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S.K. Oil and Pulses Mill Vs. State of Maharashtra and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 770A/82
Judge
Reported in1983(2)BomCR668
ActsConstitution of India - Articles 14, 19(1) and 226; Evidence Act, 1872 - Sections 115
AppellantS.K. Oil and Pulses Mill
RespondentState of Maharashtra and ors.
Appellant AdvocateM.V. Paranjpe, ;S.M. Paranjpe and ;Ankush Bhalekar, Advs.
Respondent AdvocateS.K. Choudhari, G.P., for Respondents Nos. 1 and 2 and ;A.R. Athavale, Adv. for Respondent No. 3
Excerpt:
(i) sales tax - violation - articles 14, 19 (1) and 226 of constitution of india and section 115 of evidence act, 1872 - petition with grievance that inspite of fulfilling all pre-requisites no eligibility certificate granted under particular scheme entitling petitioner to benefits by way of incentives - provisions of scheme does not lay down that once unit fulfills certain requirements eligibility certificate must be issued - no right or claim deemed to accrue in this regard - contention that legal right of eligibility certificate arises in favour of petitioner once all initial and final steps are completed not acceptable - held, petitioner failed to make out case to prove his right to claim any relief in petition. (ii) promissory estoppel - doctrine of promissory estoppel available as.....s.j. deshpande, j.1. this writ petition is filed by the petitioner under article 226 of the constitution of india. the petitioner is a partnership firm established on 1st of march, 1980, and registered on 18th of august, 1980. the partners of the firm are not shown as parties to the petition. however, the firm being registered, it must be deemed that all partners are parties to this petition. respondent no. 1 is the state of maharashtra. respondent no. 2 is the marathwada development corporation limited, situated at vikas bhavan, aurangabad. respondent no. 3 is the maharashtra state oil seeds commercial and industrial corporation ltd., situated at jolly bhavan no. 2, 2nd floor, new marines lines, bombay.2. the partnership is a will. the business of the partnership firm was of dealing in.....
Judgment:

S.J. Deshpande, J.

1. This writ petition is filed by the petitioner under Article 226 of the Constitution of India. The petitioner is a partnership firm established on 1st of March, 1980, and registered on 18th of August, 1980. The partners of the firm are not shown as parties to the petition. However, the firm being registered, it must be deemed that all partners are parties to this petition. Respondent No. 1 is the State of Maharashtra. Respondent No. 2 is the Marathwada Development Corporation Limited, situated at Vikas Bhavan, Aurangabad. Respondent No. 3 is the Maharashtra State Oil Seeds Commercial and Industrial Corporation Ltd., situated at Jolly Bhavan No. 2, 2nd Floor, New Marines lines, Bombay.

2. The partnership is a Will. The business of the partnership firm was of dealing in oil from oilseeds, except KARDI, and pulses of all kinds. The partnership is styled as Messrs. S.K. Oil and pulses Mill situated at Plot No. 46 and 53, Lathur Industrial State Co-operative Society Ltd., Lathur. The petitioner states that it has capital investment in the industry to the tune of Rs. 19 lakhs, out of which the contribution by the partners is to the tune of Rs. 5,85,000/- and the rest of the capital is raised by the firm by taking loans from the Bank.

3. It is alleged that the reports were available to show that there is enough agricultural produce of raw material available for starting oil industry at Latur. It was stated that the climate is also very suitable in this part of the State, that is, Marathwada region, and this region, being backward has several disadvantages such as absence of skilled labour, lack of assured market and want of transport facilities. As the existing units in Lathur could not process the full arrival of the raw material, the petitioner states that they wanted to establish the said industry and conduct their business in this area.

4. It is stated that respondent No. 1 introduced a scheme named as 'Package Scheme of Incentives 1979'. This scheme is in continuation of the scheme earlier introduced by respondent No. 1 in 1964. The important grievance of the petitioner, as alleged in the petition, is that respondent No. 1 by introducing this scheme issued certain specific directions, to which we will refer later, as a result which the petitioner was not able to get the requisite certificate, called the eligibility certificate under the scheme. The benefits, which are available under the scheme, are dependent on the receipt of this eligibility certificate.

5. The petitioner has then paragraphs 4 and 5 of his petition summarised the nature and the formation of the scheme. It is stated that respondent No. 2 has been constituted an agency for implementing the said scheme. The scheme is introduced by respondent No. 1. However, the actual implementation rests with respondent No. 2 under the direction and control of respondent No. 1.

