Gauhati High Court
Assam Roofing Ltd vs Union Of India And 5 Ors on 1 February, 2024
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
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GAHC010185612019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5647/2019
with I.A.(Civil)/1384/2021
with WP(C)/5645/2019
with I.A.(Civil)/1382/2021
with WP(C)/5648/2019
with I.A.(Civil)/1400/2021
with WP(C)/5649/2019
with I.A.(Civil)/1401/2021
with WP(C)/5650/2019
with I.A.(Civil)/1386/2021
ASSAM ROOFING LTD.
A COMPANY INCORPORATED UNDER THE PROVISION OF THE
COMPANIES ACT, 1956 AND HAVING ITS REGISTERED OFFICE AND
FACTORY SITUATED AT BONDA, NARENGI ASSAM, AND IN THE PRESENT
PROCEEDING REP. BY SRI MISHRILAL RAJAK, THE AUTHORIZED
SIGNATORY OF THE PETITIONER COMPANY
VERSUS
UNION OF INDIA AND 5 ORS.
REP.BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF
COMMERCE AND INDUSTRY (DEPTT. OF INDUSTRIAL POLICY AND
PROMOTION), UDYOG BHAWAN, NEW DELHI-110011
2:THE UNDER SECRETARY
TO THE GOVT OF INDIA
MINISTRY OF COMMERCE AND INDUSTRY (DEPTT. OF INDUSTRIAL
POLICY AND PROMOTION) UDYOG BHAWAN
NEW DELHI-110011
3:THE JOINT SECRETARY
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TO THE GOVT OF INDIA
MINISTRY OF COMMERCE AND INDUSTRY (DEPTT. OF INDUSTRIAL
POLICY AND PROMOTION) UDYOG BHAWAN
NEW DELHI-110011
4:GENERAL MANAGER
DISTRICT INDUSTRIES AND COMMERCE CENTER
BAMUNIMAIDAM GUWAHATI-781021
5:COMMISSIONER AND INDUSTRIES AND COMMERCE
ASSAM UDYOG BHAWAN
BAMUNIMAIDAM
GUWAHATI-21
6:STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
INDUSTRIES AND COMMERCE DEPTT. ASSAM
SECRETARIAT
DISPUR GUWAHAT
Advocate for the Petitioner : DR. A SARAF
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
Date : 01.02.2024
Heard Dr. A. Saraf, learned Senior Counsel for the petitioners and Ms. A.
Gayan, learned CGC for the respondent Nos. 1 to 3. Also heard Mr. N. Kalita,
learned counsel for the respondent Nos. 4, 5 and 6.
2. The petitioner's are challenging the inaction of the respondents in taking
steps for processing and disbursing the interest subsidy claim of the petitioners
under the (i) NEIP, 1997, (ii) CISS, 1997 and (iii) NEIIPP, 2007.
3. The petitioners' counsel submits at the outset that the present case is
covered by the judgment dated 22.05.2018 passed by this Court in a batch of
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writ petitions, the leading case being PDP Steels Limited -vs- Union of India and
4 others, WP(C) No. 57/2018. He submits that this Court in the above cases had
set aside the Circular dated 18.06.2014 issued by the Under Secretary to the
Government of India, Ministry of Commerce & Industry (Department of
Industrial Policy and Promotion), which revised the norms for determining the
interest subsidy admissible in respect of existing industrial units, which had
undergone substantial expansion under the NEIP, 1997 and NEIIPP, 2007.
4. The petitioners' counsel submits that the challenge made to the judgment
dated 22.05.2018, passed in the batch of writ petitions, led by WP(C) 57/2018,
had been dismissed by the Supreme Court on 12.04.2019 in Union of India and
others -vs- Barak Valley Cements Ltd. and others, SLP (Civil) No. 9785/2019.
5. The learned Senior Counsel submits that subsequent to the dismissal of
the SLP by the Hon'ble Supreme Court, the respondents filed Review Petition
No. 180/2019 before this Court, praying for a review of the judgment dated
22.05.2018 passed in WP(C) 57/2018 and others. However, the same was
withdrawn by the respondents, vide order dated 01.02.2023, on the ground that
the Circular dated 18.06.2014, which had been put to challenge, had now been
given Cabinet approval.
6. The learned Senior Counsel submits that the Circular dated 18.06.2014,
having been set aside by this Court and the same having been attained finality,
with the dismissal of the SLP filed by the respondents, the approval given by the
Cabinet to the set aside Circular dated 18.06.2014 could not bring a dead horse
back to life. He further submits that the challenge made to the Circular dated
18.06.2014 by the petitioners in WP(C) 57/2018 and other writ petitions was on
two grounds. The first ground of challenge was that the Circular dated
18.06.2014 was not a clarificatory, letter clarifying the mode in which interest
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subsidy was to be made available to the industrial units, but was instead an
attempt to modify the manner in determining the quantum of interest subsidy to
be made admissible in case of the industrial units as per the NEIIPP, 2007. The
second ground of challenge made to the Circular was that the Circular dated
18.06.2014 could not have whittled down or abrogated or modified the manner
in which the interest subsidy was to be given to the existing industrial units, in
terms of the NEIP, 1997 and NEIIPP, 2007, in the absence of the approval of the
Cabinet, as the giving of interest subsidy was a Policy decision of the State.
7. The learned Senior Counsel submits that while the respondents have now
tried to revive a dead horse on the basis of an ex-post-facto approval given by
the Cabinet to the set aside Circular dated 18.06.2014, the decision of this Court
in setting aside the Circular dated 18.06.2014 on the first ground cannot be
changed by the approval given by the Cabinet. He submits that to nullify the
effect of a judgment which has attained finality, the base of the judgment has to
be changed.
8. As per the understanding of the respondents, in view of the validation of
the Circular dated 18.06.2014, the provisions of the Circular dated 18.06.2014,
regarding the manner in which the interest subsidy was to be given to the
existing industrial units, would have to be followed.
9. In the present case, no such change has been made to the base of the
judgment, which can only be done by legislation. He also submits that there is
nothing to show that any retrospective effect can be given to the Circular dated
18.06.2014 only because of the Cabinet approval given on 28.12.2022. He also
submits that executive instructions cannot supersede the industrial policy of a
State, as no validating power to that effect had been given to the executive.
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10. In the case of State of Haryana -Vs- Ram Kumar and others, reported in
(2002) 9 SCC 703, the Supreme Court has held that by an administrative order,
the Government cannot overrule a judgment.
11. On the prayer of the learned counsels for the respondents, who submit
that they may be given one last chance to obtain instructions, one last chance is
given to obtain instructions in this matter.
12. Accordingly, list this matter on 09.02.2024.
13. One of the issues that the parties will have to be dwell upon, is as to
whether a Cabinet decision by itself is enforceable or not.
JUDGE
Comparing Assistant
