drafting of the policy which came under judicial scrutiny also. 19. Under Article 135 of the Articles of Association of the respondent-Corporation, the Government has the power to issue directions which it may consider necessary in the matter of broad policy and could vary any directive which was to be given immediate effect. Article 135 reads thus:- Article 135 of the Articles of Association of Punjab State Industrial Development Corporation Limited Notwithstanding anything contained in any of the Articles, the Government may, from time to time, issue such directives as they may consider necessary in matters of broad policy and in like manner may vary and annul any such directive. The company s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finished product. Refund could be allowed if tax paid was in excess of amount due. An agreement or even a notification or order permitting refund of sales tax which was due shall be contrary to the statute. To illustrate it the appellant claimed refund of sales tax paid by it to the State Government of sale made by it of its finished products. But the tax paid is not an amount spent by the appellant but realised on sale by it. What is deposited under this head is tax which is otherwise due under provisions of the Act. Return of refund of its or its equivalent, irrespective of from is repayment or refund of sales tax. This would be contrary to Constitution. Any agreement for such refund being contrary to public policy was void under Section 23 of Contract Act. The constitutional requirements of levy of tax being for the welfare of the society and not for a specific individual the agreement or promise made by the government was in contravention of public purpose thus violative of public policy. No legal relationship could have arisen by operation of promissory estoppel as it was contrary both to the Constitution and the law. Realisation of tax through State mechanism for sake of payi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pending the collection of customs duty. It does not make items which are subject to levy of customs duty etc. as items not leviable to such duty. It only suspends the levy and collection of customs duty, etc., wholly or partially and subject to such conditions as may be laid down in the notification by the Government in public interest . Such an exemption by its very nature is susceptible of being revoked or modified or subjected to other conditions. The supersession or revocation of an exemption notification in the public interest is an exercise of the statutory power of the State under the law itself as is obvious from the language of Section 25 of the Act. Under the General Clauses Act an authority which has the power to issue a notification has the undoubted power to rescind or modify the notification in a like manner. From the very nature of power of exemption granted to the Government under Section 25 of the Act, it follows that the same is with a view to enabling the Government to regulate, control and promote the industries and industrial production in the country. Notification No. 66 of 1979 in our opinion, was not designed or issued to induce the appellants to import P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ints, the Court would not enter into this arena of public policy. Relevant observations read as under: 20. Now we revert to the last submission, whether the new State policy is justified in not reimbursing an employee, his full medical expenses incurred on such treatment, if incurred in any hospital in India not being a Government hospital in Punjab. Question is whether the new policy which is restricted by the financial constraints of the State to the rates in AIIMS would be in violation of Article 21 of the Constitution of India. So far as questioning the validity of governmental policy is concerned in our view it is not normally within the domain of any court, to weigh the pros and cons of the policy or to scrutinize it and test the degree of its beneficial or equitable disposition for the purpose of varying modifying or annulling it, based on however sound and good reasoning, except where it is arbitrary or violative of any constitutional, statutory or any other provision of law. When Government forms its policy, it is based on number of circumstances on facts, law including constraints based on its resources. It is also based on expert opinion. it would be dangerous if co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no longer be so. The Government has taken a policy decision that it is in public interest to disinvest in BALCO. An elaborate process has been undergone and majority shares sold. It cannot be said that public funds have been frittered away. In this process, the change in the character of the company cannot be validly impugned. While it was a policy decision to start BALCO as a company owned by the Government, it is as a change of policy that disinvestment has now taken place. If the initial decision could not be validly challenged on the same parity of reasoning, the decision to disinvest also cannot be impugned without showing that it is against any law or mala fide. 25. In Howrah Municipal Corporation others Vs. Ganges Rope Co. Ltd. others 2004 (1) SCC 663 , the grant of sanction for construction of three additional floors to a multi-storey complex was set aside and the decision of the Single Bench was restored on the ground that there was no vested right in favour of the company to seek sanction once there was a restriction of the high rise building on the GT road. In the absence of any vested right or settled expectations, the same could not be constructed again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the country are concerned or where the business affects the economy of the country. 