6. A particular feature of the said package scheme is that industries are divided into three parts consisting of large, medium scale and small scale industries. In this petition, we are concerned with a Small Scale Industrial Unit. The location of industries is also divided into various groups, like 'A', 'B', 'C' and 'D'. The petitioner industry is covered as a small scale industry in Group 'D'. It is stated that Group 'D' represents or reflects an area, which is least developed. It is alleged in the petition that though the scheme was introduced in the year 1979, it was announced in 1980, and it was effective retrospectively from 1-2-1979 and is effective till 31-3-1983.

7. The petitioner further states that on 5th July, 1980, respondent No. 1 by a Government Resolution issued an amended scheme. However, we are not concerned in this petition with the amended scheme dated 5th July, 1980. It is stated by the petitioner that by the amended scheme dated 5th July, 1980, certain tax exemptions were granted. It is alleged in the petition that the petitioner is required to fulfil initial and final steps as provided by the scheme and it is only after fulfilling these initial and final steps that the petitioner gets a right to have an eligibility certificate under the scheme. It is stated in the petition that the petitioner has completed all initial and final and effective steps, yet the respondents are denying the petitioner the eligibility certificate, which the petitioner is entitled to get under the scheme.

8. The petitioner says that it has applied in the prescribed Form No. 1 for eligibility certificate to the respondent on 18th of February, 1981. It is also stated that it has given the relevant details such as, possession of land, date of taking possession of the land, which is 31st July, 1980, and it has also obtained a no objection certificate on the same day. The petitioner has also obtained a provisional registration of small scale industry from the Director of Small Scale Industries on 19-4-1980. It is further stated that the registration of the petitioner has been made final on 17th May, 1982. The petitioner states that thereafter on 16th May, 1981, he obtained a sales tax registration certificate under the Central Sales Tax Act and further obtained a sales tax registration certificate under the Bombay Sales Tax Act on 29-5-1981. The petitioner states that thereafter a letter by respondent No. 2 came to be addressed to the General Manager, District Industries Centre, Osmanabad, calling upon him to send necessary papers to forward them to the Government. Then the petitioner has referred to a letter issued by the district Industries Centre, Osmanabad, dated 21-9-1981, wherein it is stated that there are about 63 oil mills in the district and the letter further mentions that additional 45 to 50 oil mills will not face any difficulty in procuring the raw material. The petitioner in short says that under the relevant scheme, to which we will refer later, he has taken all effective steps, including the initial and final steps. The petitioner says that in pursuance of these steps, he has obtained a sanction to the total grant of loan of Rs. 14,42,000/- on some terms and conditions. It is stated that he has completed all the requirements and he has further stated that he commenced his production on 26th of January, 1982. It is here that the petitioner says that once again he requested respondent No. 2 to grant rant the eligibility certificate. Then there was some change in the policy of the Government to offer certain further benefits of sales tax and an option was given. Then it is stated by the petitioner that he has not chosen the option, but he has stood by the previous commitments and it is said that he does not want to claim the options and contends that the petitioner wanted to avail of the sales tax benefits by way of exemption and not by way of deferral. The petitioner that requested respondent No. 2 for issue of the eligibility certificate by issuing several letters and reminders, but till July 1982, he has not got any eligibility certificate. Then in paragraph 7, the petitioner has specifically alleged that after the scheme came into operation, certain industries were given the eligibility certificates. Further it is stated that respondent No. 1 issued a directive in the month of May, 1982, to respondent No. 2 stating that the eligibility certificate should not be granted without proper scrutiny. It appears that certain new conditions were laid down by the scheme. It is here that the petitioner has stated specifically in his petition that these conditions were challenged in this Court by other industries in Writ Petition No. 242 of 1982 and it appears that respondent No. 1 realised that there was likely to be some difficulty in following these conditions and, therefore, those petitioners, who filed the above petition, were granted the eligibility certificate without following these conditions. This matter is referred to by the petitioner only by way of a circumstance to show the attitude of respondent No. 1. Then the petitioner refers to the fact in his petition that his unit was completed all effective steps before 10th January, 1983, when the industry of the petitioner has already started its production. It is the case of the petitioner that he has submitted all documents necessary for the purpose of grant of eligibility certificate. However, respondents Nos. 1 and 2 have been in different and somehow or the other hostile to the petitioner and have not cared to process his application and have kept his application pending since January despite several reminders.

