M/S Apex Pet Products Pvt. Ltd vs The State Of Bihar And Ors
2023 Latest Caselaw 938 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                      Civil Writ Jurisdiction Case No.15633 of 2018
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M/s Apex Pet Products Pvt. Ltd. through its Managing Director namely Deepak Kumar Singh, Son of Late Ram Anootha Singh, resident of Mohalla- Veer Kunwar Singh Colony (Pokhara Mohalla), Police Station- Hajipur Town in the district of Vaishali.

... ... Petitioner/s Versus

1. The State Of Bihar

2. The Chief Secretary, Government of Bihar, Patna.

3. The Principal Secretary, Industry Department, Government of Bihar, Patna.

4. The Secretary, Department of Excise, Government of Bihar, Patna.

5. The Director, Department of Industry, Government of Bihar, Patna.

6. The General Manager, District Industry Centre, Vaishali at Hajipur.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Sunil Kumar, Advocate Mr. Sriram Krishna, Advocate For the Respondent/s : Mr. Akash Chaturvedi, AC to SC-11 ====================================================== CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH ORAL JUDGMENT Date : 27-02-2023

Heard Mr. Sunil Kumar assisted by Mr. Sriram

Krishna, learned counsel appearing on behalf of the petitioner

and Mr. Akash Chaturvedi, learned counsel appearing on behalf

of the State.

2. In the present writ petition, the petitioner has

prayed for following relief(s):

"I. For quashing the letter contained in Memo No. 3573 dated 23.11.2017 only to the extent of the petitioner by which the claim of the petitioner for payment of Subsidy amount Rs. 29,58,069/- against the investment made in establishment of the Unit as per the Bihar Industrial Incentive Policy, 2011 has been rejected merely on the ground that investment proposal was not Patna High Court CWJC No.15633 of 2018 dt.27-02-2023

approved by the competent authority.

II. Also to direct the respondents to make payment of compensation amount Rs. 6 Crores to the petitioner as due to all of a sudden announcement of banned on whole sale and retail trade and consumption of Foreign Liquor/country made liquor in State of Bihar by the State respondents, the production of Pet-Preform (row material for Pet-Bottles) of the petitioner's Unit has been badly effected as due to announcement of Band on Foreign/country made liquor the demand of Pet- Preform as well as Pet-Bottles has been badly effected in the State of Bihar and due to which the petitioner has suffered economically allot.

III. Also for any other relief/reliefs for which the petitioner is found in the eye of law."

3. Learned counsel appearing on behalf of the

petitioner submitted that the petitioner's unit came into

production in the year 2014 and as per the Industrial Policy

2011, the petitioner was also given subsidy by the Industries

Department, Government of Bihar, thereafter, the petitioner

made a proposal for expansion of his unit and invested around

Rs. 2 crores for increasing capacity of existing unit from 700

mt. to 1200 mt per day capacity of Pet-preform unit situated at

Hajipur. A meeting was held on 31.08.2015 in which incentive

was to be considered separately by the concerned department as

per the policy. In support of the said contention, the petitioner

referred to Annexure-5, a later received from the Director,

Technical Development, Bihar, Patna. The petitioner has been

denied subsidy even after he has increased production and

invested a huge amount only on the ground that the competent Patna High Court CWJC No.15633 of 2018 dt.27-02-2023

authority for disbursement of subsidy has not approved the

project in terms of Clause 2.2 of the Notification dated 128

dated 16.01.2006 which was enforced even after 2011 Policy. In

view of the said Clause 2.2 a proposal above of Rs. 1 crores are

required to be placed before the State Investment Promotion

Board (SIPB). Learned counsel further submitted that for the

first time the said objection has been raised in counter affidavit

filed by the respondent-State to deny the legitimate subsidy to

the petitioner in garb of the present excise policy which has

been introduced in the year 2016.

4. Learned counsel in support of his contention has

relied on a judgment dated 13.08.2019 passed in CWJC No.

2672 of 2017 and submitted that the law is well settled that the

respondent State cannot deny the incentive on the principle of

promissory estoppel as laid down in the judgment relied upon

including the one rendered in the case of M/s Suprabhat

Industry Steel Ltd. Vs The State of Bihar reported in 1995 (2)

PLJR 536 (DB), which was later affirmed by the Apex Court

reported in (1999) 1 SCC 31. The respondent-State therefore

cannot turn around and reject the claim without communicating

any reason for such rejection and for the first time has made

frivolous/misconceived statement in the counter affidavit in Patna High Court CWJC No.15633 of 2018 dt.27-02-2023

support of the denial.

5. Per contra, learned counsel appearing on behalf

of the respondent submitted that since the competent authority

has not approved the case of the petitioner for grant of

incentives the case of the petitioner has been rejected. In support

of the contention learned counsel has not brought even a chit of

paper that such objection was ever raised before enactment of

Bihar Prohibition and Excise Act, 2016 or at any point of time

the same was any authority of the State.

6. Having considered the rival submissions of the

parties and materials available on record, it is admitted that the

petitioner has made proposal for extension of his unit in terms

of 2011 policy to enhance the production from 700 MT to 1200

MT and the said fact is supported by several communication and

the internal communication made between the parties or

between the different departments of the State. It is also

admitted that petitioner has invested a total amount of Rs.

1,47,90,349/- on which account he claims that he is liable for

total amount of Rs. 29,58,089/- of subsidy.

7. In view of the judgment passed by the Apex

Court in case of M/s Suprabhat Industry Steel Ltd. Vs The State

of Bihar reported in (1999) 1 SCC 31, the State having made an Patna High Court CWJC No.15633 of 2018 dt.27-02-2023

investment in terms of the Industrial Policy, 2011 to the extent

that incentive benefit to the parent industries and the petitioner

have been made expansion fulfill the criteria for drawing the

incentive. The respondent-State cannot deny the incentive on the

principle of Promissory estoppel as laid down in M/s Suprabhat

Industry Steel Ltd. Vs The State of Bihar (supra).

8. In such circumstances, this Court directs that

State Government particularly the Industries Department and all

the concerned departments including the State Taxes

Department to ensure that other incentive to which the petitioner

is found entitled under Industrial Policy, 2011 shall be accorded

to him within maximum period of two months. Taking into

account as a result of total prohibition in the State after coming

into force of Bihar Prohibition and Excise Act, 2016, the

petitioner has been forced to wind up his industry and has to

incurred loss of Rs. Six crores.

9. With the above observations and directions, the

present writ petition is disposed of.

                                                 (Purnendu Singh, J)
manish/minu
AFR/NAFR                NAFR
CAV DATE                N.A
Uploading Date          01.03.2023
Transmission Date       01.03.2023