Below is the order:
Jharkhand High Court
Usha Martin Limited vs State Of Jharkhand on 27 June, 2022
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 3352 of 2013 ——–
Usha Martin Limited, a company, duly incorporated under the provisions of the Companies Act, 1956, having its Registered Office at 2A Shakespeare Sarani, Kolkata (WB) and its Industrial unit situated at Phase-5, Adityapur Industrial Area, Gamharia, Saraikela-Kharsawan, P.O. & P.S. Gamharia, District Saraikela-Kharsawan (Jharkhand), through its Asst. Vice President Nand Kishore Patodia, Son of Late R.D. Patodia, Resident of Deputy Para, P.O. Kutchery, P.S. Lalpur, District Ranchi-834001.
… Petitioner Versus
1.State of Jharkhand, through the Secretary, Department of Industries, Government of Jharkhand, having his Office situated at 3rd Floor, Nepal House, P.O & P.S. Doranda, District Ranchi.
2.Director of Industries, Government of Jharkhand, having his Office situated at 3rd Floor, Nepal House, P.O & P.S. Doranda, District Ranchi.
3.Joint Director of Industries, Government of Jharkhand, having his Office situated at 3rd Floor, Nepal House, P.O & P.S. Doranda, District Ranchi.
4.Deputy Director of Industries, Government of Jharkhand, having his Office situated at 3rd Floor, Nepal House, P.O & P.S. Doranda, District Ranchi. … Respondents
CORAM:HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD
For the Petitioner : Mr. Dipak Kumar, Advocate For the Respondents : Mr. Shreenu Garapati, S.C. III Mr. Sudharshan Kumar Singh, A.C to S.C. III
Order No.8/Dated 27th June, 2022 The instant writ petition, under Article 226 of the Constitution of India, has been filed seeking following reliefs:
(a).For quashing and setting-aside the Order dated 25.07.2012 contained in Memo No. 2302 dated 25.07.2012 (Annexure-11) passed by Director of Industries (Respondent No. 2), whereby and whereunder the Respondent No. 2, in a quite arbitrary and illegal manner and in complete disregard of the provisions of the Jharkhand Industrial Policy Act, 2001, has rejected the Application of the petitioner under the “Jharkhand Udyogik Protsahan Niyamawali, 2003”, filed for grant of Capital Investment Subsidy on the ground that the Screening Committee constituted under the Chairmanship of Chief Secretary vide its meeting dated 31.05.2012 has found that the application for capital investment subsidy has been filed by the Petitioner after 8 years from the date of start of commercial production and 19 months from the date of issuance of certificate and hence recommended for rejection of the application.
(b).For a direction upon the concerned Respondent to immediately grant aforesaid Capital Investment Subsidies as applied by the Petitioner before the Competent Authority of the Respondent Department for grant of Capital Subsidy as provided under the “Jharkhand Industrial Policy Act, 2001” and in “Jharkhand Udyogik Protsahan Niyamawali, 2003”.
- The brief facts of the case, as per the pleadings made in the writ petition, is that the State of Jharkhand came out with an Industrial Policy known as “Jharkhand Industrial Policy Act, 2001” vide Notification No. 1888 dated 25.08.2001 making therein, inter alia, the provisions for encouraging the existing Industrial Units, who have expanded/modernized/diversified their units on 15.11.2000 or thereafter. After promulgation of the aforesaid Industrial Policy, the State in order to implement the aforesaid policies notified a rule known as “Jharkhand Udyogik Protsahan Niyamawali, 2003”.
It is the case of the petitioner that the writ petitioner submitted application seeking benefit under the said Industrial Policy for Capital Investment Subsidy but the same was rejected vide order dated 25.07.2012 ascontained in Memo No. 2302 on the ground that the Screening Committee constituted under the Chairmanship of Chief Secretary vide its meeting dated 31.05.2012 has found that the application for capital investment subsidy filed by the petitioner after 8 (eight) years from the date of commencement of commercial production and 19 months from the date of issuance of certificate.
