Himachal Pradesh High Court

Atul Sharma vs Union Of India And Others on 6 January, 2025

Author: Sandeep Sharma

Bench: Sandeep Sharma

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No. 10600 of 2024 with CWP Nos.13353, 13354, 13357, 13406 and 13412 of 2024 Date of Decision: 06.01.2025 _______________________________________________________

1. CWP No. 10600 of 2024 Atul Sharma .......Petitioner Versus Union of India and others ... Respondents

2. CWP No. 13353 of 2024 Higgs Life Sciences Pvt. Ltd. .......Petitioner Versus Union of India and others ... Respondents

3. CWP No. 13354 of 2024 Haripur Paper Company .......Petitioner Versus

Union of India and others ... Respondents _______________________________________________________

Unix Biotech .......Petitioner Versus

Union of India and others ... Respondents

Higgs Healthcare .......Petitioner Versus

Union of India and others ... Respondents

Higgs Healthcare Unit-III .......Petitioner Versus

Union of India and others ... Respondents

______________________________________________________

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Coram:

Hon'ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting? 1 For the Petitioner(s): Mr. Sunil Mohan Goel, Advocate, for the petitioner in CWP No.10600 of 2024.

Mr. Ajay Thakur, Ajay Thakur, Advocate ,for petitioner(s) in CWP Nos.13353, 13354, 13357, 13406 and 13412 of 2024.

For the Respondent(s): Mr. Balram Sharma, Deputy Solicitor General of India, for the respondent-Union of India.

Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C.Verma, Additional Advocate Generals, with Mr. Ravi Chauhan, Deputy Advocate General, for the respondent-

State.

_______________________________________________________ Sandeep Sharma, Judge(oral):

Since common questions of facts as well as law are

involved in the above captioned petitions and similar reliefs have been

claimed, same were heard together and are being disposed of vide

this common judgment.

2. By way of instant petitions, petitioners have prayed for

the reliefs, which are similar, as such, relief prayed for in CWP

No.10600 of 2024 is reproduced herein below:-

"i) That the impugned letter dated 30.07.2024 (Annexure P-11) and impugned order letter dated 9.11.2023 (Annexure P-12) may kindly be struck or read down/quashed to the extent it has been applied to the petitioner, thereby rejecting registration of its hotel

Whether the reporters of the local papers may be allowed to see the judgment?

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under Industrial Development Scheme 2017 by issuance of an appropriate writ of certiorari;

(ii) That this Hon'ble Court may be pleased to issue writ of mandamus directing respondent Nos. 1 and 2 to formally register the petitioner's online application dated 22.03.2021, as being eligible under the Industrial Development Scheme 2017 and grant registration to the petitioner as per Industrial Development Scheme, 2017 and further order to allow the claim of the petitioner for grant of incentive under claim the consequential Central Capital Investment Incentive for Access to Credit (CCIIAC) @ 30% of the investment expenditure incurred on the petitioner project;

3. For having bird's eye view, facts, relevant for adjudication

of the case at hand as emerge from the pleadings adduced on record

by the respective parties are that vide Notification dated 23.04.2018,

Ministry of Commerce & Industry (Department of Industrial Policy &

Promotion), Government of India, notified a scheme called as

"Industrial Development Scheme, 2017 (for short 'IDS) for Himachal

Pradesh and Uttarakhand, to promote/boost industrial development

in hilly States like Himachal Pradesh and Uttrakhand by providing

financial incentives to the new and existing units in manufacturing

and service sector (Annexure P-1). To give effect to aforesaid

Scheme, General Operational Guidelines for the State of Himachal

Pradesh and Uttarakhand, also came to be circulated by the

Government of India vide Annexure P-2. Careful perusal of aforesaid

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Scheme suggests that same was to remain effective from 1.04.2017

