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TMI Blog2016 (5) TMI 1597X X X X Extracts X X X X X X X X Extracts X X X X ..... terest @ 10% per annum. It is declared that the demand of IRC at revised rate i.e. as per decision dated 06.03.2009 from the petitioners is illegal and unsustainable. Said decision dated 06.03.2009 fixes maximum rate of IRC at Rs. One lakh per Hectare prospectively from 01.04.2009 and is not applicable in case of petitioner to whom water allocation is finalized on 12.12.2007. Hence the Respondents shall accordingly receive the IRC at the rate of Rs. 50.000/- per Hectare with interest. Petition allowed in part. - WRIT PETITION NO. 4968 OF 2015 - - - Dated:- 5-5-2016 - B.P. DHARMADHIKARI V.M. DESHPANDE, JJ. For the Petitioner. Shri M.G. Bhangde, Senior Advocate with Shri S.D. Dewani, Advocate For the Respondent Nos. 1 to 3 7. Shri Rohit Deo, Associate General with Mrs. Bharti H. Dangre, GP For the Respondent Nos. 4 to 6. Shri S.G. Jagtap with Shri S.S. Godbole, Advocates JUDGMENT : (PER B.P. DHARMADHIKARI, J.) By this writ petition filed under Article 226 of the Constitution of India, the petitioner seeks a writ in the nature of certiorari and after setting aside adverse orders, a direction to the respondents to apply Irrigation P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner was required to pay its share towards capital contribution and IRC at prevailing charges. The prevailing IRC charges at that time was Rs.50,000/per Hectare. Accordingly, on 16.08.2008, Respondent No. 4 Chief Engineer of Water Resources Department conveyed the decision of allocation of 87.60 MM3 water to the petitioner. However, Respondent No. 5 Executive Engineer demanded IRC at the rate of Rs. One lakh per Hectare for 23218 Hectare. The total demand was of Rs.549.98 crores out of which 232.18 crores represented IRC while balance Rs.317.80 crores were demanded towards capital contribution. The petitioners also claim that Respondent No. 6 Executive Director had on 17.01.2012 sent a letter to Respondent No. 3 Secretary of Command Area Development Authority, pointing out that IRC should have been demanded @ Rs.50,000/per Hectare only. 5. The petitioner thereafter addressed various representations and Respondent No. 1 State and Respondent No. 2 Secretary of Water Resources department passed a resolution on 06.03.2009 fixing maximum rate of IRC at Rs. One lakh per Hectare prospectively from 01.04.2009. The petitioner sent a letter to the Minister for Water ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of personal hearing. Separate communication was sent to Respondent No. 5 disputing the bill raised towards water charges pointing out that water charges could be levied only two years after company started drawing water and also disputing its right to levy interest. On 27.12.2012, Respondent No. 5 informed that Respondent No. 4 was seized of the matter and refuted petitioner's charges that no water charges or interest was payable. The petitioner's claim that on 03.01.2013 it clarified that payments made towards IRC were without prejudice to the petitioner's rights and submissions under law and the representations filed by it. It further stated that interest could be determined once the representations were conclusively decided. On 21.01.2013, the petitioner informed Respondent No. 3 about pending representation. This was repeated on 28.01.2013. 8. The Water Resources Department vide letter dated 29.01.2013, summarily disposed of the petitioner's objections. This disposal has been questioned in present writ petition. 9. We have heard Shri M.G. Bhangde, learned Senior Advocate with Shri S.D. Dewani, learned counsel for the petitioner, Shri Rohit Deo, Associat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.2011 makes reference to IRC rates applied to other similar units. It points out treatment extended to those units complains of discrimination. Instances are of total waiver for NTPC, rate of Rs. 50,000/per hectare to units like Adani Power Maharashtra, Adani GR Power and Reliance Energy Limited. He submits that State Government does not have any uniform policy and IRC has been calculated by using varying norms. Norm of 64 Hectare per cubic meter is applied in case of Tata Power, while norm of 265 Hectare per cubic meter is used in case of IPL. Therefore, the actual rate varies from NIL to 265 crores which is the highest one. In that representation, it has been pointed out that in case of the petitioner, the Chief Engineer, Water Resources Department, on 11.01.2008, has pointed out IRC of Rs.116.09 crores omly as per rate prevailing on th date of water allocation. 13. Our attention has also been drawn to agreement entered into between the petitioner and the respondents on 22.05.2012 to show that the petitioner company agreed to pay Rs.232.18 crores as IRC in five installments over a period of two years with applicable interest but it was subject to decision on representati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso pressed into service to show that in present facts, there is no question of exceeding rate of Rs.50,000/per Hectare. He adds that the rate prevailing, when the water is reserved for the petitioner, is decisive and date of entering agreement has got no bearing. Hence, the later revisionor enhancement on 06.03.2009 with effect from 01.04.2009 cannot be applied retrospectively. 