27. Similarly, in Indian Financial Assn. of Seventh Day Adventists Vs. M.A. Unneerikutty (2006) 6 SCC 351 , the Apex Court held that the public policy does not remain static and if the agreement is opposed to a public policy, the same could not be enforced. 28. In Villianur Iyarkkai Padukappa Maiyam Vs. Union of India others 2009 (7) SCC 561 , again a Three Judges Bench of the Apex Court held that the scope of interference in public policies is very limited. The Court's interference with the economic decisions and power to examine the relative merits of the different economic policies was beyond its domain. The issue pertained to the development of the port of Pondicherry and the decision of handing over the movable and immovable assets to the privaterespondent, in pursuance of the concession agreement entered into by the Government of Pondicherry. It was, accordingly, held that the said decision was a matter of public policy and even a change in Government could result in shifting focus on change of economic policy which would adversely affect some vested interest. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose to do so if it thinks fit and in a given situation it may turn out to be advantageous for the State to do so, but if any private party comes before the State and offers to develop the port, the State would not be committing breach of any constitutional obligation if it negotiates with such a party and agrees to provide resources and other facilities for the purpose of development of the port. The State is not obliged to tell the respondent No. 11 please wait I will first advertise, see whether any other offers are forthcoming and then after considering all offers, decide whether I should get the port developed through you . It would be most unrealistic to insist on such a procedure, particularly, in an area like Pondicherry, which on account of historical, political and other reasons, is not yet industrially developed and where entrepreneurs have to be offered attractive terms in order to persuade them to set up industries. The State must be free in such a case to negotiate with a private entrepreneur with a view to inducing him to develop the port and if the State enters into a contract with such an entrepreneur for providing resources and other facilities for developing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation so as to create a disability to the person who, in response to the same, has already completed the transaction. In Sri Vijayalakshmi Rice Mills, New Contractors Co. etc. vs. State of Andhra Pradesh, 1976 (3) SCR 775 a three-Judge Bench of the Apex Court held that a notification takes effect from the date it is issued and not from any prior date. The issue in question was the price of supplies of rice made under the Andhra Pradesh Rice Price Control (Third Amendment) Order, 1964. The millers were asking for the price in view of the amendment made in the schedule which was allowed by the Civil Courts. The benefit of the difference between the control price specified in the Control Order, 1963 and the Control Order, 1964 was granted. The High Court allowed the appeals which led to the matter being taken to the Apex Court and the view taken by the High Court was upheld and it was held as under:- 5. Mr. Nariman appearing on behalf of the appellants has laid great emphasis on the word substituted occurring in clause 2 of the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964 and has urged that the claim of the appellants cannot be validity ignored Elabor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation that is relevant and not the date of publication in a newspaper or in the media (See Pankaj Jain Agencies v. Union of India [1994 (5) S.C.C.198) . In other words, the publication of an order or rule is the official irrefutable affirmation that a particular order or rule is made, is made on a particular day (where the order or rule takes effect from the date of its publication) and is made by a particular authority; it is also the official version of the order or rule. It is a common practice in courts to refer to the Gazette whenever there is a doubt about the language of, or punctuation in, an Act, Rule or Order. Section 83 of the Evidence Act says that the court shall presume the genuineness of the Gazette. Court will take judicial notice of what is published therein, unlike the publication in a newspaper, which has to be proved as a fact as provided in the Evidence Act. If a dispute arises with respect to the precise language or contents of a rule or order, and if such rule or order is not published in the Official Gazette, it would become necessary to refer to the original itself, involving a good amount of inconvenience, delay and unnecessary controversies. It is for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e thereon by a notification in Official Gazette. The said notification can be modified or cancelled. The method and mode provided for grant of exemption or withdrawal of exemption is issuance of notification in the Official Gazette. For bringing Notification into operation, the