TMI Blog2006 (3) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... r deferment of payment of sales tax would be given to such an industrial undertaking. The said scheme had been framed in pursuance of Government Resolution dated January 27, 1993. The scheme was modified from time to time by (1)Oral. issuance of subsequent Resolutions, but the basic features of the scheme had been retained. Condition (f) was added to clause 7 of the scheme by virtue of the the Government Resolution dated June 13, 1994, whereby the scheme was modified to the effect that the industrial undertaking availing of benefit under the scheme had to run the wind farm satisfactorily at least for six years from the date of commissioning the same, and if the wind farm is not run satisfactorily for six years from the date of its commissioning, the sales tax benefits availed of by the industrial undertaking would be recovered from it by the State. In pursuance of the aforesaid scheme announced by the State, the petitioner, an industrial undertaking, had set up a wind farm for generation of electricity and started its operation on January 31, 1995. The fact with regard to setting up of the wind farm had been conveyed to the Government authorities and the petitioner-undertakin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receipt of the said notice, under letter dated June 22, 2000, the petitioner gave reply to respondent No. 3 stating that it had erected two windmills in its wind farm in pursuance of the scheme and out of six, the petitioner had already paid four instalments of tax which had become due and payable before June 22, 2000. The petitioner had mainly submitted in the said reply that the benefit given to it under the scheme should not be withdrawn as the windmills erected by it had been completely destroyed due to the cyclone, which was a natural calamity, for which the petitioner was in no way responsible. The petitioner had also made a grievance that looking to the extent of damage caused to the petitioner due to the natural calamity, the Government should have offered some sort of help or relief to the petitioner, rather than calling upon it to show cause as to why the benefit given to it should not be withdrawn because, normally, the Central and State Governments give relief to those who are adversely affected due to natural calamities, but, instead of giving any help, the petitioner was put to more difficulties by the impugned action. Till today, no final decision has been taken i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uary 31, 2001, the petitioner had committed breach of the aforesaid condition and, therefore, it was not entitled to any benefit under the eligibility certificate dated November 5, 1996, which is at annexure E to the petition. We have heard learned advocate Shri Nayan Sheth appearing with learned Advocate Shri Tanvish Bhatt for the petitioner and learned Assistant Government Pleader Shri Hasit Dave for the respondent-authorities. It has been mainly submitted on behalf of the petitioner that it is an admitted fact that the petitioner could not continue to generate electricity up to January 31, 2001 on account of the destruction caused by the cyclone on June 9, 1998. He has further submitted that till the windmills had been destroyed due to the cyclone, electricity generated by the windmills was being regularly supplied to GEDA and no default was ever committed by the petitioner in respect of supply of electricity generated by it with the help of its two windmills. According to him, the default occurred only on account of the cyclone because the windmills had been completely destroyed due to the cyclone. There was no intention on the part of the petitioner to disconti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of six years, that is, up to January 31, 2001, and as the petitioner did not comply with the said condition, the benefit cannot be given to it and, therefore, the impugned orders are just, legal and proper. It has been further submitted by him that the petitioner has already filed an appeal and after having resorted to an equally efficacious alternative statutory remedy available under the provisions of the Gujarat Sales Tax Act, 1969 (hereinafter referred to as the Act ), the petitioner ought not to have rushed to this court with a petition and, therefore, the petition deserves to be dismissed. We have heard the learned Advocates at length and have also gone through the record pertaining to the case, including the resolutions passed by the Government from time to time in relation to the scheme and about its policy with regard to giving benefits to those who generate electricity by setting up wind farms. It is not in dispute that the petitioner had initially fulfilled all the conditions, which were required to be fulfilled, as per the eligibility certificate dated November 5, 1996 issued to it whereby composite benefit was granted to the petitioner in respect of pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinue generation of electricity after availing of benefit under the scheme. We are conscious of the fact that very often unscrupulous persons and corporate bodies take undue advantage of a scheme or policy framed for a noble cause. In the beginning they fulfil the conditions and thereafter they commit breach of the conditions and as a result of which the laudable purpose with which the scheme is framed, is frustrated. If such a dishonest tax-payer commits breach of any of the conditions incorporated in the scheme, the State should not give any tax benefit or tax holiday to such an unscrupulous tax-payer. Only with an intention to see that after erection of windmills, an industrial undertaking availing of benefit does not stop generation of electricity, the aforestated clause 7(f) had been incorporated in the scheme subsequently. So, the intention was to see that the industrial undertaking availing of the benefit does not commit default by stopping generation of electricity before completion of six years. In other words, it was obligatory to generate electricity for a continuous period of six years so as to avail of the benefit under the scheme. Looking to the language employed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do. If there is an impossibility on the part of a person to perform an obligation, law would not expect the person to do that impossible thing. The said maxim, which has been accepted by our judicial system, has been very well explained in Broom's Legal Maxims (10th Edition) as under: It is, then, a general rule which admits of ample practical illustration, that impotentia excusat legem; where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over, there the law will in general excuse him (t): and though impossibility of performance is in general no excuse for not performing an obligation which a party has expressly undertaken by contract, yet when the obligation is one implied by law, impossibility of performance is a good excuse... The aforesaid maxim has also been explained in Craies on Statute Law (7th Edition): Under certain circumstances compliance with the provisions of statutes which prescribe how something is to be done will be excused. Thus, in accordance with the maxim of law, lex non cogit ad impossibilia, if it appears that the performance of the formalities prescribed by a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our opinion, there is no reason for cancelling the same as the petitioner has not committed any default deliberately, which would result into cancellation of the eligibility certificate. In view of the aforestated reason also, in our opinion, the petitioner could not have been denied the benefit, which it had availed of under the eligibility certificate. We also would like to add that whenever there is any beneficial legislation or any scheme giving certain benefit to anyone, the scheme should be interpreted so as to make its objective more effective and not in a manner which would frustrate the objective. In the instant case, the State wanted generation of additional electricity and under the scheme, the said task had been partly taken over by the petitioner and in fact the petitioner generated electricity as long as it was in a position to do so. The scheme, being framed not only for the benefit of the State but also for the entities like the petitioner, it ought to have been interpreted in a liberal manner. It is also pertinent to note that the benefit, which had already been availed of by the petitioner, is sought to be taken back after several years. The devastating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r view, the State of Gujarat should not deprive the beneficiary of the benefits already granted to it. We firmly believe that it becomes duty of the State to help such units in mitigating the sufferings instead of pushing them into more pitiable condition. It is true that the petitioner has already availed an equally efficacious alternative remedy available to it under the provisions of the Act by preferring an appeal before respondent No. 6. The said appeal is still pending and, therefore, the learned Assistant Government Pleader has submitted that the petition should not be entertained. We do not agree with the above submission for the reason that by an order dated February 12, 2004, the bank account of the petitioner-industrial undertaking had been attached and the petitioner was put to more difficulties because it was unable to operate its account. It is possible that the petitioner could not have made grievance with regard to such a drastic action before the statutory authorities in a most effective manner. In the circumstances, the petitioner must have been constrained to approach this court. It is also pertinent to note that a representation had been made to the State ..... X X X X Extracts X X X X X X X X Extracts X X X X
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