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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3849 OF 2013
PETITIONER :- M/s. Ashirwad Rice Udyog, a proprietary
through its Proprietor concern of Shri
Vishwanath Manikrao Karemore aged about
33 years, Occ: Business, Nehru Ward,
Bhandara-Tumsar State Highway, Post
Warthi, Tahsil Mohadi, District Bhandara.
...VERSUS...
RESPONDENTS :- 1. State of Maharashtra, through its Secretary,
Department of Industry, Mantralaya,
Mumbai.
2. District Industry Centre, through its General
Manager, Near Tahsil Office, Bhandara.
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Mr.D.V.Chauhan & Mr. H.A.Khedikar, counsel for the petitioner.
Mr. K.L.Dharmadhikari, Asstt.Govt.Pleader for the respondents.
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WRIT PETITION NO. 3834 OF 2013
PETITIONER :- M/s. Jaikishan Rice Industries, a proprietary
concern of Shri Vijay Manikrao Karemore
aged about 37 years, Occ: Business, Nehru
Ward, Warthi, Post Warthi, Tahsil Mohadi,
District Bhandara.
...VERSUS...
RESPONDENTS :- 1. State of Maharashtra, through the Secretary,
Department of Industry, Mantralaya,
Mumbai.
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2. District Industry Centre, through its General
Manager, Near Tahsil Office, Bhandara.
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Mr.D.V.Chauhan & Mr.H.A.Khedikar, counsel for the petitioner.
Mr. K.L.Dharmadhikari, Asstt.Govt.Pleader for the respondents.
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WRIT PETITION NO. 3835 OF 2013
PETITIONER :- M/s. Gurudeo Rice Udyog, a proprietary
concern of Shri Rameshwar Manikrao
Karemore aged about 30 years, Occ:
Business, C/o. Gurudeo Rice Udyog,
Bhandara-Tumsar State Highway, Mohgaon
(Devi), Tahsil Mohadi, District Bhandara.
...VERSUS...
RESPONDENTS :- 1. State of Maharashtra, through the Secretary,
Department of Industry, Mantralaya,
Mumbai.
2. District Industry Centre, through its General
Manager, Near Tahsil Office, Bhandara.
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Mr.D.V.Chauhan & Mr.H.A.Khedikar, counsel for the petitioner.
Mr. K.L.Dharmadhikari, Asstt.Govt.Pleader for the respondents.
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WRIT PETITION NO. 1655 OF 2015
PETITIONER :- M/s. R.K.Rice Udyog, a proprietary concern
of Shri Raju Manikrao Karemore aged about
44 years, Occ: Business, Nehru Ward,
Bhandara-Tumsar State Highway, Post
Warthi, Tahsil Mohadi, District Bhandara.
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...VERSUS...
RESPONDENTS :- 1. State of Maharashtra, through the Secretary,
Department of Industry, Mantralaya,
Mumbai.
2. District Industry Centre, through its General
Manager, Near Tahsil Office, Bhandara.
3. Naib Tahsildar, Mohadi, Dist Bhandara.
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Mr.D.V.Chauhan & Mr.H.A.Khedikar, counsel for the petitioner.
Mr. K.L.Dharmadhikari, Asstt.Govt.Pleader for the respondents.
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WRIT PETITION NO. 1653 OF 2015
PETITIONER :- M/s. M.K. Rice Industries, a proprietary
concern of Shri Manikrao s/o Atmaram
Karemore aged about 67 years, Occ:
Business, r/o Eklari, Warthi, Tahsil, District
Bhandara.
...VERSUS...
RESPONDENTS :- 1. State of Maharashtra, through the Secretary,
Department of Industry, Mantralaya,
Mumbai.
2. District Industry Centre, through its General
Manager, Near Tahsil Office, Bhandara.
3. Naib Tehsildar, Mohadi, Dist. Bhandara.
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Mr.D.V.Chauhan & Mr.H.A.Khedikar, counsel for the petitioner.
Mr. K.L.Dharmadhikari, Asstt.Govt.Pleader for the respondents.
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CORAM : SMT. VASANTI A NAIK &
ARUN D. UPADHYE
, JJ.