only requirement of the section is its publication in the Official Gazette and no further publication is contemplated. Additional requirement is that under Section 159 such notification is required to be laid before each House of Parliament for a period of thirty days as prescribed therein. Hence, in our view Mayer Hans George (supra) which is followed in the Pankaj Jain Agencies case represents the correct exposition of law and the Notification under Section 25 of the Customs Act would come into operation as soon as it is published in the Gazette of India i.e. the date of publication of the Gazette. Apart from prescribed requirement under Section 25, usual mode of bringing into operation such notification followed since years in this country is its publication in the Official Gazette and there is no reason to depart from the same by laying down additional requirement. 33. The matter was also examined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision could be revived from time to time and could be withdrawn in public interest. The Board having acted in pursuance to the decision of the State Government, was bound on the question of policy and that the administrative orders were to be ordinarily prospective in nature. A policy decision could not be given prospective or retroactive operation since the accrued right of the appellants would be affected. It was held that for giving retrospective effect, the source of power is to be on the basis of a statutory provision which is to be enacted expressly or by necessary implication. The State had issued directions to the Board and the Board was bound by the same until there were clear intentions of withdrawal, by retrospective effect. In the absence of any clear intentions, the Government order was held to have prospective operation and not retrospective operation. Relevant observations read as under: 18. Tourism was declared to be an industry. The wide range of concessions as noticed hereinbefore, inter alia, covered electricity and water charges. It is not a case where some exemptions or concessions were to be given for a specific period or as a one time measure. No time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired to be given a retrospective operation, it must be stated so expressly or by necessary implication. The authority issuing such direction must have power to do so. The Board, having acted pursuant to the decision of the State, could not have taken a decision which would be violative of such statutory directions. xxxx xxxx xxxx 36. The law which emerges from the above discussion is that the doctrine of promissory estoppel would not be applicable as no foundational fact therefor has been laid down in a case of this nature. The State, however, would be entitled to alter, amend or rescind its policy decision. Such a policy decision, if taken in public interest, should be given effect to. In certain situations, it may have an impact from a retrospective effect but the same by itself would not be sufficient to be struck down on the ground of unreasonableness if the source of power is referable to a statute or statutory provisions. In our constitutional scheme, however, the statute and/or any direction issued thereunder must be presumed to be prospective unless the retrospectivity is indicated either expressly or by necessary implication. It is a principle of rule of law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Petrochemical Industries Co. Ltd. Vs. Electricity Inspector E.T.I.O. others 2007 (5) SCC 447 , the issue arose as to the modification of the notification and it was held that when the State intended to depart from the conditions laid down earlier wherein incentives had been granted to various firms, it was held that the State could not be permitted to alter its stance on furtherance of the representations made by it. 37. In Bharat Sanchar Nigam Ltd. another Vs. BPL Mobile Cellular Ltd. others (2008) 13 SCC 597 , contracts had been entered into by the parties regarding interconnection links provided. It was held that the parties will be bound by the concluded contract and the alteration or modification could not be done by express agreement or by necessary implication and therefore, there could not be any change of tariff in terms of Section 8 of the Indian Contract Act. 38. Adverting to the factual matrix herein, as noticed, the petitioner, in pursuance to the OTS floated by the respondent- Corporation, had entered into an agreement with the Corporation on 04.08.2004 (Annexure P8) wherein he had taken the benefit of the low rate of interest and offered to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. it is not disputed that the said decision making has been approved by the Council of Ministers who had, firstly, by virtue of its decision dated 27.05.2004, given the option of the OTS. By a subsequent Cabinet decision dated 02.12.2008, the withdrawal was being done and therefore, the same would necessarily amount to an approval, with retrospective effect. The said substitution would necessarily have to be read from the date of the notification and could not be given retrospective effect from 26.03.2003. 