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Mr. Shreenu Garapati, learned S.C. III appearing for the respondents-State of Jharkhand has submitted that the issue has already been decided by the Division Bench of this Court in L.P.A. No. 211 of 2012 vide order dated 13.06.2018, wherein this Court, after taking into consideration the period of limitation, i.e., filed after the period of six months, since the claim of the respondent/writ petitioner of the said Letters Patent Appeal has been rejected, herein also, the case of writ petitioner has been rejected since application for seeking the leave under the aforesaid policy decision has been filed after the period of six months.
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Mr. Dipak Kumar, learned counsel for the petitioner has not disputed the fact about submission of application after the period of six months as also the order passed by the Division Bench of this Court in L.P.A. No. 211 of 2012.
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This Court has heard learned counsel for the parties and perused the documents available on record and found therefrom that Clause 5 of the „Jharkhand Mega Project Incentive Rule, 2005‟ enumerates the methodology/procedure for „Capital Investment Subsidy‟ made by the Mega Industries, which prescribed the time period of six months for submitting such application. The Clause 5 thereof reads as under:
“An application for claiming Capital Investment Subsidy under the said rules should be made in the application form prescribed for the purpose as specified in Schedule-A along with the prescribed enclosures within six months from the date of commercial production or the Incentive Rules coming into force, whichever is later, to the Director of Industries.”
This Court has found from the pleadings made by the parties that admittedly the application seeking, benefit under the aforesaid policy decision of the State Government, was submitted by the petitioner after the period of six months i.e., after delay of eight years from the date of start of commercial production.
- This Court, therefore, is of the considered view that once the party seeking benefit of policy decision he has to abide by other conditions stipulated in such policy decisionreason being that one cannot be allowed to observe a condition contained therein while deny to observe the other condition, otherwise it will be contrary to the principle that at the same time there cannot be approbate and reprobate and the writ petitioner cannot be allowed to act by accepting the one part of the policy decision and declining to accept the other part which is contrary to the position of law, as has been held by the Hon‟ble Apex Court in the case of R.N. Gosain vs. Yashpal Dhirreported in (1992) 4 SCC 683 wherein at paragraph 10 which reads hereunder:
“10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that “a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage”. [See : Verschures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd, Scrutton, L.J.] According to Halsbury‟s order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside”. (para 1508)”
In State of Punjab and Ors. vs. Krishan Niwas, AIR 1997 Supreme Court 2349 the Hon’ble Apex Court at paragraph-4 has laid down that once the employee has accepted the correctness of the order and then acted upon it, the same cannot be questioned by the concerned.
(2018) 10 SCC 707 the Hon’ble Apex Court at paragraphs 12 & 13 has laid down which reads as hereunder:
“12. A litigant can take different stands at different times but cannot take contradictory stands in the same case. A party cannot be permitted to approbate and reprobate on the same facts and take inconsistent shifting stands. The untenability of an inconsistent stand in the same case was considered in [Amar Singh v. Union of India Amar Singh v. Union of India, (2011) 7 SCC 69 : (2011) 3 SCC (Civ) 560] , observing as follows: (SCC p. 86, para 50) “50. This Court wants to make it clear that an action at law is not a game of chess. A litigant who comes to court and invokes its writ jurisdiction must come with clean hands. He cannot prevaricate and take inconsistent positions.”
- A similar view was taken in Joint Action Committee of Air Line Pilots’ Assn. of India v. DGCA [Joint Action Committee of Air Line Pilots’ Assn. of India v. DGCA, (2011) 5 SCC 435] , observing: (SCC p. 443, para 12) “12. The doctrine of election is based on the rule of estoppel–the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. … Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily.””
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This Court, therefore, is of the view that if the application filed beyond the period of six months, which is against the policy decision, and in the case in hand it has been filed after eight years and the respondents-authorities taking into consideration these aspects of the matter has rejected the claim of the petitioner requires no interference.