till 31.03.2022. Clause 4 of the Scheme, provided for the eligibility of

the unit to be covered under the Scheme and as per eligibility criteria,

it was provided that all new and existing industrial units undertaking

on their substantial expansion in manufacturing sector and service

sector including Bio-technology and Hydel Power Generation Units

upto 10MW located in the State of Himachal Pradesh and

Uttarakhand would be eligible for incentive under the Scheme. Clause

6 of the Scheme provided that incentive shall be provided to eligible

industrial units on reimbursement basis i.e. Central Capital Investment

Incentive for access to credit (CCIIAC) and Central Comprehensive

Insurance Incentive (CCII). Clause 6.2 of the Scheme provided that

Central Capital Investment Incentive for access to credit would be

provided to all eligible existing new industrial units and existing

industrial units on their substantial expansion in the manufacturing

and service sector located anywhere in the State of Himachal

Pradesh and Uttrakhand at the rate of 30% of the investment in plant

and machinery with an upper limit of Rs. 5.00 crore. As per afore

Clause, project cost was required to be apprised by a Scheduled

Commercial Bank or Financial Institution before the proposal of

assistance is approved by Empowered Committee of DIPP. Clause

6.1 of the Scheme provided for an Empowered Committee chaired

by Secretary, Department of Industrial Policy and Promotion with

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Secretaries of Department of Expenditure, representatives of NITI

Aayog and Secretary of the concerned Ministries/ Departments of

Government of India dealing with the subject matter of that industry

and its members, as also the concerned Chief Secretary/

Secretary(Industry) of the State, where the beneficiary unit claiming

incentive is located for selection of beneficiaries under the Scheme.

As per aforesaid clause Empowered Committee, while examining the

proposals for incentive, was required to be given to give due

consideration for factors like cost disadvantage, project viability,

bankability, employment generation and promoters' risk capital.

4. In nutshell, the grouse of the petitioner as has been

highlighted in the petition and further canvassed by Mr. Sunil Mohan

Goel, learned Senior counsel duly assisted by Mr. Ajay Thakur and

Mr. Raman Jamalta, Advocates, representing the petitioner, is that

though petitioner herein being fully eligible in terms of Clause 4 of the

Scheme, applied on the portal of 'IDS' and was allotted IDS/HP/1945

number by the DIPP (Annexure P-3), but yet his case was not

considered under the Scheme, as result thereof, he has been put to

huge financial loss. It is averred in the petition that petitioner after

having purchased land measuring 0-79-80 hectares comprised in

Khasra Nos. 1376, 1378, 1379, 1380, 1554/1381, 1510, 1551/1511,

1512 & 1513, Kita 9, Khata/Khatauni No.147/2020, situate in Muhal

and Phatti Palchan, Tehsil Manali, District Kullu, Himachal Pradesh in

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the year, 2011 constructed hotel in the name and style of Whispering

Rock Hotel and registration of the said hotel was valid till 7.11.2015

by the Tourism Department. Since construction of afore hotel was old

and petitioner wanted to expand the hotel as such, petitioner applied

to the Town & Country Planning Department, Kullu in the year, 2014

with fresh expansion plans, which were further approved by the

Department vide letter dated 26.06.2014. Immediately prior to

demolition of old hotel complex, Scheme came to be announced by

the Government of India vide notification dated 23.04.2018. Petitioner

being eligible to apply under the Scheme, applied with fresh plans to

the Town & Country Planning Department, Kullu to undertake

construction of the hotel consisting of 56 rooms with Bar, Restaurant,

Coffee Shop, Conference Hall, Health Club and Swimming pool.

Though, necessary permission as well as NOCs were granted by the

concerned authorities of the Himachal Pradesh and petitioner also

raised construction work, legitimately expecting that he would be

provided incentive under the Scheme notified by the Government of

India vide notification dated 23.04.2018, but his case was not

considered by the Empowered Committee chaired by Secretary,

Department of Industrial Policy and Promotion, Government of India,

on the pretext that at the time of convening of meeting by the

Committee, as detailed hereinabove, for the State of Himachal

Pradesh, petitioner was not registered under the Scheme.

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5. Mr. Sunil Mohan Goel, learned Senior counsel

representing the petitioner, while making this Court peruse pleadings

as well as other documents adduced on record, vehemently argued

that three meetings of the Empowered Committee to consider the

application for additional unit under the Scheme took place between

the year 2021 to 2023, but yet case of the petitioner, who had well

within time registered himself, was not considered. While referring to

reply filed by respondent Nos. 3 and 4, learned Senior counsel

representing the petitioner, submitted that State Government had

repeatedly recommended the case of the petitioner, but for no cogent

and convincing reason, Empowered Committee failed to consider the

same. While referring to reply filed by respondent Nos. 1 and 2,

learned Senior Counsel representing the petitioner argued that there

is no specific denial on the part of Government of India that petitioner

herein had applied on 22.03.2021 on the portal of IDS and as such,

he was required to be considered under the Scheme.

