9911796707
TMI Blog2016 (12) TMI 1770X X X X Extracts X X X X X X X X Extracts X X X X ..... to be quashed and the same is hereby quashed and it is directed that the petitioner company would continue to be given increased rebate/subsidy of 75% of the additional tax liability under the notification dtd. 2.12.2005 for a period of 7 years in pursuance of Entitlement Certificates already issued in its favour for both the units at Ras, Pali and Bhiwadi, Alwar and withdrawal notification dtd. 28.4.2006 and clarification dtd. 22.5.2008 would not come in way of the petitioner company in getting such increased rebate/subsidy. The respondents shall release the arrears of such subsidy and allow set off thereof of against additional tax liability within a period of one month from today failing which the petitioner company would be entitled to interest also thereon @9% per annum. Cost are however made easy." 2. In D.B. Civil Special Appeal (Writ) No. 644/2012 preferred by the appellant Shree Cement Company Ltd. the company has prayed for reliefs, in addition to the relief granted in the judgment dated 11.10.2011 passed in SB Civil Writ Petition No. 4790/2009 and specifically prayed for following directions: "As per submissions made herein above, the Appellants respectfully prayed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder to the Assessing Authority to make a reassessment of tax liability and to take steps to recover tax in excess of its eligibility in terms of the new Eligibility Certificate to be issued by SLSC, so also, challenged the clarification of the Finance Department (Tax Division) dated 22.5.2008. 4. As per the facts of the case, the Government of Rajasthan with a view to encourage investment in the State of Rajasthan promulgated a Scheme know as 'Rajasthan Investment Promotional Scheme' on 28.7.2003 (RIPS-2003). The said scheme came into force w.e.f. 1.7.2003 and remained in force upto 31.3.2008, but later on, extended upto 31.3.2009 by amendment dated 15.3.2007 and further extended upto 31.3.2011 vide amendment order dated 6.8.2008. The RIPS-2003 was amended from time to time and vide amendment dated 22.10.2003, subsidy upto 75% was provided for higher investment and it was further amended on 2.12.2005, whereby the sub-clause (vi) and (vii) to Clause 7 were inserted in the RIPS-2003 whereby 75% subsidy to the new and existing cement unit, which were under expansion upon fulfilling certain conditions envisaged in the same clause was allowed. The petitioner-respondent Shree C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficate under clause 7(vii) of RIPS-2003. While doing so, the SLSC considered that options were registered within limitation period as per notification dated 2.12.2005 when it was in full force prior to premature amendment dated 28.4.2006 whereby the clauses 7(vi) and (vii) were deleted. The SLSC issued entitlement certificate No. 2/66 dated 27.6.2007 for a period of seven years from 26.3.2007 to 25.3.2014 in favour of the petitioner-respondent Shree Cement Company Ltd. According to the petitioner-respondent Shree Cement Company Ltd. the subsidy was granted upto 75% till April, 2008 including upfront subsidy of 45% and remaining 30% of interest and wages/employment subsidy over and above, additional tax generated due to expansions made by the petitioner-respondent Shree Cement Company Ltd. 8. The Finance Department, Government of Rajasthan on 22.5.2008 issued amendment order putting the cement plant of capacity above 200 MT. per day both new and expansions in negative list, making it ineligible for subsidy under RIPS-2003 and simultaneously issued a "clarification" dated 22.5.2008 stating therein that there is some ambiguity with regard to the interpretation of admissibility of sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing both the applications dated 18.7.2008 submitted by the Commissioner, Commercial Taxation and quashed the orders of SLSC dated 29.7.2006 and 27.6.2007 for expansions made by the company granted under clause 7(vii) of RIPS-2003 and issued directions to the SLSC to reconsider and issue new eligibility certificate to the extent that only original dispensation existing prior to amendment dated 2.12.2005 in the scheme. The assessing authority also directed to make re-assessment of the tax liability and take steps to recover tax paid in excess of new eligibility certificate issued by the SLSC. 12. Being aggrieved with the decision of PSF dated 31.3.2009, the petitioner-respondent Shree Cement Company Ltd. preferred writ petition being No. 4790/2009 challenging the said order. 13. In the writ petition, a detailed reply was filed by the appellant State of Rajasthan, but learned Single Judge quashed the order dated 31.3.2009, which is under challenge in the special appeal No. 1719/2011 filed by the State of Rajasthan. 