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Similar issue and on similar ground the Division Bench of this Court in L.P.A. No. 211 of 2012 vide order dated 13.06.2018 has rejected the claim of the petitioner in that case. Herein also, the order passed by the concerned- authority declining to interfere with the decision in a case where application has been filed beyond the period of six months has been declined to be interfered with.
This case has been filed for issuing writ of certiorari but the writ of certiorari is only to be issued where the order impugned is without jurisdiction or finding is perverse or the finding of fact is based on no evidence, as has been held by Hon‟ble Apex Court in the case of Syed Yakoob Vrs. K.S. Radhakrishnan & Ors, reported in A.I.R. 1964 SC 477, wherein at paragraph no. 7 their Lordships have been pleased to held as follows:-
“7.The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal Acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point 11 and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised.”
In another judgment of Hon’ble Apex Court in the Case of Sawarn Singh & Anr. Vrs. State of Punjab & Ors reported in (1976) 2 SCC 868 their Lordships while discussing the power of writ under Article 226 for issuance of writ of certiorari has been please to hold at paragraph nos.12 and 13 as under:
“12. Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the High Court in writ proceedings under Article 226. It is well settled that certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under Article 226 is not entitled to act as an appellate court. As was pointed out by this Court in Syed Yakoob case, “this limitation necessarily means that findings of fact reached by the inferior court or tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be.” “13.In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice.”
Likewise, in the case of Pepsico India Holding Private Limited Vrs. Krishna Kant Pandey reported in (2015) 4 SCC 270 their Lordships while discussing the scope of Article 226 and 227 of the Constitution of India in the matter of interference with the finding of the tribunal has been pleased to hold by placing reliance upon the judgment rendered in the case of Chandavarkar Sita Ratna Rao Vrs. Ashalata S. Guram reported in (1986) 4 SCC 447 at paragraph 14 has held as under:-
“14.While discussing the power of the High Court under Articles 226 and 227 of the Constitution interfering with the facts recorded by the courts or the tribunal, this Court in Chandavarkar Sita Ratna Rao v. Ashalata S. Guram [(1986) 4 SCC 447] , held as under:
“17. In case of finding of facts, the Court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be made to the observations of this Court in Bathutmal Raichand Oswal v. Laxmibai R. Tarta [(1975) 1 SCC 858 : AIR 1975 SC 1297] where this Court observed that the High Court could not in the guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal. The High Court was not competent to correct errors of facts by examining the evidence and reappreciating. Speaking for the Court, Bhagwati, J. as the learned Chief Justice then was, observed at AIR p. 1301 of the Report as follows:
„7. The special civil application preferred by the appellant was admittedly an application under Article 227 and it is, therefore, material only to consider the scope and ambit of the jurisdiction of the High Court under that article. Did the High Court have jurisdiction in an application under Article 227 to disturb the findings of fact reached by the District Court? It is well settled by the decision of this Court in Waryam Singh v. Amarnath [AIR 1954 SC 215] (AIR p. 217, para 14) that the “power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee [AIR 1951 Cal 193] , to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors”.
This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bora v. Commr. of Hills Division [AIR 1958 SC 398] and it was pointed out by Sinha, J., as he then was, speaking on behalf of the Court in that case: (AIR p. 413, para 30) “30. … It is, thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi- judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority.”
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This Court, taking into consideration the factual aspects and since the order impugned has been passed taking into consideration the condition stipulated under the relevant policy decision of the State Government, wherein condition has been stipulated that the application was to be made within the period of six months but admittedly the application has been filed after eight years, is of the view that it is not a case where this Court is to exercise the power to issue writ of certiorari showing interference with the decision taken by the respondents-authorities.
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Accordingly, the writ petition lacks merit and is dismissed.
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Consequent upon dismissal of the writ petition, the Interlocutory Application I.A. No. 6535 of 2013 also stands dismissed.
(Sujit Narayan Prasad, J.) Alankar/-
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