6. Mr. Balram Sharma, learned Deputy Solicitor General of

India representing respondent Nos. 1 and 2, while justifying the action

of respondent-Union of India inasmuch as afore respondents refused

to consider the case of the petitioner on the ground that petitioner was

never registered under the scheme, submitted that though petitioner

had applied under IDS, 2017 for grant of CCIIAC and CCII, but since

he was not granted registration, there was no occasion, if any, for the

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Empowered Committee to consider his case. He submitted that

merely uploading of application on the web portal of the Department

does not give any right to the petitioner to claim that his unit was

registered well within time, rather after his having uploaded the

application online on 22.03.2021, he was merely issued application

number, which was wrongly interpreted as registration number. He

further submitted that process of application is wrongly construed by

the petitioner because once the unit applies on the portal, same, at

first instance, is received at the District Industries Centre (DIC) of the

concerned States. He states that once DIC recommends the

application, same is forwarded to the State Nodal Officer and it is only

after recommendation of the State Nodal Officer, case is forwarded to

the Department for promotion of Industry and Internal Trade (DPIIT),

Government of India, for grant of registration in accordance with

Clause 7.3 of the Scheme. While referring to aforesaid Clause,

learned Deputy Solicitor General of India, attempted to argue that final

grant of registration in principle could only have been decided by the

Committee and no industrial unit shall have right to register, under the

Scheme for the State of Himachal Pradesh and Uttarakhand or claim

the benefits, unless it is specifically approved by the Central

Government. He submitted that since petitioner's unit never came to

be recommended by the Empowered Committee for registration,

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coupled with the fact that the Scheme already stands expired, prayer

made in the instant petition deserves outright rejection.

7. Learned Additional Advocate General representing the

respondent-State, submitted that owing to Corona pandemic during

the pendency of the Scheme, the industrial units(State of Himachal

Pradesh) were put to severe financial disadvantage and as such,

case of the petitioner and other similarly situate persons, is required

to be considered sympathetically. He submitted that though

respondent-State has very limited role for providing incentive in terms

of Scheme, but in the case at hand application received on

08.03.2022 for pre-registration vide No. IDS/HP/1945 was updated on

portal on 19.03.2022. He submitted that application was forwarded to

the Ministry of Commerce & Industry Department for Promotion of

Industry & Internal Trade, Government of India, through online portal

well within time.

8. Since after having perused the pleadings adduced on

record, this Court find that same were conspicuously silent about the

status of the application filed by the petitioner, this Court vide order

12.11.2024 called upon respondent Nos. 1 and 2 to file

supplementary affidavit within a period of three weeks, specifically

stating therein "Whether application having been uploaded by the

petitioner on portal well within time was actually considered or not? If

not, why?"

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9. Pursuant to afore direction issued by this Court, Under

Secretary, (DPIIT), Government of India, has filed supplementary

affidavit, which, if read in its entirety, nowhere suggests that queries

raised by this Court vide order 12.11.2024 has been answered, rather

attempt has been made to reiterate the stand taken by afore

respondents in their reply to the main petition. It has been stated in

the afore affidavit that according to the data available with the

Department, the District Industries Centre (DIC) sought clarification

from the applicant unit on 3.6.2021 and thereafter, same was

forwarded to State Nodal Officer. There is nothing in the afore affidavit

as well as reply to the petition that proposal submitted by the

petitioner approved by DIC and further verified by State Nodal Officer,

was ever placed before the Empowered Committee or not? In addition

to afore stand taken by the respondents, attempt has been made to

defeat the claim of the petitioner on the ground that in coherence with

the decision of the Cabinet of Union Government, no claim and

registration will be entertained from the unregistered units(Annexure

R-6).