17. Our attention is invited to communication dated 11.01.2008 by which the proposal of the petitioner was submitted for scrutiny to the State Government where rate of Rs.50,000/per Hectare has been applied to 23218 Hectare of land. It is contended that in present matter, the reservation was vide memorandum dated 16.08.2008 and even at that time prevailing rate was Rs.50,000/per Hectare. Hence, stipulation in clause 12 thereof about amount of Rs.232.18 crores as IRC is bad. This error was pointed out on 17.08.2008 but it was not corrected. Had mistake been corrected, the petitioner could have paid the amount or had there been refusal, the petitioner could have come to this Court. The learned Senior Advocate submits that delay in taking decision is an error on the part of the State Government and it canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22. Pointing out the judgment delivered by this Court at Bombay in Writ Petition No. 757 of 2011 on 1st 2nd March 2013, the learned counsel states that there, after considering the rival contentions, the Division Bench has looked into State Water Policy and then in para 27 notices that 202.203 MCM of water is sufficient for irrigating 75000 Hectare of land. He contends that in the light of this observation, when water being supplied is only 87 MCM, there is no reduction in irrigation potential at all. Our attention is also drawn to an affidavit filed by the Executive Director, VIDC in Writ Petition No. 1038 of 2010 which was decided along with a Public Interest Litigation to urge that as disclosed in para 8 thereof by VIDC, the Power Project of the present petitioner does not in any manner hamper the irrigation potential of the region. He, therefore, submits that no IRC can be recovered from the petitioner. 23. Using same equation (proportion), he points out that at the most water lost is 17.60 MCM which could have catered 4600 Hectare. Hence, IRC @ Rs.50,000/per Hectare could have been calculated only for 4600 Hectare of land. Our attention is drawn to a report on Water Plann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n it and three years of time limit is also prescribed. He further states that the petitioner exercised option in relation to not paying capital contribution and agreed to pay water royalty at a higher rate on 25.02.2011. The petitioner never raised any objection from August 2008 till 17.10.2008 and thereafter till 21.05.2011. Shri Deo, learned counsel adds that objection is only about rate and not about area of land in relation to which the calculation needs to be made. He invites our attention to representation dated 01.06.2011 sent by the petitioners where they sought additional time of one year for executing agreement during said period time, government should take decision on the proposal. The proposal was to set aside demand of Rs.232.18 crores. On 08.06.2011, Government extended that time. On 10.05.2012, the petitioner agreed to a conditional agreement and to pay an amount of Rs.232.18 crores in five installments subject to decision on its representation. On 18.05.2012, the petitioner gave two Demand Drafts and then on 25.05.2012, agreement under Article 299 of Constitution of India has been entered. He contends that, therefore, it is not a statutory contract. 28. Separa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed to waive Rs.95 crore as it is Central Government Undertaking. He has submitted that insofar as project Aparna Infra Energy, Chandrapur, is concerned, Chandrapur is not a Water deficit area and proposal was submitted to levy IRC at Rs.50,000/per Hectare in the light of Government Circular dated 21.02.2004. The High Power Committee in its meeting dated 02.07.2008 decided to obtain restoration charges of Rs.309 lakh. The reservation in favour of Aparna Infra Energy is of 6 MCM from Nandreservoir. The allocation of reservation for the petitioner is much more ie 87.60 MCM, that too in water deficit area. The other technical details are also pressed into service by him to urge that the project of the petitioner cannot be compared with the project of Aparna. The prevailing rate of IRC at Rs.50,000/per Hectare has been offered to M/s. Ideal Energy Private Limited when agreement was entered into on 22.09.2008. The projects of Reliance Energy, Shahpur; Ispat Power Project, Pen and Tata Power, Pen (all in Raigarh district) were required to be cancelled as nonirrigation agreement was not executed within the prescribed time. He has relied heavily upon facts disclosed in paras 16 and 17 of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs. vs. State of Bihar Ors., reported at (1997) 3 SCC 457. 34. The judgment in the case of M/s. Mahabir Jute Mills Ltd., Gorakhpore vs. Shri Shibban Lal Saxena Ors., reported at (1975) 2 SCC 818, is pressed into service to urge that while considering the representation of present nature, it is not necessary to record the reasons. The adjudication of petitioner's representation does not give any fresh cause of action as representation is not statutory in nature. To buttress this submission, he relies upon the judgment in the case of Union of India Ors. vs. M.K. Sarkar, reported at (2010) 2 SCC 59. The judgment in the case of Union of India Ors. vs. E.G. Nambudiri, reported at (1991) 3 SCC 38, is relied upon by him to urge that in such matters, the petitioner cannot insist for reasons. 