14. The learned Sr. Advocate Sh. M.S. Singhvi, assisted by Sh. Hemant Dutt vehemently argued that findings given by the learned Single Judge for quashing the order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , but it is not correct that amendment in the scheme for grant of subsidy 40% to 75% was made to satisfy any assurance to the company. It is true that on 2.12.2005 sub-clauses (vi) and (vii) were inserted in clause 7 of RIPS, 2003 whereby it was provided that amount of subsidy shall be subject to maximum of 75%. The petitioner-respondent Shree Cement Company Ltd. submitted option for expansion of the unit at Ras, Tehsil Jaitaran where commercial production in the said first unit was commenced from 17.12.2005 and tax on commercial production was paid for the first time on 21.12.2005. The petitioner-respondent Shree Cement Company Ltd. moved an application to the SLSC for grant of subsidy under RIPS, 2003 on 10.12.2005. While inviting attention towards the fact that petitioner-respondent Shree Cement Company Ltd. moved an application to SLSC for availing benefit under the amendment notification dated 2.12.2005 showing investment of Rs. 450 crores and stated that commercial production likely to commence in the year 2007 on 9.2.2006, the petitioner-respondent Shree Cement Company Ltd. submitted option for grant of subsidy under the amended notification dated 2.12.2005 for setting up a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e observing in the judgment impugned that subsidy can be claimed as a matter of right under the scheme framed by the Government. 18. While inviting attention towards the pleadings, it is submitted that there is no foundation in the writ petition that any investment was planned by the petitioner-respondent Shree Cement Company Ltd. only on the basis of notification dated 2.12.2005. It was the duty of the petitioner-respondent Shree Cement Company Ltd. to plead all correct facts, when project was conceived and the same was finalize, therefore, in absence of such pleadings, the petitioner-respondent Shree Cement Company Ltd. was not entitled to claim subsidy as a matter of right under the amendment made in RIPS, 2003 vide notification dated 2.12.2005. It is also argued that no minimum subsidy was ensured, which is evident from the scheme itself, which is only subject to maximum limit of 75%. In the clauses of scheme, it is specifically mentioned that amount of subsidy shall be subject to maximum limit of 75%, therefore, on this count also, the petitioner-respondent Shree Cement Company Ltd. is not entitled for any relief for subsidy upto 75%. 19. Learned counsel for the appellant su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue losses because the investment carried out by the petitioner-respondent Shree Cement Company Ltd. in the first phase was approximately Rs. 303.91 crores and in the second phase, it was approximately Rs. 683.38 crores. On other hand, the benefit availed by the petitioner-respondent Shree Cement Company Ltd. under the head of subsidy comes to Rs. 353.44 crores, if 75% of subsidy as ordered by the learned Single Judge is to be granted then the additional burden of approximate Rs. 250 crores is to be paid by the State Government. In view of the above, it is submitted that the finding given by the learned Single Judge in the judgment impugned for restoring the order passed by the SLSC deserves to be quashed because as per the provisions of the scheme neither any vested right created to the petitioner-respondent Shree Cement Company Ltd. nor the principle of promissory estoppel can apply to maintain the order passed by the SLSC, but learned Single Judge committed grave error while quashing the order passed by the revisional authority vide order dated 31.3.2009. The learned counsel for the appellant-State invited attention of this Court towards various judgments to substantiate his argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 75% of the sales tax) and the same is founded and based on three distinct pillars, each of which stands on its own, independent to the other two pillars, therefore, even if one of three pillars remains intact and standing, then petitioner-respondent Shree Cement Company Ltd. would be entitled to grant subsidy in pursuance of certificate issued by SLSC. 23. Learned counsel for the petitioner-respondent Shree Cement Company Ltd. submits that on promissory estoppel, the learned Single Judge has rightly quashed the order passed by the Secretary, Finance dated 31.3.2009. While inviting attention towards the fact, it is submitted that on representations filed by the petitioner-respondent Shree Cement Company Ltd. to the Chief Minister, Government of Rajasthan, meetings were held with the Chief Minister on 7.2.2005, 7.5.2005 and 21.5.2005 and in the budget speech on 24.3.2005, the factual report was submitted on the basis of request made by the petitioner-respondent Shree Cement Company Ltd., thereafter, 75% subsidy was made available to the petitioner-respondent Shree Cement Company Ltd. with certain conditions. The petitioner-respondent Shree Cement Company Ltd. had established its cem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xercised option and proceeded on footing when Clauses 7(vi) and (vii) were part of RIPS, 2003. The deletion of sub-clauses (vi) and (vii) on 24.4.2006 do not in any manner interfered with or affect the