10. Having heard learned counsel representing the parties

and perused pleadings adduced on record by the respective parties,

this Court finds that there is no dispute with regard to eligibility of the

petitioner to apply for incentive under the Scheme. It is also not in

dispute that petitioner herein being fully eligible had applied online on

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the portal of the IDS on 22.3.2021and in lieu thereof, he was allotted

No. IDS/HP/1945 (Annexure P-3). Though, factum with regard to

petitioner having applied well within time has been not denied by

respondent Nos. 1 and 2, but attempt has been made to defeat the

claim of the petitioner on the ground that at the time of meeting of

Empowered Committee constituted in terms of Clause 6.1 of the

Scheme, unit of the petitioner was not registered. Though, learned

Deputy Solicitor General of India repeatedly attempted to argue that

mere application, if any, filled by the petitioner-unit on the web portal

on 22.3.2021 would not make him entitled ipso facto for benefit of the

Scheme, but he was unable to pinpoint any document suggestive of

the fact that pursuant to application made by the petitioner online,

case of the petitioner was ever considered by Empowered

Committee. Though, careful perusal of the reply filed by respondent

Nos. 1 and 2 as well as supplementary affidavit filed in terms of order

dated 12.11.2024, if read in conjunction, clearly suggest that DIC

repeatedly sought for clarification from the petitioner's unit and in the

year 2022 i.e. on 8.3.2022 same was forwarded to the State Nodal

Officer, but it has nowhere clarified "whether State Nodal Officer

recommended the case of the petitioner to the Ministry of Commerce

& Industry Department for Promotion & Industry & Internal Trade for

placing it before the Empowered Committee or not?"

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11. If the reply filed by respondent Nos. 3 and 4 is read in its

entirety, it clearly reveals that application was received on 8.3.2022

for pre-registration vide No. IDS/HP/1945 and same was updated on

the portal on 19.03.2022. As per aforesaid respondents, application

was forwarded to Ministry of Commerce & Industry Department for

Promotion & Industry & Internal Trade, Government of India through

online portal and thereafter further action, if any, was to be taken by

the government. As per aforesaid respondents, State has very limited

role in grant of incentive as it could only process the application,

subject to fulfillment of eligibility criteria, through online portal on

DPIIT for pre-registration and thereafter, final decision to grant of

registration/approval could only be taken by the Committee of

Government of India.

12. Repeatedly, this Court called upon the respondents to

make available record, if any, with regard to consideration of the

application made by the petitioner through online mode for

registration, but in vain. As has been noticed hereinabove, there is

nothing in the reply filed by respondent Nos.1 and 2 suggestive of the

fact that pursuant to petitioner having applied online, application of the

petitioner was ever placed before the Committee. Though, as per the

reply of afore respondent Nos. 1 and 2, case for registration of the

petitioner's unit or other similarly situate persons could only be

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considered after same was recommended by the DIC and further

approved by State Nodal Officer.

13. Though, it is quite apparent from the reply filed by

respondent Nos. 3 and 4 that application of the petitioner was

received on 8.3.2022 through Field Office and same was forwarded

to the Government of India through online portal during currency of

the said Scheme, but yet this Court with a view to have correct

information from the respondents with regard to processing of the

case specifically called upon respondent Nos. 1 and 2 to file

supplementary affidavit, specifically stating that "whether application

having been uploaded by the petitioner on portal well within time was

actually consider or not?", but yet no specific answer to afore query

ever came to be put forth. Hence, this Court is persuaded to agree

with the submission of learned counsel representing the petitioner that

though, petitioner herein had applied well within time during the

currency of the Scheme, but for the reason known best to the

respondent Nos. 1 and 2, his case was not considered for registration

under the Scheme.

14. Though, at this stage, Mr. Balram Sharma, learned

Deputy Solicitor General of India, attempted to argue that since now

Scheme is over and it has been specifically decided by the Cabinet of

Union Government that no claim of registration will be entertained

from the unregistered units, prayer made in the instant petition cannot

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be allowed at this stage, but this Court having taken note of the fact

that petitioner herein had applied well within time and there was no

hand, if any, of him in processing the case further, prayer made on

behalf of the petitioner for issuance of direction to respondent Nos. 1

and 2 to consider his case under the Scheme, deserves to be

considered. While placing reliance upon the judgment rendered by

Hon'ble High Court of Delhi in case titled Shirdi Industries Limited

vs. Union of India and others, in WP(c) No.17701/2024, decided on

23.12.2024, learned Deputy Solicitor General of India argued that

case of the present petitioner is similar to the facts and circumstances

of the afore case, but such petition has been dismissed by the

Hon'ble High Court of Delhi.