9. The petitioner further states that to his surprise, on 25th October, 1982, respondent No. 1 issued a letter by which respondent No. 1 asked all the General Managers of the District Industries Centres to scrutinise the proposals for setting upon the oil mills rigorously and directed them, especially by direction No. (3) that they should not issue the registration and eligibility certificate a matter of course unless they are satisfied that the conditions are fulfilled and there is scope for another oil mill in that area. Respondent No. 1 further directed that if it is revealed that there is no such scope, no registration should be made and in case of doubt, a reference be made to the Government with full data and for decision. This letter is included in this petition. We will however, show later that the challenge given to this letter may not survive in this petition in view of certain further developments.

10. The petitioner says that this letter constitutes mala fides on the part of respondent No. 1 as the Government by this letter has directed certain new conditions to be fulfilled by the eligible units. This letter is addressed to the Industries Commissioner, Bombay and to the Managing Directors of the Development Corporations in the State of Maharashtra including the Marathwada Development Corporation, Aurangabad. The petitioner specifically says that in this letter, the following directions are given by the Government. We have already referred to direction No. 3, in para 9 which was material in this case, and therefore, we are reproducing only the first two directions---

(1) The registration for new oil mills should be granted only after ascertaining from the Maharashtra Oil Seeds Corporation continuous availability of oil seeds without affecting the capacity of the existing oil mills; and

(2) A 'no objection certificate'' from the Maharashtra Oil Seeds Corporation should also be obtained for setting up new oil mills.

The Maharashtra Oil Seeds Corporation referred to in these two directions is respondent No. 3 in this petition. The grievance of the petitioner in regard to this letter is that this letter dated 25th October, 1982, is issued by respondent No. 1 with the ulterior motive only to hamper the processing of the petitioner's application and the directives contained in this letter create further hurdles and obstacles in the way of the petitioner to obtain the eligibility certificate. In fact, this letter has no relevance at all under the scheme. However, respondent No. 1 issued this letter and, therefore, the petitioner submits that respondent No. 1 has issued this letter only to obstruct the course of obtaining the eligibility certificate by the petitioner.

11. The petitioner further states that by letter dated 1st December, 1982, which is annexed as Exh. A-2 to the petition, the Government, that is, respondent No. 1 has informed the Maharashtra State Oil Seeds Commercial and Industrial Corporation Limited, that is, respondent No. 3, as also to the Regional Development Corporations and all district Industries Centres certain instructions. In this letter, the Government has declared its policy to encourage setting up to edible oil mills only on co-operative basis and that no new oil mills should be set up in the private sector unless and until a clearance certificate from respondent No. 3 is obtained. It is stated in this letter that in future the Regional Development Corporations and the General Managers of the District Industries Centre will refer the individual cases of oil mills pending with them and fresh applications for grant of final S.S.I. registration/eligibility certificate under the Package Scheme of incentives to the Corporation, that is, respondent No. 3, for getting clearance from it. By this letter, respondent No. 3 was directed to communicate its recommendations to the respective District Industries Centers/Regional Development Corporation after examining the case from the point of view of availability of raw material, market for oil and feasibility of installing additional capacity vis-a-vis existing capacity in the area. A copy of this letter was also endorsed to the respective Regional Development Corporations including Marathwada Development Corporations which is respondent No. 2 in this petition. We will refer to this letter later on.

12. The petitioner further states that the letter written by respondent No. 1 on 1st December, 1982 and another letter dated 25th October, 1982, referred to above, and the directions issued in this letter to obtain clearance certificate from respondent No. 3, all these acts of respondent No. 1 are directed towards the intentional mischief, which respondent No. 1 is playing in this case as far as the petitioner is concerned. The mischief relates to the delay or, perhaps, denial of the eligibility certificate to the petitioner, although the petitioner has, in accordance with the 1979 Scheme, completed all the initial, final and effective steps and his case is quite ripe for grant of eligibility certificate.

13. It is averred by the petitioner that respondent No. 3 is not an authority under this scheme and reference for any certificate including the clearance or registration certificate as also calling for its views and asking it for processing all applications in quite irrelevant as far as the petitioner is concerned.

14. It is also curious, the petitioner states, that when the petition actually approached respondent No. 3 for demanding the eligibility certificate, respondent No. 3 in categorical terms informed the petitioner that they did not receive any instructions from the Government. The net result, according to the petitioner, is that respondent No. 1 is bent upon creating some obstacles is the way of the petitioner to obtain the eligibility certificate.

15. The petitioner has further averred in his petition that respondent No. 1 has always an intention to resile from the promises held out earlier, on the basis of which the petitioner and the persons similarly situated raised capital and invested large sum by incurring loan liabilities. The petitioner says that calling upon the petitioner to furnish certain other certificates and no objection certificates and especially asking him to comply with the directions issued under letter dated 25th October, 1982 constitute a threat to continue his business and these acts of respondent No. 1 are quite mala fide. The mala fides are said to have been disclosed by following facts in the petition.