35. Shri Deo, learned Associate Advocate General, submits that, at worst, only one instance to support alleged unequal treatment has been pointed out by the petitioner. He relies upon the judgment in the case of Gurucharan Singh vs. New Delhi Municipal Committee, reported at AIR 1996 SC 1175; Chandigarh Administration vs. Jagjit Singh, reported at AIR 1995 SC 705; Shanti Sports vs. Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Resources Regulatory Authority Act, 2005. The water policy of State Government and grant of water to the petitioner is deemed to be under Section 31B. He further points out that dispute about IRC is at threshold of contract i.e. before entering into contract and not a subject matter or aspect of contract, hence, different principles apply. He draws support from the judgment in the case of Radhakrishna Agarwal v. State of Bihar, reported at (1977) 3 SCC 457, (para 10) for said purpose. He adds that imposition of a condition contrary to Water Policy while entering into contract itself is bad. While explaining absence of pleading on area dispute , he points out that the representation has not been looked into and, therefore, it was not necessary to raise any plea in that respect. He further states that in representation dated 21.01.2013, after High Court judgment, this point has been raised and it has been replied to by the respondents in their reply before this Court vide paras 12, 13 and 14. He also submits that no prejudice is caused to the petitioner in absence of such a plea because extent of area affected is a matter of record and all material relevant thereto is undisputed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 76. 42. He relies upon the judgment in the case of State of Orissa v. Bhagyadhar Dash, reported at (2011) 7 SCC 406, to urge that in such facts and circumstances, Article 226 of the Constitution of India, is always open. 43. The affidavit in reply particularly para 16 is relied upon to show the impact of payment made by the petitioner. He contends that when project was over in 2005 itself, subsequent developments or improvements made in services thereafter cannot have any bearing in the matter. He argues that the respondents have travelled outside the report of experts and water policy. He further submits that the effort of the respondents is to change the norm for calculating IRC. 44. The judgment in the case of State of Karnataka vs. All India Manufacturers Organisation, reported at (2006) 4 SCC 683, para 60 is relied upon by him to urge that State has to act reasonably in contractual matters. The judgment in the case of Reliance Energy Ltd. vs. Maharashtra State Road Development Corporation Ltd., reported at (2007) 8 SCC 1, is relied upon by him to para 36 along with judgment in the case of Meerut Development Authority vs. Association of Management Studies, reported at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference number to be accorded to demands for water, dependency upon its user. Domestic user, has been placed at Sr.No. 1, Industrial user has been placed at Sr.No. 2, while irrigation has been placed at Sr.No. 3. This government resolution at its page No. 19, vide clause No. 13 mentions that the expenditure to restore the land irrigation capacity should be computed at Rs. 50,000/per Hectare. Vide Clause 10, it takes into consideration total irrigation potential or capacity of the project, loss in that capacity because of diversion of water for non irrigational purposes and accordingly computation in clause 13 is required to be worked out to compensate for that loss. A circular no. BWS1003 dated 21.02.2004 has been issued thereafter, by order and in the name of Governor of Maharashtra. Reason for its issuance is confusion over recovery of capital contribution and irrigation restoration charges at regional level which was causing delays in executing the agreements with nonirrigation water user bodies. Clause A therein deals with contribution towards capital costs and enables the user body like the petitioner to pay water levy at a higher rate, instead of said contribution. Present pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recovered from it. It also states that further expenditure for facilitating the distribution of said quantity of water for irrigation purposes ought not be incurred. Subclause [2] also requires that in such an eventuality, construction of distribution network should be curtailed and for that purpose, proportionate reduction in area of land to be irrigated as water is diverted for non-irrigational purposes is to be borne in mind. Thus, because of proportionate reduction in command area of project, the State Government has directed that the construction of project or distribution network rendered redundant due to water allocation should be discontinued/stopped. It has further added that in that case there would not be any issue of recovery of irrigation restoration charge, as there would not