pre-existing vested and crystallized rights of petitioner-respondent Shree Cement Company Ltd. to get 75% subsidy in terms of options already exercised and registered to avail benefit under said sub-clauses. According to the learned counsel for the petitioner-respondent Shree Cement Company Ltd. the impugned revisional order dated 31.3.2009 by which the orders of SLSC dated 29.7.2006 and 27.6.2007 were quashed was per-se not only contrary to law but bad in law, therefore, the said revisional order is null and void. The learned Single Judge accepted the plea of preexisting, vested and crystallized rights upon which SLSC issued the certificate for grant of subsidy upto 75%, therefore, the judgment impugned in this appeal is perfectly in consonance with law. 25. Learned Senior Counsel Sh. S. Ganesh submits that even if one of the above pillars remained intact and standing, then petitioner-respondent Shree Cement Company Ltd. would be entitled to 75% subsidy eve if the two other pillars ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as the petitioner-respondent Shree Cement Company Ltd. and in support of their grounds, number of judgments have also been cited by both the parties. We have considered the arguments as well as the written submissions filed by both the parties, so also, perused the judgments cited by both the parties. 28. The learned Senior counsel Sh. S. Ganesh assisted by Sh. Ramit Mehta, Advocate invited our attention towards following judgments in support of their grounds of promissory estoppel, legitimate expectation, vested right, exercising impermissible revisional jurisdiction and contemporaneous exposition to quash the decision of Principal Secretary, Finance dated 31.3.2009 whereby Principal Secretary quashed and set aside the eligibility certificate dated 29.7.2006 and 27.6.2007 whereby SLSC granted subsidy upto 75% in pursuance of Clause 7(vi) and (vii) of the RIPS, 2003. The judgments on the aforesaid grounds are as follows: A. PROMISSORY ESTOPPEL AND LEGITIMATE EXPECTATION: i. State of Rajasthan & Anr. v. Surendra Mohnot & Ors. 2014(14) SCC 77 ii. Dai-ichi Karkaria Ltd. v. Union of India & Ors. 2000(4) SCC 57 iii. Motilal Padampat Sugar Mills Co.(P) Ltd. v. State of Ut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent manufacturing units in the State of Rajasthan, the State Government issued a scheme known as RIPS, 2003 vide notification dated 28.7.2003. The said scheme was operative w.e.f. 1.7.2003 to 31.3.2008. In the said scheme sub-clause (7) was inserted for providing subsidy to the eligible units making new investment during operative period of the said scheme in the form of interest subsidy and wage subsidy subject to a maximum limit of 50% of the tax payable and deposited under the Rajasthan Sales Tax Act, 1994 and the Central Sales Tax Act, 1956 and the Value Added Tax Act as and when introduced in the State. The Value Added Tax Act, 2003 came into force in the State of Rajasthan with effect from 1.4.2006, as per scheme in case of investment made for Modernization/Expansion/Diversification, the amount of subsidy shall be subject to a maximum of 50% of the additional amount of Rajasthan Sales Tax and the Central Sales Tax or VAT payable or deposited whichever is higher, in any of the three immediately preceding years known as base years. In the scheme, a proviso to Clause 7 (i)(b) was inserted, whereby it is provided that maximum limit of 50% prescribed under clause 7(i)(a) and claus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o such eligible units having made investment exceeding Rs. 200 crores with further condition that minimum regular employment of 100 persons. The petitioner-respondent Shree Cement Company made investment over Rs. 200 crores in aforesaid two expansion units at Pali and Bhiwadi and therefore, fell within the aforesaid clause 7 (vii) of the amending notification dated 2.12.2005. As per contention of petitioner-respondent Shree Cement Company Ltd. as per the condition No. 1 of clause 7 (vii), the investor was required to make an option before the Member Secretary of the SLSC to avail benefit under the Scheme within 180 days of aforesaid amendment. The petitioner- respondent Shree Cement company Ltd. exercised such option vide its letter dated 10.12.2005 immediately after the said amended notification vide its letter dated 30.1.2006 for its Ras Clinker unit situated in District Pali where as per the company, the Company has invested Rs. 285.98 crores upto 31.10.2005 as against total project cost of Rs. 490.41 crores. The said option for both the units was again reiterated vide communication dated 9.2.2006 addressed to the Commissioner of Industries, Member Secretary of SLSC, Jaipur for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a period of 7 years to start with commencement of commercial production/operation as per clause 4(b) of the Scheme. Further, held that the amount of subsidy will be subject to maximum limit of 75% of the additional tax (calculated by taking an average of last three years) deposited under RST Act, 1994/VAT and CST Act, 1956. Consequent to the aforesaid