1) That condition to bring No Objection Certificate from respondent No. 3 is unwarranted, because Clause 2.3 of the Scheme does not refer to this agency at all; and

2) The petitioner having completed all the initial, final and effective steps and commenced his production on 26th January, 1982 and obtained registration certificate on 17-3-1982, asking him now to bring again a no objection certificate is also an instance of mala fide.

Then the petitioner, in one of the grounds, has specifically stated as follows :---

3) That by imposing the new conditions by its letter dated 25-10-1982, respondent No. 1 is seeking to create hurdles and difficulties with a view to avoid granting of eligibility certificate under the unamended scheme. In this behalf, it i submitted that the petitioner has acted on the promise held out by respondent No. 1 in the unamended package scheme and further that the Petitioner had acted to its detriment by making large investments, by way of property, machinery, labour and raw materials. It is, therefore, submitted that the acts of respondent No. 1 amount to breach of its promise and that respondent No. 1 is barred by the principle of promissory estoppel from going back on its promise and committing a breach thereof.

We have specially quoted this ground only to show that the whole basis of this petition is based on the application of these principles of promissory estoppel in this case.

16. The petitioner further says that his right under Article 19(1)(g) of the Constitution of India has also been violated as, without the benefits under the Scheme, he would not be able to cope up with the other units which have already been granted benefits under the Scheme.

17. A grievance of violation of Article 14 of the Constitution is also made in the petition. The petitioner again repeated his case of relying on the principles of promissory estoppel. In the last, the petitioner, in relief clause, has prayed for the following reliefs :---

a) That it be declared that the directions contained in the letter dated 25-10-1982 at Exhibit 'D' are illegal and consequently the said letter be quashed; and

b) That this Hon'ble Court be pleaded to issue a writ of mandamus or a writ in the nature of mandamus or any other writ, direction or order directing respondent No. 2 to grant eligibility certificate and the certificate of entitlement to the petitioner under the unamended scheme of 1979.

Prayers (c) and (d) are normal prayers, with which we are not concerned in this case. This petition was filed on December 18, 1982 and it is affirmed by one of the partners of the petitioner firm. The petition is accompanied by a copy of the said Scheme to which we will refer later.

18. In reply to the petition, the Government, that is, respondent No. 1 has filed a return on 9th March, 1983. The return states that the facts relating to the completion of the steps and other facts alleged in the petition stand admitted. The principal ground raised in the affidavit filed by the Government is that the package scheme was introduced by the Government to give certain incentives to certain industries. The scheme was reviewed by the Government from time to time and on 5th January, 1980, the package scheme of 1979 was introduced. In Clause 1.2 of the said scheme, it is stated that the scheme shall remain in force from August 1, 1979 to March 31, 1983. However, it appears that this date has been changed to 10th January, 1983. It is also laid down by the Government, it is stated in return, that the Government has right to amend the scheme after giving six months' notice in that behalf. It if further specifically stated that the package scheme, popularly known as the package scheme of 1979, does not create any right whatsoever in favour of the petitioner. It is stated that according to Clause 4.6 of the said scheme, no right or claim for any incentive under the scheme is deemed to have been conferred by the scheme merely by virtue of the fact that the unit has fulfilled on its part conditions of the scheme. The incentives under the scheme cannot be claimed as a matter of right unless the letter of intent/eligibility certificate has been issued under the scheme by the implementing agency concerned and the unit has complied with the stipulations/conditions of the letter of intent/eligibility certificate. The return further states that in view of this position, the condition raised in paragraph 2 of the petition is incorrect and it is stated that the petitioner is not entitled to any relief.