be any further expenditure. This therefore shows that IRC may not be due and payable in all cases where the water is allocated for non-irrigational purposes at the beginning of construction work of an irrigation project. Proportionate water quantity already allocated for non-irrigational purpose is deleted from consideration for the purpose of completion of such project and expenditure to utiliz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was extended by one more year. Ultimately, within the tipulated time i.e. on 22.05.2012, the later agreement has been entered into. Later agreement is essentially due to watrer reservation or allocation on 22.09.2008. Later agreement dated 22.05.2012 does not reserve or allocate water but specifies how that water is to be used. 51. Mega Power Policy of Maharashtra State for investment in power generation sector for capacity addition of 500 MW and above, issued on 28.03.2005 shows a decision to promote the investment in power generation sector by giving adequate support and single window clearance. State Government has assured the availability of water for such project. Certain other exemptions or incentives have been granted while extending initial support. We need not delve into the nicites thereof, but, it is in consonance with the circular dated 21.02.2004 supra. 52. Agreement entered into between the parties on 22.05.2012, needs to be perused in this background. In this agreement, petitioner Company has instead of capital expenditure, agreed to pay for water supplied at a higher rate as per government resolution dated 21.02.2004. According to it, petitioner company ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tares and hence, total amount of Rs. 232.18 Crores. It is therefore, obvious that in this representation, which is prior to the agreement, there is no dispute about the extent of area with respect to which IRC needs to be worked out. It is this representation, subject to which an agreement has been entered into between the parties, and subject to which an undertaking has been furnished by the petitioner and accepted by the respondents. In view of this position, the arguments of Shri M.G. Bhangde, learned Senior Counsel that area with relation to which IRC needs to be computed need not be and cannot be gone into. He has advanced three different arguments and Shri R. Deo, learned Associate Advocate General has in reply pointed out that because of later improvements and modifications,extent of area deprived of irrigation is much more. In the light of our findings on water allocation policy and resolution dated 21.02.2004, changes in project potential after reservation of water in favour of any body like petitioner cannot result in adding to the burden of petitioner. State Government does not permit any expenditure to be incurred to facilitate distribution of that quantity of water whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision thereon would be arrived at within reasonable period has been taken note of. The said Division Bench also then looks into communication of petitioner dated 10.05.2012, whereby the petitioner did agree to pay Rs. 232.18 Crores in 5 installments over a period of 2 years with interest but subject to decision on their representations as also to consequential reduction or modification of installments and adjustments of amount found paid in excess. Argument that matter pertains to contractual obligation and hence, the Court should not intervene, has also been taken note of. The Government Pleader there had submitted that the second installment was due on 21.11.2012, memo of Writ Petition No. 2174 of 2012 was affirmed on 05.11.2012 and was moved only on 21.11.2012. The petitioners in reply, had pointed out to that Division Bench that first and second installments by them cover amount of Rs. 106 Crores, leaving balance amount of Rs. 10 Crores and it would have become payable only in May, 2014. 55. In paragraph No.5 of the order, the letter dated 10.05.2012 whereby the petitioner accepted the liability to pay an amount of Rs. 232.18 Crores in 5 installments has been considered an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as Public Utility Industries. To make up the deficit in need of electricity in State of Maharashtra, the State Government formulated a scheme and allowed water, which was till then being used primarily for irrigation purposes, to be withdrawn and used for generation plants. Domestic users were given first preference, while industrial use was placed at second number. Irrigation purpose was placed at last as third one. In consonance with this policy, a Mega Policy has come on 28.03.2005. Various government resolutions and circulars needs to be viewed in this background. Circular dated 21.02.2004 is issued to avoid any confusion hence, the State itself has declared itself to be bound by it. No negotiations are possible on the factors stipulated regulated therein. IRC rate is expressly agreed to be contingent upon the decision on Petitioner's representation by the parties thereto. Rate of IRC is not seen left to be a negotiable term of contract by the State but it has been determined by GR or circular which may operate against the wish of parties to Contract. The