15. Having perused aforesaid judgment in its entirety, this

Court is convinced and satisfied that facts of the aforesaid case are

totally different from the case at hand as such, judgment passed by

the Hon'ble High Court of Delhi is not applicable in the present case.

True, it is that an individual cannot claim subsidy as matter of right in

terms of the policy formulated by the Government of India, but at

least he has right of consideration in the instant case. Though,

petitioner being fully eligible as per the scheme/policy formulated by

the Government of India for grant of incentive applied well within time

but his case never came to be placed before the Empowered

Committee for registration under scheme, as a result thereof, he has

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been deprived of the benefit, which otherwise could not have been

allowed in his favour on the basis of his entitlement in terms of the

scheme.

16. No doubt, the Scheme has come to an end, but careful

perusal of letters dated 30.07.2024 (Annexure P-11) and dated

9.11.2023 (Annexure P-12), clearly reveals that additional outlay of

Rs. 1164.53 crore under IDS, 2017 has been provided by the

Government of India to the State of Himachal Pradesh and

Uttarakhand for the 774 already registered units in respect of various

incentives provided under the Scheme. No doubt, as per the Scheme,

amount provided was to be disbursed among registered units only,

but since in the case at hand there was no fault of the petitioner,

rather failure, if any, to place the case of the petitioner before the

Empowered Committee for registration lies on the official of

respondent Nos. 1 and 2, who despite having received application

duly recommended to the State of Himachal Pradesh, failed to place

the same before the Empowered Committee, this Court sees no

impediment in directing the respondents to place the case of the

petitioner before the Empowered Committee constituted in terms of

Clause 6.1 of the Scheme for considering the prayer of the petitioner

for registration under the Scheme.

17. Once Government of India by way of the Scheme agreed

to provide some financial incentive to industrial units and in

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furtherance thereof, petitioner herein made huge investment, coupled

with the fact that application filed by him, complete in all respect, was

forwarded to the Government of India by State of Himachal Pradesh,

rightful claim of the petitioner cannot be permitted to defeated on the

ground raised by the respondents with regard to expiry of the

Scheme, which otherwise is in operation as necessary funds are yet

to be provided to the State of Himachal Pradesh for further

distributing the same to the registered units.

18. Reliance in this regard is placed upon the judgment

passed by Hon'ble Apex Court in State of Jharkhand and others vs.

Brahmputra Metallics Limited, Ranchi and another, (2023) 10

Supreme Court Cases, 634, wherein it has been held as under:-

"36. Another difference between the doctrines of promissory estoppel and legitimate expectation under English law is that the latter can constitute a cause of action. [ Rebecca Williams, "The Multiple Doctrines of Legitimate Expectations", (2016) 132 (Oct) Law Quarterly Review 639, 645.] The scope of the doctrine of legitimate expectation is wider than promissory es- toppel because it not only takes into consideration a promise made by a public body but also official practice, as well. Fur- ther, under the doctrine of promissory estoppel, there may be a requirement to show a detriment suffered by a party due to the reliance placed on the promise. Although typically it is suf- ficient to show that the promisee has altered its position by placing reliance on the promise, the fact that no prejudice has been caused to the promisee may be relevant to hold that it would not be "inequitable" for the promisor to go back on their promise. [ American Law Institute, Restatement of the Law (2d), Contracts (1981), para 4-095.] However, no such re-

quirement is present under the doctrine of legitimate expecta- tion. In R. v. Newham London Borough Council [R. v. Newham London Borough Council, (2002) 1 WLR 237 (CA)] , the Court of Appeal held : (Newham London Borough Council