19. Then in paragraph 5 of the return, admitting the other contentions as being relating to the other respondents, it is further stated that apart from the sovereign function, the state Government is required to promote healthy industrial growth to the State and after the implementation of the, package scheme of 1979, the Government started receiving representations particularly in the year 1981 that the new units, particularly in oil industry are being disbursed the incentives at such a high rate that the interests of the existing units are being adversely affected, and certain oil mills had also filed a writ petition, which is pending at Nagpur. It is stated that in the petition similar question is raised and the package scheme of 1979 is challenged as the State Government in giving discriminatory treatment to the existing units and that certain benefits and similar incentives are denied to them. It is further stated that it has been brought to the notice of the Government that the concessions are being misused and there is mushroom growth of oil mills and, therefore, the Government had to decide the procedure to be adopted in ensuring that only genuine oil mills are brought within the purview of the package scheme of 1979 and the interest of the existing oil millers should be adequately protected against the mushroom growth of small scale oil industries proposed to be established with an intention to reap unlimited profits under the scheme. It was stated in this connection by respondent No. 1 in his affidavit that it was to achieve this object and to obtain the exact nature of the units coming up that respondent No. 3 was constituted to examine and scrutinise the applications of several persons while granting the eligibility certificate in order to ascertain the feasibility of the new units coming up. Accordingly, respondent No. 3 was asked under instructions dated 1-12-1982 to offer its recommendations. It may be mentioned here that we have earlier referred to this letter as being not of any use to the petitioner to contend that this letter was issued by respondent No. 1 with ulterior motive. The intention of the Government in constituting the said Corporation, that is, respondent No. 3 was to ensure the encouragement to the genuine oil industries and it is sufficiently stated by the Government in its counter, and, therefore, it was stated that there is no substance in the contention that this particular demand of obtaining no-objection certificate from respondent No. 3 was unwarranted.

20. Further, in this connection, we may immediately add that the Government had to admit that respondent No. 3-Corporation by its letter dated 3-12-1982 declined and expressed its inability to process the applications, which were received by it, and returned them with the remarks that neither the Government was competent under the law to delegate its functions to it nor were they competent to process the applications. In the result, it appears that the directions issued by respondent No. 1 in letter dated 1st December, 1982 to respondent No. 3 to process the applications after scrutinising the various proposals given by units seems to have been frustrated by the very reply letter dated 30-12-1982 of respondent No. 3. Therefore, in the return the Government had to concede that the policy of procedure will be adopted after its revision in respect of disbursement of incentives to oil industry and that respondent No. 3 has no connection with the policy which was underlined in letter of respondent No. 1 dated 1-12-1982.

21. Then the return goes on to State that it was not the mala fide intention of the Government and the allegations in that behalf were denied by saying that the State had no intention to delay the issue of the eligibility certificate, but the bona fide intention was to ensure that the benefits are conferred on legitimate units. The return ends with paragraph 10 replying only 13 paragraphs of the petition. It is affirmed by the Under Secretary to the Government on 9-3-1983.

22. After this counter was filed, an affidavit by respondent No. 2 was filed, which appears to be formal affidavit in the sense that respondent No. 2 has only stated in its affidavit in paragraph 4, which is material, the details in respect of the petitioners unit. It is stated by respondent No. 2 in affidavit that the petitioner applied for eligibility certificate on April 30, 1981. It is further stated that the petitioner did not produce all the required documents along with the application on 30-4-1981 in Form No. 1. It is alleged that the petitioner produced different documents at different time and during the period from 30-4-1981 to 24-11-1983, the petitioner went on producing various documents in support to its application submitted in Form No. 1 for eligibility certificate and it is because of this particular delay and non-supply of documents at the right stage that the application could not be processed in time. Respondent No. 2 has filed a statement showing 21 items which throw light on the progress and steps taken by the petitioner from 30th April, 1981 till August, 1982 in support of its contention documents at different times during this period. Respondent No. 2 also has filed a copy of the rules with a heading 'Chapter II Eligibility Certificate Under Part-1' at Exhibit A-1. These rules are filed along with the counter of respondent No. 2.

23. Respondent No. 3 (sic) also had made a formal affidavit repeating his grievance and stating that though respondent No. 3 received number of applications including the application of the petitioner, respondent No. 3 expressed its inability to process these applications for the reasons given by it in letter dated 30-12-1982. Both respondent Nos. 2 and 3 have, however, supported the stand of respondent No. 1 that the petitioner has no right to claim the eligibility certificate.

24. The petitioner has filed a detailed rejoinder to the petition and disclosed certain facts and repeated his grievance and again emphasised that respondent No. 1 is violating Article 19(1)(g) of the Constitution and also Article 14 inasmuch as he is denying the benefit of the said scheme to the petitioner. It is also stated that the right, which is accrued to the petitioner to claim the eligibility certificate under Clause 4.5 of the said scheme, is wrongly denied and the rejoinder also refers to certain defects in the affidavit filed by respondent No. 1 to which we will refer later.

25. In short, in rejoinder the petitioner has repeated his own grievance which is already stated in the petition. There is a further affidavit filed by the petitioner in reply to the affidavit of respondent No. 2. This is also by way of repeating his own grievance earlier stated and it is not necessary to set out the details of this affidavit. There is a formal affidavit on record replying tot he affidavit of respondent No. 3, which also need not be considered.