scheme for working out IRC looked into above by us show that the rate of IRC may be less than Rs. 50,000/per hect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the termination of his contract and publication of fresh tender invitation for construction of road. Appellant Corporation pointed out the disputed questions involved as also the provision for resolution thereof in agreement. Hon'ble Apex Court, in para 6 takes note of the disputed questions of facts arising between the parties in said background, finds recourse to in house remedy necessary. This aspect is also clear from State of U.P. v. Bridge Roof Co. (India) Ltd., (1996) 6 SCC 22, at page 29 : where Hon'ble Apex Court, in para 16 observes that the contract between the parties was a private and not a statutory contract. Any dispute relating to interpretation of the terms and conditions of such a contract cannot be agitated, and could not have been agitated, in a writ petition. That was a matter either for arbitration as provided by the contract or for the civil court. All disputed questions arose under said contract which could not be r adjudicated upon in a writ petition. 60. The effect of arbitration clause or in house remedy is also clear from State of Orissa v. Bhagyadhar Dash, (2011) 7 SCC 406 : in para 22 observes that the clause in agreement can not be const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or decisions. 62. The petitioner also relies on judgment of Hon'ble Apex Court, in Reliance Energy Ltd. v. Maharashtra State Road Development Corpn. Ltd., (2007) 8 SCC 1. There it is observed 36. We find merit in this civil appeal. Standards applied by courts in judicial review must be justified by constitutional principles which govern the proper exercise of public power in a democracy. Article 14 of the Constitution embodies the principle of nondiscrimination . However, it is not a freestanding provision. It has to be read in conjunction with rights conferred by other articles like Article 21 of the Constitution. The said Article 21 refers to right to life . It includes opportunity . In our view, as held in the latest judgment of the Constitution Bench of nine Judges in I.R. Coelho v. State of T.N., Articles 21/14 are the heart of the chapter on fundamental rights. They cover various aspects of life. Level playing field is an important concept while construing Article 19(1)(g) of the Constitution. It is this doctrine which is invoked by REL/HDEC in the present case. When Article 19(1) ( g ) confers fundamental right to carry on business to a company, it is e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duction of evidence possible in ordinary civil suits., Moreover, the Hon'ble Apex Court held that it is the contract and not the executive power, regulated by the Constitution, which governed the relations of the parties on facts. Here we have already found that to avoid any confusion, circular dated 21.02.2004 has been taken out it denudes the State of its power to bargain on IRC. 64. The Respondent State points out that while considering the reach of writ court in contractual matters as also non permissibility of approbation and reprobation, Hon'ble Apex Court in Rajasthan State Industrial Development Investment Corpn. v. Diamond Gem Development Corpn. Ltd., (2013) 5 SCC 470, where in para 21, it states that generally the Court should not exercise its writ jurisdiction to enforce the contractual obligation. The primary purpose of a writ of mandamus is to protect and establish rights and to impose a corresponding imperative duty existing in law. It is designed to promote justice (ex debito justitiae). The grant or refusal of the writ is at the discretion of the court. The writ cannot be granted unless it is established that there is an existing legal right of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... warded by a statutory body. It did not agree with the observation of the High Court that since the obligations imposed by the contract on the contracting parties came within the purview of the Contract Act, that would make the contract statutory. In facts before us, the Petitioner Company points out that rate of IRC is predecided on 21.02.2004 and Respondents are highhandedly trying to change it. Petitioners have acted upon the representation contained in said circular dated 21.02.2004 the State, though has enhanced the rate, has not revised it retrospectively. Further, the observations of Apex Court in paragraphs 12 13 of said judgment pressed into service by the Respondent State show that after considering the nature of dispute, Hon'ble Apex Court has refused to intervene in the matter and allowed the High Court judgment to operate. 66. When State Government has its exclusive hold on water, formulates a policy, diverts water and assures it to be available for power generation in public good in terms thereof, the contract can not be viewed as an ordinary private contract and this court should, if no disputed issue crops up, attempt to adjudicate it, both in the interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances. 