decision dated 29.07.2006 by the SLSC, an Entitlement Certificate was also issued to the petitioner-respondent Shree Cement Company Ltd. by Commissioner of Industries and Member Secretary of SLSC on 8.9.2006 for a period of seven years for the subsidy to the extent of 75% for first expansion unit of Pali. The SLSC again met on 27.6.2007 in which the case of second unit situated at Bhiwadi of the petitioner-respondent Shree Cement Company Ltd. was considered after about eleven months of the previous meeting. In the said meeting of SLSC comprising of higher authorities, namely, Commissioner, Commercial Taxes Department, Managing Director of RIICO, Dy. Secretary, Finance and Commissioner of industries considered the case of the petitioner-respondent Shree Cement Company Ltd. for its Kushkheda, Tehsil Bhiwadi grinding unit and in the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 75% was extended to the petitioner-respondent Shree Cement Company Ltd. under the entitlement certificate. 36. The petitioner-respondent Shree Cement Company Ltd. raised an objection that in the garb of said notification issued on 22.5.2008 the benefit already granted to the petitioner-respondent Shree Cement Company Ltd. cannot be withdrawn because as per principle of promissory estoppel, the vested right of the petitioner-respondent Shree Cement Company Ltd. cannot be withdrawn in casual manner. Upon receiving such objection, two revisions petitions under clause 13 of the RIPS, 2003 were filed by the Commissioner, Commercial Taxes Department before the Finance Secretary, Government of Rajasthan on 18.7.2008. In the revision petition, a prayer was made by the Commissioner, Commercial Taxes Department to invoke revisional powers to set aside decisions dated 29.07.2006 and 27.06.2007 of the SLSC under clause 13 of the RIPS, 2003, in which there was provision akin to section 263 of the Income Tax. 37. The Principal Secretary, Finance Department after providing an opportunity of hearing to the Commissioner, Commercial Taxes department as well as the petitioner-respondent Shree Cemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 41. On 22.10.2003, a provision was added for higher incentive at 75% through BIDI, in its discretion if the investment exceeded Rs. 200 crores. Inspite of above provision, no new cement unit come up in response to the above sales tax incentive limited by way of only wages subsidy and interest subsidy subject to actual. 42. According to respondent company, the entire cement industries in Rajasthan made appeal to the State Government that without 75% subsidy no new cement unit/plant is likely to come up in Rajasthan. According to respondent, the representative of the company met the Hon'ble Chief Minister in the month of April, 2004, and once again pointed out that Shree Cement Ltd. would be in a position to invest new cement unit only if 75% tax incentive is granted. According to respondent, the Hon'ble Chief Minister assured it, that its prayer will be considered for grant of said benefit and thereafter, relying upon the assurance of the Hon'ble Chief Minister, as recorded in the letter dated 15.05.2004, the respondent Company started incurring expenditure of civil construction and land acquisition/development from the month of April-May 2004 onwards. According to resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat incentive. The respondent company claimed its right up to 75% as per verdict of the Hon'ble Supreme Court in the case of Nestle reported in 2004 (6) SCC 465, in which a speech was made by the Chief Minister at a public gathering followed by the Budget Speech and while considering the speech given by the Chief Minister followed by Budget speech, held that it constitutes a promise and assurance by the State Government, on which the pea of promissory estoppel could be found. 46. Learned counsel for the appellant submitted that all the facts stated in the writ petition did not make out any case of any promise being made to grant minimum subsidy of 75% and even the notification dated 02.12.2005 does not assure grant of minimum subsidy. It is also pointed out that neither the Budget speech nor in any other letter, the State Government suggested or promised grant of subsidy up 75%. 47. To consider the ground of promise and assurance upon which the respondent company is claiming its right for 75% sales tax exemption, first of all we have perused the RIPS, 2003. 48. The scheme known as RIPS, 2003 was introduced by the State Government on 28.07.2003 with a view to provide investo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Sales Tax liability shall be allowed in form of interest subsidy, wage/employment subsidy out of which interest subsidy shall be limited to 5% of the documented rate of interest and the amount actually paid as interest shall not include penal interest, and wage/employment subsidy. A unit not claiming any interest subsidy can claim wage/employment subsidy to the extent of 30% subject to other conditions under this amendment. 