26. During the hearing of this petition, again respondent No. 2 filed an affidavit dated 28th March, 1983. In this affidavit, respondent No. 2 explained as to in what manner there was some delay in filing the documents by the petitioner' especially with regard to the filing of the extract of the production register, which was filed on 8th April, 1982. Respondent No. 2 in his affidavit says that the petitioner has filed the extract of the production register relating to dal mill and not relating to oil mill. It is stated in this affidavit by respondent No. 2 that extract of production register was subsequently produced on 24-11-1982 and it is further stated that the petitioner did not produce the extract of production register in respect of oil mill before 24-11-1982. Some charge in levelled against the petitioner of making a false statement, to which a strong reply was given by the petitioner and also a strong protest was registered by the petitioner during the course of arguments and without going into this controversy, respondent No. 2 has tried to explain how various documents have been filed at different stages and ultimately it is stated that the implementing agency, that is, respondent No. 2, can always call for any document including the clearance certificate from Central or State Government and/or any other authorities in order to find out whether the provisions of the scheme have been carried out or not. Then, respondent No. 2 has filed a letter and extract along with the affidavit wherein the details of supply of this production register have been given. There is a further affidavit in sur-rejoinder filed by the petitioner by way of reply to the affidavit of the second respondent, which we have taken on record. The same affidavit denies the contents of the affidavit of respondent No. and also denies that charge of suppressing any material or falsely stating anything and explains that veracity of the claim made by respondent No. 2 that the petitioner has not filed certain documents as required along with his application. The petitioner has further stated that the language of the scheme is very clear and it is stated that several benefits available and incentives are given under the said scheme and the petitioner, if he chooses to file both the exacts, that is, extract relating to dal mill as also the oil mill was justified in doing so, because there are certain exemption in addition to the sales tax to dal mill owners also. Therefore, filing of the dal mill extract and further filing the extract of the production register on 24th April, 1982 is quite consistent with the intention of the petitioner to obtain the eligibility certificate for both the units and their is nothing illegal or wrong in filing both the extracts and, therefore, the petitioner states that the charge made against him is groundless.

27. After the narration of the petition and its replies, we now propose to deal with the exact wording of the scheme, which is the foundation of the right claimed by the petitioner in this petition.

28. The scheme is called 'Dispersal of Industries-Package Scheme of Incentive....' and the Government of Maharashtra in Industries, Energy and Labour Department by its resolution dated 5th January, 1980, has introduced this scheme. The Preamble of the scheme is as follows :---

'In order to achieve dispersal of industries outside the Bombay-Thana-Pune belt, Government has been giving, since 1964, to the industrial units coming up in the developing areas of the State, a package of incentives comprising mainly the refund of sales tax, relief in electricity tariff, octroi, etc. The scheme was reviewed by the Government from time to time and with effect from August 1, 1976, a package Scheme of Graded Incentives (hereinafter referred to as 'the 1976, Scheme'), was sanctioned by Government Resolution, Industries. Energy and Labour Department No. IDL 7076/6212(5)/IND. 8, dated the 18th January, 1977. The period of the 1976 Scheme expired on July 31, 1979...

Government had under consideration the question of revising and integrating these schemes and making them more broad-based and effective so as to speed up the pace of industrialisation in the developing regions of the State.'

After this Preamble, the Resolution of the Government follows, which is classified in several clauses. We are reproducing those clauses, which are material for our purposes---

'1.1. Government is pleased to direct that the package Scheme of Incentives, as last modified by Government Resolution, Industries, Energy and Labour Department, No. IDL 7076/5212(5)/IND.8, dated the 18th January, 1977, read with Government Resolution, No. IDL 7076/48287(295)/IND. 8, dated the 17th September, 1977, should be further modified with effect form August 1, 1979, as indicated below.

'1.2. The modified package scheme of Incentives (hereinafter referred to as 'the 1979 Scheme') shall remain in operation for the period from August 1, 1979 to March 31, 1983. Government may at any time after giving six months notice, make any amendments to the Scheme but the commitments already made shall not be affected by any such amendment.'

Then Clause 1.3 relates to classification of areas and several groups introduced by the said Scheme. Thereafter Clause 1.4 deals with the coverage under the Scheme and it is in the following terms :---

'1.4 ....

Incentives under the 1979 Scheme will be available to eligible units in the private sector, State Public Sector/Joint Sector and the Co-operative Sector.

Eligible units under the State Public Sector/Joint Sector will be entitled to incentives only under Part 1 of the Scheme.............................'