DATED : 02.08.2017 O R A L J U D G M E N T (Per : Smt.Vasanti A Naik, J.) Since the issue involved in these writ petitions is similar and similar orders passed by the respondent No.2 are challenged therein, they are heard together and are decided by this common judgment.
2. The State Government had floated a package incentive scheme on 31/03/2001 known as 'The Package Scheme of Incentive 2001' with a view to grant some incentive to the small scale industries that were desirous of setting up of the units in underdevelopment areas for the dispersal of the industries. The petitioners proposed to set up the rice mills on separate pieces of land that were owned and possessed by the petitioners. The petitioners, therefore, applied to the respondent No.2 for grant of incentives, by the applications made on 31/03/2006. Along with the applications, the petitioners had submitted the documents pertaining to the ownership of the pieces of land on which the units were to be set up as also the other necessary certificates secured from the Maharashtra Pollution Control Board, etc. On receipt ::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 01:48:35 ::: 0208WPs3849.13+3-Judgment 5/10 of the applications and the documents, a separate letter of intent was issued in favour of each of the petitioners, on 04/08/2006. Certain formalities were required to be completed before the final eligibility certificate could be granted. On the basis of the letter of intent, each of the petitioners commenced with the construction of the units for the rice mills and the production was started on 05/03/2008. In May, 2008, each of the petitioners requested the respondent No.2 to grant final eligibility certificate to the petitioners. The final eligibility certificate was accordingly granted to the petitioners on 28/05/2008. The rice mills of each of the petitioners started working and from 2008 till 2012 there was no complaint that the petitioners had not complied with any of the provisions of the incentive scheme or the eligibility certificate. The petitioners received the amount of Rs.25,00,000/- which was payable to each of the petitioners under the scheme after 2008, in installments. Inspections of the projects of the petitioners were carried out by the respondent No.2 from time to time. On 11/04/2011, a notice was issued by the respondent No.2 to each of the petitioners, asking the petitioners to show cause as to why the benefit of the scheme should not be withdrawn as the units of each of the petitioners were not working. The petitioners submitted the reply dated 18/06/2011 along with the documents to demonstrate that the rice mills of the petitioners were functional. On 20/08/2011 the petitioners were asked by the ::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 01:48:35 ::: 0208WPs3849.13+3-Judgment 6/10 communications of the respondent No.2 dated 20/08/2011 to appear before the respondent No.2 on 30/08/2011 along with the maps. The petitioners could not remain present before the respondent No.2 on the said date and, therefore, they requested for grant of some time. The respondent No.2 then asked the petitioners to appear before him on 09/09/2011 vide communications dated 30/08/2011 which according to the petitioners, were not received by them, till November, 2011. On 21/09/2011, a communication was again served on the petitioners that the units of the petitioners were closed and the petitioners were therefore not entitled to the incentive benefits. A detail reply was submitted by the petitioners to the respondent No.2 on 18/11/2011, asking the respondent No.2 to inspect the units to consider whether the units were actually functional or not. It was asserted by the petitioners in the said reply that the units of the petitioners were working. On 02/04/2012, the petitioners furnished the yearly documents to the respondent No.2 as per usual practice. The respondent No.2 did not take any action against the petitioners after the receipt of the documents on 02/04/2012 and then after a year, by the impugned orders dated 04/05/2013, the respondent No.2 sought the recovery of the amount of Rs.25,00,000/- paid to each of the petitioners, towards the incentive benefits. The recovery orders were issued against the petitioners on the ground that the units of the petitioners were not ::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 01:48:35 ::: 0208WPs3849.13+3-Judgment 7/10 working. The petitioners have impugned the orders dated 04/05/2013 in these writ petitions.