4. The claim of the subsidy shall be as per the provisions of this scheme. (vii). Notwithstanding anything contained in sub clause (i) to (v) above, in case of investments for expansion of existing cement unit having investment exceeding Rs. 200 crores and with a minimum regular employment of 100 persons, the amount of subsidy shall be subject to a maximum limit of 75% of the additional tax (calculated by taking the average of last 3 years) payable or deposited under Rajasthan Sales Tax Act, 1994 or Value Added Tax Act as and when introduced in the State) and Central Sales Tax Act, 1956 for a period of 7 years from the date of commencement of production, subject to the following conditions, namely- 1. The investor shall submit an option to the Member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns by the respondent company, while the application filed on 30.01.2006 was under consideration, in the meantime, the respondent State Government issued an order on 28.04.2006, whereby the State Government deleted the sub-clauses (vii) of Clause-7 of RIPS 2003. However, in the 16th Meeting, the SLSC (State Level Screening Committee) which was held on 27.06.2007, in which after considering all the relevant facts, held the respondent company entitled for availing of Clause (vii) and 7 of RIPS, 2003. The SLSC considering that options were registered within limitation period as per Notification dated 02.12.2005 when it was in full force and prior to premature amendment dated 28.04.2006, whereby sub-Clause (vii) of Clause 7 was deleted. 53. According to respondent company, the respondent company commenced its commercial production within stipulated period from the date of registering option stood fulfilled the criteria of the investment exceeding Rs. 200 crores and minimum additional employment of 100 employees was made by the company. Therefore, the SLSC issued Entitlement Certificate No. 2/66 dated 27.6.2007 for a period of 7 years from 26.03.2007 to 25.03.2014 to the respondent comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clauses are quoted herein below for ready reference: - "13. REVISION BY THE STATE GOVERNMENT: (a) The State Government in Finance Department may suo motu or otherwise revise an order passed by any Screening Committee wherever it is found to be erroneous and prejudicial to the interest of the State revenue, after affording an opportunity of being heard to the beneficiary industrial unit. (b) No order under the sub-clause (a) shall be passed by the State Government after the expiry of a period of five years after the date by which the benefits under this scheme are fully availed of. 14. REVIEW OR MODIFICATION OF SCHEME: The State Government in the Finance Department reserves the right to review or modify the Scheme as and when needed in public interest." 57. On 22.05.2008, the State Government issued a clarification on a reference being made by the Commercial Taxes Department clarifying in case of six cases cited, the subsidy is allowable under the Notification dated 02.12.2005 upon its deletion on 28.4.2006. The said Clarification dated 22.05.2008 is also quoted herein below for ready reference: "GOVERNMENT OF RAJASTHAN FINANCE DEPARTMENT (TAX DIVISION) No.F.12 (20)FD/Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d after 27.04.2006 but within 180 days of 02.12.2005 and the case has not been considered by SLSC, and 6. Where the option was submitted after 27.04.2006 but within 180 days of 02.12.2005 and the unit has still not applied for the benefits. Kindly ensure necessary action accordingly. By Order Sd/- (S.S. Rajawat) Spl. Secretary to Government" 58. Against the said clarification, representations were made by the respondent company. During the pendency of the representation, the State Government (Taxation Division of Finance Department) issued an order on 30.09.2008, whereby following amendment was made, which reads as infra: - "GOVERNMENT OF RAJASTHAN FINANCE DEPARTMENT (TAX DIVISION) No.F.12 (20)FD/Tax/2005- Pt. Dated 30.09.2008 ORDER In partial modification of this department's order F.4 (18) FD/Tax-Div/2001 dated 28.7.2003 (amended from time to time), the Government makes the following amendments in the Rajasthan Investment Promotion Scheme, 2003 (hereinafter referred to as "the Scheme"); namely: - AMENDMENTS (i) In sub-clause (iii) of clause 7 of the Scheme after the existing provisos, the following proviso shall be added, namely:- "Provided further that the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment was made much earlier and cannot be said to have been motivated by the new scheme. Accordingly, the unit cannot claim eligibility under the scheme as has been discussed in detail above. There is also, therefore, no question of promissory estoppels and the Applicant Company cannot get any benefit thereof. As regards the second decision of the SLSC dated 27.6.07, for various arguments stated above, the Applicant Company can derive no extraordinary benefit beyond what it has been enjoying under the original provisions of Clause 7 of RIPS 2003. When the decision of the SLSC was given on 26.6.07, the enabling provisions of Clause 7 (vi) and (vii), already having been deleted on 26.04.08, did not exist in the scheme. It is also pointed out here that there are only two such orders of the SLSC pertaining to the same Applicant Company which have sought to obtain benefits under the provisions of Clause 7 (vi) and (vii) of RIPS 2003, which lasted for a mere five months. 