67. To buttress the submission that notes in a file can not be used by the Petitioner to claim a right or then an illegality or irregularity can not be perpetuated by using such remarks, support is being drawn by the State from Shanti Sports Club vs. UOI, (2009) 15 SCC 705. The Petitioner is only pointing out a letter dated 17.01.2011 sent by one office to other. Only on the basis of such a letter, course of action or treatment suggested therein, petitioner can not raise any ground to attack or seek any relief. Different thought processes or varying opinions may be put forth by different officers for consideration via such notes in office files and object is only to enable the competent superior authority to reach an appropriate view after evaluating all pros cons. Till that is done, no decision binding on the State or any artificial person, emerges. We are also not recording a finding on any right or seeing any right in petitioner on the strength of advice tendered in said letter. 68. To justify absence of elaborate reasoning in an administrative order rejecting the representation passed on 29.01.2013, Respondent submits that as held in UOI vs. E.G. Nambudri, (1991) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to the setting and context of the statutory provisions. Where a vested right is adversely affected by an administrative order, or where civil consequences ensue, principles of natural justice apply even if the statutory provisions do not make any express provision for the same, and the person concerned must be afforded opportunity of hearing before the order is passed. But principles of natural justice do not require the administrative authority to record reasons for the decision as there is no general rule that reasons must be given for administrative decision. Order of an administrative authority which has no statutory or implied duty to state reasons or the grounds of its decision is not rendered illegal merely on account of absence of reasons. It has never been a principle of natural justice that reasons should be given for decisions. See: Regina v. Gaming Board for Great Britain, ex p. Benaim and Khaida. Though the principles of natural justice do not require reasons for decision, there is necessity for giving reasons in view of the expanding law of judicial review to enable the citizens to discover the reasoning behind the decision. Right to reasons is an indispensable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored. 15. When a belated representation in regard to a stale or dead issue/ dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the dead issue or timebarred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court s direction. Neither a court s direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches. 70. The representation of the Petitioners here can not be seen as uncalled for. It is pointing out the rate of IRC stipulated in circular dated 21.02.2004 and impact thereof. This representation finds mention in the agreement between the parties also in undertaking of the Petitioner accepted by the Respondents. The rate of IRC is expressly contingen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w may, therefore, ........... .............. ............. to carry out the promise made by it. (SCC p. 453, para 33) 34. The discordant note struck by Jit Ram case was firmly disapproved by a Bench of three Judges in Union of India v. Godfrey Philips India Ltd. It was affirmed that: (SCC p. 387, para 12) 12. 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. 35. It was held that irrespective of the nature of power wielded the Government is bound to wield that power provided it possessed such power and has promised to do so knowing and intending that the promisee would act on such promise and the promisee has done so: (Godfrey Philips India Ltd. Case 9, SCC p. 389, para 14) 14. We think that the Central Government had power under Rule 8 subrule (1) of the Rules to issue a notification excluding the cost of corrugated fibreboard .............. ............. bound ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke the just balance between the administrative discretion to decide matters as per government policy, and the need of fairness. Any unfair action must be set right by judicial review. 36. In Chief Constable of the North Wales Police v. Evans Lord Hailsham stated: (WLR p. 1161 AB) The underlying object of judicial review is to ensure that the authority does not abuse its power and the individual receives just and fair treatment, and not to ensure that the authority reaches a conclusion which is correct in the eyes of the court. 73. To explain the import of phrase subject to employed in the agreement as also in undertaking dated 22.5.2012, Petitioner has invited our attention to South India Corporation (P) Ltd. vs. Secretary, Board of Revenue, Trivandrum Anr., AIR 1964 SC 247(1)1964) 4 SCR 280 where in paragraph 19, Hon'ble Court states : 19. That apart, even if Article 372 continues the preConstitution laws of taxation, that provision is expressly made subject to the other provisions of the Constitution. The expression subject to conveys the idea of a provision yielding place to another provision or other provisions to which it is made subject. Further Article 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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