Then Clause 2 deals with the definitions with the heading 'Date of report of Eligibility under Part I'. Clause 2.1(i) and (ii) are in the following words :---

'2.1(i) The Eligibility Certificate under Part I of the 1979, Scheme will be issued effective from the date of commencement of commercial production. The said date will be determined by the Implementing Agency based on the totality of the documentary evidence led by the eligible unit in this behalf, as also such other information, details, etc. required/called for in connection therewith; such as, the date of power connection, electricity consumption bills over a period, first sale bill, excise licence, extract of Excise Register or of Production Register, etc.

'(iii) The decision of the Implementing Agency subject to such directions as Government may issue from time to time, in this regard will be final and binding on the eligible unit.

The last Clause 2.1(iii) is actually mentioned in the Scheme as 2.1(ii), but since the Counsel for the petitioner stated that it is (iii), we have taken it to be (iii). Clause 2.2, is not necessary for our purpose. Thereafter, there is Clause 2.3 under the heading 'Effective Steps', and it runs as under:

'2.3. For the purposes of the 1979, Scheme, 'effective steps' will comprise initial effective steps and final effective steps.'

Thereafter, there is recital as to which shall be the initial effective steps and which shall be the final effective steps, followed by some explanations. We have here to state that there now is another explanation which runs in the following terms :---

'II. Based on the documentary evidence led by the eligible unit in this regard, the Implementing Agency shall determine the date on which all the effective steps, both initial and the final, are completed. The decision of the Implementing Agency in this regard shall be final and binding.'

Then the Scheme proceeds with 'Existing Unit', 'Explanation/Diversification', 'Fixed Assets', 'Gross Fixed Capital Investment', etc. and other explanations. Then at a latter stage the period of eligibility under Part I is defined in Clause 2.12. In this particular case, the period may extend to nine years. Thereafter it provides for period of review under Part I in Clause 2.13 and different periods of revision are given in this clause. Then Clauses 2.14 and 2.15 are not relevant. At Clause 2.16, it provides for sales-tax liability. Then the Scheme provides for certain other thing under Clause 3. Thereafter, at Clause 4 under the heading 'General Provisions: Agencies for implementing the Scheme', the Scheme gives the details as to the implementation of the Scheme. Under Clauses 4.1 and 4.2, the State Industrial and Investment Corporation of Maharashtra Ltd. and the Regional Development Corporations are respectively to implement the Scheme.

Clause 4.2 runs as follows :---

'4.2. The Regional Development Corporation shall implement the Scheme in respect of Small Scale Units coming within their respective jurisdictions, as indicated below:'

The Marathwada Development Corporation Limited is at Sr. No. 2 governing the present petitioner, who is situated in Latur. There is an explanation added to this clause, which is in the following terms :---

'Where an Eligibility Certificate is issued in favour of an SSI unit by the Regional Development Corporation concerned, the unit will continue to remain, for the purposes of incentives and other connected matters, with that Regional Development Corporation even though after the grant of Eligibility Certificate the unit ceases to be an SSI unit.'

29. Then, at Clause 4.4 under the heading 'application for eligibility', it is provided as follows:

'4.4. The application for eligibility under the 1979, Scheme shall be filed by the eligible unit after it has taken the initial effective steps. Any application filed earlier will not be entertained by Implementing Agency concerned. The application for eligibility should be supported by documentary evidence in regard to the initial effective steps taken by the unit.'

'4.5. For claiming eligibility under the 1979 Scheme, the eligible unit should not only file the application for eligibility but should also complete all the effective steps (i.e. both the initial and the final effective steps) on or before 31st March, 1983.'

However, in this case, the date on which the effective steps, both initial and final, were completed is 10th January, 1983. Thereafter, Clause 4.6 provides as follows :

4.6. No right or claim for any incentive under this Scheme shall be deemed to have been conferred by the Scheme merely by virtue of the fact that the unit has fulfilled on its part the conditions of the Scheme. The incentives under the Scheme cannot be claimed unless the Letter of Intent/Eligibility Certificate has been issued under the Scheme by the Implementing Agency concerned and the unit has complied with the stipulations/conditions of the Letter of Intent/Eligibility Certificate.'