3. Shri Chavan, the learned counsel for the petitioners, submitted that it is apparent from the documents tendered by the petitioners to the respondent No.2 from time to time that the units of the petitioners were functioning from 05/03/2008 till the impugned orders were served on the petitioners on 04/05/2013. It is stated that since the loan advanced by the Bank of India was repaid by the petitioners from time to time, it is apparent that the rice mills of the petitioners were functional and production was going on in the rice mills. It is submitted that though the orders seeking the recovery of the incentive benefits were passed by the respondent No.2 on the assumption that the units of the petitioners were not working for the first time it is stated in the affidavit-in-reply filed on behalf of the respondent No.2 that the petitioners had secured the incentive benefits under the scheme by misrepresentation. It is stated in the affidavit-in- reply that the respondent No.2 has taken a stand that the petitioners were dis-entitled to the benefits, as the production was going on under one roof. It is submitted that the statement in the affidavit-in-reply that the production was going on under one roof would clearly show that the units of the petitioners were functional. It is submitted that when ::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 01:48:35 ::: 0208WPs3849.13+3-Judgment 8/10 an impugned order is based on some reasons, by an affidavit-in-reply filed in the court, the respondents cannot add reasons in support of the order. The learned counsel relied on the judgment of the Hon'ble Supreme Court, reported in AIR 1978 SCC 851 (Mohinder Singh v. Chief Election Commr.) to substantiate his submission. It is submitted that in the circumstances of the case, the impugned orders are liable to be quashed and set aside.
5. Shri Dharmadhikari, the learned Assistant Government Pleader appearing for the respondents, supported the impugned orders. It is submitted that the petitioners had misrepresented the facts while seeking the benefits under the package scheme of incentive 2001. It is stated that though the petitioners had submitted applications for independent rice mill units, the petitioners were carrying of the production under one roof. It is submitted that in view of the aforesaid, the eligibility certificate was liable to be cancelled and the recovery was liable to be ordered. It is stated that though the petitioners were required to carry out the activity of rice milling, the petitioners were intermittently indulging in paddy steaming and drying facility. It is submitted that in view of the aforesaid, the eligibility certificate of the petitioners was cancelled and the amount paid to the petitioners towards incentive benefits was sought to be recovered. It is submitted ::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 01:48:35 ::: 0208WPs3849.13+3-Judgment 9/10 that all the five units are owned by the members of the same family. The learned Assistant Government Pleader, however, fairly admitted that the reasons stated in the affidavit-in-reply for cancelling the eligibility certificate do not find place in the impugned orders, dated 04/05/2013.
6. It is apparent from a reading of the impugned orders and the affidavit-in-reply filed on behalf of the respondent No.2 that the respondent No.2 has not supported the impugned orders on the basis of the reasons recorded in the impugned orders for seeking the recovery of the incentive benefits. The reasons for cancellation of the eligibility certificates and for the recovery of the incentive benefits in the impugned orders are different from the reasons stated in the affidavit- in-reply. As rightly submitted on behalf of the petitioners, reasons cannot be added to an order to support the same by an affidavit-in-reply filed by the respondents. If reasons cannot be added to an impugned order by the affidavit-in-reply, as held by the Hon'ble Supreme Court in the judgment reported in AIR 1978 SC 851, the respondent No.2 cannot support the impugned orders on the ground that the petitioners had misrepresented the facts and against the terms of the incentive scheme, the units of each of the petitioners were functioning under one roof. Though the impugned orders dated 04/05/2013 were based on ::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 01:48:35 ::: 0208WPs3849.13+3-Judgment 10/10 an assumption that the rice mills of the petitioners were not functional, it is stated in the affidavit-in-reply filed on behalf of the respondent No.2 that the production was going on under one roof. It is also stated in the affidavit-in-reply that instead of milling the rice, the petitioners had started intermittent activity of paddy steaming and drying. We find that though the impugned orders are based on the reason that the units of the petitioners were not working, by giving a go-bye to the said reason, the respondent No.2 has substituted the said reasons by fresh reasons in the affidavit-in-reply. Since the reasons stated in the affidavit-in-reply in support of the impugned orders do not find place in the impugned orders and since the petitioners did not have an opportunity in that regard, the impugned orders cannot be sustained.
7. Hence, for the reasons aforesaid, the writ petitions are allowed. The impugned orders are quashed and set aside. The respondent No.2 is free to take appropriate action against the petitioners, if desired. Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
KHUNTE
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