Trident Metal Energy Private ... vs The State Of Jharkhand
2023 Latest Caselaw 1120 Jhar

     IN   THE       HIGH     COURT OF JHARKHAND                        AT RANCHI
                              L.P.A. No. 27 of 2022
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Trident Metal Energy Private Limited, having its Unit situated at Bokaro Industrial Area, Jena More, P.O. and P.S. Bokaro, District Bokaro, through its Director, namely, Amit Agarwal, aged about 46 years, son of Shri Pramod Agarwalla, resident of Harihar Singh Road, P.O. and P.S. Bariyatu, District Ranchi (Jharkhand), PIN 834008 ..... ..... Appellant Versus

1. The State of Jharkhand, through the Secretary, Industries Department, having its office at Nepal House, Doranda, P.O. and P.S. Doranda, District Ranchi (Jharkhand), PIN 834002.

2. Director of Industries, Industries Department, having its office at Nepal House, Doranda, P.O. and P.S. Doranda, District Ranchi (Jharkhand), Pin 834002.

3. Deputy Director of Industries, Industries Directorate, having its office at Nepal House, Doranda, P.O. and P.S. Doranda, Ranchi (Jharkhand), Pin 834002.

4. General Manager, District Industries Centre, Dhanbad, P.O. and P.S. Dhanbad, District Dhanbad. ..... ..... Respondents

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CORAM      :          HON'BLE THE CHIEF JUSTICE
                      HON'BLE MR. JUSTICE ANANDA SEN
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For the Appellant                : Mr. Sumeet Gadodia, Advocate
                                   Mrs. Shilpi Sandil Gadodia, Advocate
                                   Ms. Aanya, Advocate
For the Respondent-State         : Mr. Rahul Saboo, SC-I
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06 /Dated: 14.03.2023

In this intra court appeal, being the petitioner in W.P.(C) No. 1482 of 2012 has assailed the order passed by the learned Single Judge on 25th October 2021 dismissing his writ application with a prayer to extend the benefit of Capital subsidy which is provided in the Jharkhand Industrial Policy, 2001 to Small and Medium Scale Industries.

2. At the outset, learned counsel for the petitioner submits that the learned Single Judge has relied upon a judgment of Division Bench of this Court in the case of State of Jharkhand and Ors. Vs. Bir Steel Private Limited reported in (2018) SCC OnLine Jhar 402, wherein the Division Bench has held as follows:

"29. Having heard learned counsels for both the sides, we find that the cases relied upon by the learned counsel for the respondent, including the decision of the Hon'ble Supreme Court in Globle Energy Ltd. (supra), relied upon by the Hon'ble Single Judge in the impugned Judgment, relate to the matters where the Rules framed by the State Government were contrary to the provisions of the Act framed by the Legislature. In other words, provisions of the Act enacted by the Legislature were sought to be modified /

curtailed by the Rules framed by the State. In the present case, the situation is quite different. Jharkhand Industrial Policy, 2001, is not at all the creation of the Legislature. The Industrial Policy of 2001, as well as, the 2003 Rules, both of them are only the creations of the State Government in exercise of its executive power. In other words, both of them stand at equal pedestal and both of them may be termed as the policies of the State Government. The preamble of 2003 Rules nowhere states that it has been issued in exercise of Clause 36.2 of the Industrial Policy of 2001, rather it is an independent Rule framed by the State Government, prescribing eligibility and procedure for giving the benefits to the newly established industries under the Jharkhand Industrial Policy, 2001. We also find that since the period of limitation has been prescribed under Rule 4.3 (Gha) (1) and (2) of the 2003 Rules, which relates to claiming interest subsidy, it can very well be construed that this policy decision of the State Government relates to an economic policy of the State Government. The law in this regard is well settled in Balco Employees' Union (Regd.) (supra), wherein, upon discussing the earlier decisions in this regard, the Hon'ble Supreme Court has laid down the law that economic policies are not amenable to judicial review, unless review, unless it can be demonstrated that the policy is contrary to any statutory provision or the Constitution, or if the policy decision is patently arbitrary, discriminatory or mala fide. In Col. A.S. Sangwan's case (supra), the Hon'ble Supreme Court has gone to the extent of stating that it is entirely within the reasonable discretion of the Government, either to stick to its earlier policy or to give it up, but one imperative of the Constitution implicit in Article 14 is that if policy is changed, it must done fairly and not arbitrarily. In N. Balakrishna's case (supra), it is categorically held that the rules of limitation are not meant to destroy the rights of the parties, rather they are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly. Thus the submission of learned counsel for the respondent company, that the Rule 4.3 (Gha) (1) and (2) of the 2003 Rules, destroys or curtails the substantive right conferred by the Industrial Policy, 2001, has no legs to stand in view of the law laid down by the Hon'ble Supreme Court of India, as discussed above. Indeed, the Hon'ble Apex Court has gone to the extent stating that even if the matter is governed by the general law of limitation under the Limitation Act of 1963, the separate provision for prescribing limitation could still be made. In Shivam Coke Industries case, (supra), relied upon by the learned counsel for the respondent, it has been held that the Limitation Act applies to Courts and not to quasi-judicial authority. It is not in dispute that the Secretary / Director of Industries, while exercising the power under Rule 4.3 (Gha) (2) of the 2003 Rules, act as a quasi-judicial authority. As such, the contention of the learned counsel for the respondent, that the claim of interest subsidy being a money claim, it would be governed by the general laws of the Limitation Act, 1963, cannot be accepted, as the Limitation Act, 1963, shall have no application in the present case. Accordingly, it was absolutely necessary for the State Government to make the provision for limitation separately and specifically, if it intended to do so. Jharkhand Industrial Policy, 2001, not being a creation of the Legislature, and having been framed by the State Government in exercise of the executive power, the State Government was quite competent to frame yet another policy making the provision for limitation separately and specifically, which has been done by framing the 2003 Rules."

3. Such observations made by the Hon'ble Division Bench is contrary to, what has been held by the Hon'ble Supreme Court in the case of State of Orissa and Ors. Vs. Tata Sponge Iron Ltd. reported in (2007) 8 SCC 189. and in an earlier judgment of the Hon'ble Supreme Court in the case of State

of Bihar and Ors. Vs. Suprabhat Steel Ltd. and Ors. reported in(1999) 1 SCC 31, wherein it has been held that the 'operational guidelines' which provides limitation or time period for sale tax incentives is a sub delegated legislation and the delegator may also effectively amend and supplement the legislation, which it is clearly incompetent to do so. The same view has been taken by the Hon'ble Supreme Court in the earlier judgment arising from the Hon'ble High Court of Judicature at Patna.

4. In that view of the matter, we do not agree with a view taken by the Division Bench and therefore, referred it to a larger Bench of three Judges.

5. Registry is directed to take instructions.

(S.K. Mishra, C.J.)

(Ananda Sen, J.) Anjali/Madhav/-