58. I hereby accept both the revision applications dated 18.7.08 submitted by the Commissioner, Commercial Taxes seeking revision of the decision of the SLSC dated 29.7.06 and 27.6.07. These decisions are hereby quashed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the Principal Secretary, Finance, Government of Rajasthan, Jaipur, the doctrine of promissory estoppel is required to be perused. 66. The principal of promissory estoppel is a rule of evidence incorporated in Section 115 of the Indian Evidence Act, 1872. It is true that principle of promissory estoppel is where one party has by his words or conduct made to the other a clear and unequivocal promise, which is intended to create legal relations or effect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it. It is not necessary, in order to attract the applicability of the doctrine of promissory estoppel that the promisee acting in reliance of the promise, should suffer any detriment. The only thing necessary is that the promisee should have altered his position in reliance of the promise. 67. In the light of the aforesaid mentioning of doctrine of promissory estoppel, first of all, it is necessary to observe that respondent company expre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.12.2005 to 28.4.2006 no such benefit of subsidy upto 75% was allowed by the State Government or SLSC to any of the unit in the State of Rajasthan. 69. The core question arises in the present appeal whether 75% subsidy within clause 7(vii) of RIPS, 2003 can continue after deletion of clause 7(vii) vide notification dated 28.4.2006? 70. To consider the said aspect of the matter, we have examined the arguments of both the parties. 71. The petitioner-respondent Shree Cement Company Ltd. claimed its right on the basis of judgment of the Hon'ble Supreme Court in the case of Srinivasa Jute Twine Mills Pvt. Ltd. v. Union of India reported in 2006(2) SCC 740. The said case was related to Section 16(1)(d) of the Employees Provident Fund Act, 1952, which confer the benefit of "infancy protection" of a new industrial undertaking for a period of five years. Section 16(1)(d) was omitted w.e.f. 22.9.1997, at that time, Srinivasa Jute Twine Mills had availed of "infancy protection" for only two years. The PF authorities sought to contend that as Section 16(1) (d) was no longer in the statute book, it was not permissible for Srinivasa Jute Twine Mills, to claim the benefit of "infancy pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of percentage of subsidy is required to be seen at the time of adjudication. 73. Upon assessing the law laid down by the Hon'ble Supreme Court in various pronouncements cited by the learned counsel for the parties, this Court cannot lose sight of the fact that in this case the question of enhancement of subsidy from 50% to 75% is involved. In our opinion, the State Government being welfare state requested to act in public interest to consider the financial condition of the State so as to grant subsidy for industrial development. The subsidy cannot be granted for the benefit of individual because public money is required to be utilized by the State for welfare of public. It is true that under original RIPS, 2003 all eligible units fall within the scheme were entitled to claim subsidy upto the percentage provided initially, but here in this case, the subsidy was enhanced in one point of time vide amendment in the RIPS Scheme, 2003 vide notification dated 2.12.2005, but same was deleted vide notification dated 28.4.2006, but respondent company has claimed subsidy as a matter of right knowingly well that the provision of subsidy upto 75% is not in existence. It is admitted fact o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the respondent company is entitled for the relief prayed on the ground of legitimate expectation? 77. To consider the finding of the learned Single Judge on the ground of legitimate expectation, first of all, it is required to be understand what is "legitimate expectation". As per settled principle of law, the legitimate expectation is not a legal right. It is an expectation of a benefit, relief or remedy that may ordinarily flow from a promise or established practice. The term 'established practice' refers to a regular, consistent predictable and certain conduct, process or activity of the decision-making authority. The expectation should be legitimate, that is, reasonable, logical and valid. Any expectation which is based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid cannot be a legitimate expectation. Not being a right, it is not enforceable as such. More so, it is a concept fashioned by courts, for judicial review of an administrative action. It is procedural in character based on the requirement of a higher degree of fairness in administrative action, as a consequence of the promise made, or practice established. 78. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in that period, none of the company was given such benefit. Therefore, on the ground of legitimate expectation, the respondent company was not entitled to get any benefit. More so, the respondent company was not even entitled to raise this ground because the prayer for quashing order/notification dated 28.4.2006 whereby clause 7(vi) and (vii) of RIPS, 2003 was deleted was not pressed before the Single Judge. C. Whether any vested right remained in existence even after deletion of clause 7(vi) and (vii) of RIPS, 2003 vide notification dated 28.4.2006.? 81. To consider the ground of vested right raised by the respondent company to claim 75% subsidy upon entitlement certificate issued by the SLSC on 29.7.2006 and 27.6.2007, we have considered the legal proposition of "vested right". 82. The "vested right" is a right belonging completely and unconditionally to a person as a property interest which cannot be impaired or taken away (as through retroactive legislation) without the consent of the owner. 83. Admittedly, for industrial development, the State Government framed scheme known as RIPS, 2003 in which for industrial development, subsidy was allowed upto 50% to the new units es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o invoke clause 13 and 14 of the RIPS, 2003 in which there is provision of revision and review for quashing the orders of SLSC. 86. Upon perusal of order impugned dated 31.3.2009, it is apparent that Principal Secretary, Finance, Government of Rajasthan applied its mind thoroughly and in well worded judgment while exercising revisional jurisdiction under clause 13 and 14 of RIPS, 2003 quashed the order of entitlement certificate issued by the SLSC in which there is no error. The ground of vested right taken by the respondent company thus is not sustainable in law, therefore, we hold that finding of the learned Single Judge to quash the order dated 31.3.2009 passed by the Principal Secretary, Finance deserves to be quashed. D. Whether the ground raised by the respondent company with regard to doctrine of contemporanea expositio will apply in this case or not? 87. To consider the aforesaid question, first of all, we are required to understand what is "contemporanea expositio". The contemporanea expositio is a guide for interpretation of documents or statutes. It is one of the important external aids for interpretation. However, great care is required to be taken in its application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order passed by the Principal Secretary, Finance, Government of Rajasthan dated 31.3.2009. 91. Upon consideration of facts and reasons, we are of the view that even though number of judgments are cited by the petitioner-respondent Shree Cement Company Ltd. for the claim of subsidy upto 75%, upon the doctrine of contemporanea expositio, we are unable to accept the plea that respondent Shree Cement Company Ltd. is entitled for subsidy upto 75% under the amendment made on 2.12.2005 which remains in currency upto 28.4.2006 because in the said period neither SLSC considered the prayer of the petitioner-respondent Shree Cement Company Ltd. nor any order for entitlement was passed in their favour. 92. All the judgments cited by the learned counsel for the petitioner-respondent Shree Cement Company Ltd. to support the finding given by the learned Single Judge are for the purpose of interpretation of law but upon the facts of present case neither petitioner-respondent Shree Cement Company Ltd. fulfilled eligibility conditions mentioned in the RIPS, 2003 for the purpose of granting 75% subsidy nor at the time of giving entitlement certificate by the SLSC, the provision was in existence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment, then also it cannot be said that there was no jurisdiction with the Principal Secretary to entertain revision petition because provision was expressly incorporated in clause 13 that the State Government in Finance Department may suo motu or otherwise revise an order passed by any State level screening committee wherever it is found to be erroneous and prejudicial to the interest of State revenue after providing an opportunity of being heard to the beneficiary industrial unit. Here in this case, the SLSC committed a grave error granting subsidy upto 75% to the respondent company in its meetings held on 29.7.2006 and 27.6.2007 after deletion of the provision, therefore, in our opinion, Principal Secretary, Finance has rightly exercised its power to entertain the revision petition. It is also required to be observed that the order of revisional authority is well worded order while considering all aspects of the matter and considering the most important aspect of the case that SLSC granted benefit of subsidy upto 75% under the provision which was not in existence. Therefore, apparently, no error was committed by the Principal Secretary of Finance Department, Government of Rajas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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