41. The principle of promissory estoppel upon which the petitioner relies, is based upon the backing out by the Corporation when the petitioner has altered his position materially, especially to the promise which had been held out by the State. The facts have already been noted regarding the petitioner having opted for the OTS and even the Corporation having floated the same agreeing to the terms of the OTS by entering into an agreement and modifying the claim under the FCA. It is the pleaded case of the petitioner that being a Collaborator, he was an independent person against whom the buy-back agreement could have been enforced and which was being done by way of arbitration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted the issuance of the notification. The Government, unable to show any benefit having been passed to the purchasers, it was held that it was inequitable to allow the State Government to resile. 45. In Godfrey Philips (supra), the Three Judges Bench of the Apex Court was considering the issue of Excise duty leviable on cigarettes. It was held that Central Government was bound by the promissory estoppel to exclude the cost of the corrugated fibre board containers from the value of the goods for the purpose of assessment of the excise duty for the specified period as it was in their competence and the respondents had acted upon the said representation. Relevant paragraphs read as under: There can therefore be no doubt that the doctrine of promissory estoppel is applicable against the Government in the exercise of its governmental, public or executive functions and the doctrine of executive necessity or freedom of future executive action cannot be invoked to defeat the applicability of the doctrine of promissory estoppel. We must concede that the subsequent decision of this Court in Jeet Ran v. State of Haryana [1980] 3 S.C.R. 689, takes a slightly different view and hol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... octrine it must yield when the equity so requires, if it can be shown by the Government or public authority that having regard to the facts as they have transpired, it would be inequitable to hold the Government or public authority to the promise or representation made by it, the Court would not raise an equity in favour of the person to whom the promise or representation is made and enforce the promise or representation against the Government or public authority. The doctrine of promissory estoppel would be displaced in such a case, because on the facts, equity would not require that the Government or public authority should be held bound by the promise or representation made by it. This aspect has been dealt with fully in Motilal Sugar Mills case (supra) and we find ourselves wholly in agreement with what has been said in that decision on this point. 46. In U.P. Power Corporation Ltd. Vs. Sant Steels Alloys (P) Ltd. (2008) 2 SCC 777 , the issue of concession of hill development rebate granted was the subject matter of consideration. It was, accordingly, held that once a person had acted upon the representation, the State Government could not resile from the benefits an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hers (2015) 9 SCC 132 , allowed the appeal of the entrepreneur on the ground that the concession granted to tourism industries could be extended. It was held that though the appellants had not commenced commercial operations but the unit could approach the State Government for extension which was part of the scheme. The appellant had altered his position and the State Government would be bound by the principle of promissory estoppel and therefore, the matter was directed to be reconsidered by the State Level Committee as to whether entitlement was there to the incentives and benefits. Relevant portion of the judgment reads as under: 21. Coming to the facts of the present case, we find that the Scheme definitely promised incentives in the form of Tax holiday of 5-10 years in respect of exemptions from Sales Tax, Turnover Tax, Electricity Duty, Luxury Tax and Entertainment Tax upto 100 per cent of capital investment if a new unit was registered after 1.8.1995 and appropriate investment in fixed capital assets was made. It also promised an initial period of two years for going operational in the first instance, extendable by further period of two years subject to satisfactory p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State as such. Consequently, issue no. (iii) is answered against the State and the Corporation. 50. Accordingly, keeping in view the cumulative discussions made above, in our opinion, the State could alter the terms and conditions of the OTS on the ground of public interest. A valid criteria has been made to restrict the OTS to the profit making companies. However, in the absence of any statutory power, the said decision making could not be done with retrospective effect and could only have been limited from the date of notification of the decision. The persons who had altered their position by making payment in pursuance of the OTS, could not be denied the final fruits of the concluded contract of the agreement entered into after they had made payments, as per the OTS. The said decision could not have been taken with retroactive effect and the State and the Corporation are bound by the principle of promissory estoppel. 51. As a necessary corollary, the present writ petitions and LPA No.1635 of 2010, are disposed of, with a direction to the Corporation to give the necessary effect to the OTS, in the cases where the petitioner had made the payments, in pursuance of the OTS an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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