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case [R. v. Newham London Borough Council, (2002) 1 WLR 237 (CA)] , WLR p. 250, para 55) "55. The present case is one of reliance without concrete detriment. We use this phrase because there is moral detriment, which should not be dismissed lightly, in the prolonged disappointment which has ensued; and potential detriment in the deflection of the possibility, for a refugee family, of seeking at the start to settle somewhere in the United Kingdom where secure housing was less hard to come by. In our view these things matter in public law, even though they might not found an estoppel or actionable misrepresentation in private law, because they go to fairness and through fairness to possible abuse of power. To disregard the legitimate expectation because no concrete detriment can be shown would be to place the weakest in society at a particular disadvantage. It would mean that those who have a choice and the means to exercise it in reliance on some official practice or promise would gain a legal toehold inaccessible to those who, lacking any means of escape, are compelled simply to place their trust in what has been represented to them."

48. Applying the abovementioned principles in the present case, we are unable to perceive any substance in the submission of the State which was urged in defence before the High Court. Not only did the State in the present case hold out a solemn representation, this representation was founded on its stated desire to encourage industrialization in the State. The policy document spelt out:

(i) The nature of the incentives;

(ii) The period during which the incentives would be available; and

(iii) The time-limit within which follow-up action would be taken by the State Government through its departments for implementing the Industrial Policy, 2012.

49. The State having held out a solemn representation in the above terms, it would be manifestly unfair and arbitrary to deprive industrial units within the State of their legitimate entitlement. The State Government did as a matter of fact, issue a statutory notification under Section 9 but by doing so

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prospectively with effect from 8-1-2015 it negated the nature of the representation which was held out in the Industrial Policy, 2012. Absolutely no justification bearing on reasons of policy or public interest has been offered before the High Court or before this Court for the delay in issuing a notification. The pleadings are completely silent on the reasons for the delay on the part of the Government and offer no justification for making the exemption prospective, contrary to the terms of the representation held out in the Industrial Policy, 2012.

50. It is one thing for the State to assert that the writ petitioner had no vested right but quite another for the State to assert that it is not duty-bound to disclose its reasons for not giving effect to the exemption notification within the period that was envisaged in the Industrial Policy, 2012. Both the accountability of the State and the solemn obligation which it undertook in terms of the policy document militate against accepting such a notion of State power. The State must discard the colonial notion that it is a sovereign handing out doles at its will. Its policies give rise to legitimate expectations that the State will act according to what it puts forth in the public realm. In all its actions, the State is bound to act fairly, in a transparent manner. This is an elementary requirement of the guarantee against arbitrary State action which Article 14 of the Constitution adopts. A deprivation of the entitlement of private citizens and private business must be proportional to a requirement grounded in public interest. This conception of State power has been recognised by this Court in a consistent line of decisions. As an illustration, we would like to extract this Court's observations in National Buildings Construction Corpn. [National Buildings Construction Corpn. v. S. Raghunathan, (1998) 7 SCC 66 : 1998 SCC (L&S) 1770] :

(SCC p. 75, para 18)

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18. ... The Government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without any iota of abuse of discretion. The policy statements cannot be disregarded unfairly or applied selectively.

Unfairness in the form of unreasonableness is akin to violation of natural justice."

51. Therefore, it is clear that the State had made a representation to the respondent and similarly situated industrial units under the Industrial Policy, 2012. This representation gave rise to a legitimate expectation on their behalf, that they would be offered a 50% rebate/deduction in electricity duty for the next five years. However, due to the failure to issue a notification within the stipulated time and by the grant of the exemption only prospectively, the expectation and trust in the State stood violated. Since the State has offered no justification for the delay in issuance of the notification, or provided reasons for it being in public interest, we hold that such a course of action by the State is arbitrary and is violative of Article 14."

19. It is quite apparent from the aforesaid exposition of law

that State, having held out a solemn representation would be

manifestly unfair and arbitrary to deprive industrial units within the

State of their legitimate entitlement. When Government has issued a

notification granting some incentive to the industrial units, there can

be absolutely no justification for rejecting the claim of beneficiaries.

Similarly, in the case at hand, once Government had approved an

additional outlay of Rs. 1164.53 crore under the Scheme for the State

of Himachal Pradesh and Uttarakhand for already registered units,

there cannot be any reason to deprive the petitioners from the benefit.

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20. Since petitioners, in above captioned petitions, had filed