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TMI Blog2024 (8) TMI 1322X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. So far as the judgements of the Supreme Court in the case of M/S. VISHAL PROPERTIES PVT. LTD. VERSUS STATE OF U.P. ORS [ 2007 (10) TMI 647 - SUPREME COURT] 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the same in the three months, i.e., August, September and October, 2018. Scheme B 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 20th 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 30th 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alled upon all the manufacturers of Milk Powders who had submitted their claim as per the Government Resolution dated 31st July 2018. Accordingly, the Petitioner was also sent a notice to attend a hearing on 7th October 2021. The representatives of the Petitioner attended the hearing on 7th October 2021 and put forth their case before Respondent No. 2. By an Order dated 4th 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 31st 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 30th 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 30th 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 betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 4th 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 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 4th March 2022 and Report dated 26th May 2022. Further, this Court had passed Orders dated 20th 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sumbrui (1973) 3 SCC 889 , wherein 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 Parrikar (2010) 11 SCC 334, 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 20th 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 implement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment 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 20th 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. (emphasis supplied) 27. From the said Order dated 26th April 2023 it can be seen that the Application for extension was rejected and the Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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