30. Part 5 of the said Scheme details the benefits, which are available to the petitioner and other similarly situated persons, who follow the Scheme and fulfil the conditions of the Scheme. As the petitioner falls in Group D mentioned in Clause 5.3, the period of eligibility to have the benefits will be of nine years. We are not referring to the benefits given under the Scheme, because it is undisputed that the benefits are in the form of sales tax exemption, electricity tariff refund and interest-free loans, etc. It is not disputed that such benefits are available to the eligible unit under the scheme and, therefore, we need not detain ourselves to refer to that part in detail. Then the scheme further proceeds and covers many other units with which we are not concerned. There is an annexure also to this scheme. The scheme ends with the words that it is issued by order and in the name of the Governor of Maharashtra and signed by D.M. Sukhthankar, Secretary to Government. The scheme is addressed to several agencies such as Industrial Commissioner, Managing Directors of different Regional Development Corporations, Divisional Commissioners and Collectors, all other Departments of Mantralaya and to other officers for information. And lastly it is stated that it is addressed to the Director-General of Information and Public Relations, Bombay, with a request to issue a suitable press note and to arrange for wide publicity in the local and mofussil papers with 10 spare copies. After the Scheme, there is also accompanying an annexure to the Government Resolution and this annexure gives the division-wise break up of various groups of units in several divisions, with which we are not concerned. The present petitioner falls at Sr. No. 18 in Aurangabad Division, Osmanabad District, as his unit is situated at Latur. This Scheme is an unamended scheme of 1979. Further, there is another scheme, which is dated 5th July, 1982, which is annexed to this petition at Exh. (B). This is also a scheme dealing with dispersal of industries, but we are not concerned with the provisions of that scheme in this petition.

31. As stated above, the petitioner has challenged in this petition this scheme on the ground that he has been denied certain benefits under the scheme, which are available to him as above. Learned Counsel for the petitioner first of all contended that his case rests on the principle of promissory estoppel. He contended that he is not claiming any right either under any statute or under any law, but he is pressing his right on the principle of promissory estoppel, which has been enunciated by the Supreme Court in several decisions. As the controversy in this case can be narrowed down to a very short determination with reference to this principle, we will show first of all how the principle is attracted in this case and how learned Counsel has based his arguments on the principle of promissory estoppel.

32. This principle of promissory estoppel is not defined in any law. However, it would be useful to refer to Halsbury's Laws of England, Fourth Edition, Volume 16, to have an authenticated definition of the principle of promissory estoppel. It is stated at page 1017 of the said Book as under in respect of the principle of promissory estoppel :---

'1514. Promissory estoppel.

When on party has, by his words or conduct, made to the other a clear and unequivocal promise or assurance which was intended do affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to heir previous legal relations as if no such promise or assurance had been made by him, but the must accept their legal relations subject to the qualification which he himself has so introduced. This doctrine, which is derived form a principle of equity enunciated in 1877, has been the subject of considerable recent development and is still expanding. It differs from estoppel in pais in that the representation relied upon need not be one of present fact.

The doctrine cannot create any new cause of action where none existed before, and it is subject to the qualification (1) that the other party has altered his position; (2) that the promissory can resile from his promise on giving reasonable notice, which need not be a formal notice, giving the promise a reasonable opportunity of resuming his position; (3) the promisee only becomes final and irrevocable if the promisee cannot resume his position. The doctrine is known variously as 'equitable' or 'promissory' or 'quasi estoppel'.'

33. Learned Counsel for the petitioner, Shri M.V. Paranjpe, contended relying on the provisions of the scheme, that there are representations made in the scheme to offer incentives. If the incentives were offered and the scheme was to be made known to all persons and if the petitioner has invested large sum in his industry and has acted on the faith of these representations that he will obtain the eligibility certificate and necessary benefits under the scheme, then respondent No. 1 cannot resile from the representations made in the said scheme. For this purpose, he relied on the judgment of the Supreme Court in (The Union of India and others v. M/s. Indo-Afghan Agencies etc. A.I.R. 1968 S.C. 718. As far as India is concerned, this judgment of the Supreme Court can be taken to be the original judgment enunciating the principle of promissory estoppel. Learned Counsel for the petitioner heavily relied on this judgment and contended that the Supreme Court has stated in this judgment that the crown or the Government is also bound by the promises made by it and if the promises have been made and the persons and citizens have acted on the basis of those promises, then the Government, even if the scheme is of executive character, cannot take the defence of executive necessity or any other defence and it must be held that the Government is bound by the promises made by it to the citizens. This was a case where a scheme, namely, Export Promotion Scheme providing incentives to exporters of woollen goods under the Imports (Control) Act, 1947, was in issue. By the said scheme, the exporters were invited to get themselves registered with the Textile Commissioner and it was represented that the exporters will be entitled to import raw materials of the total amount equal to 100 per cent of the f.o.b. value of exports. The respondents firm exported woollen goods of the f.o.b. value of Rs. 5,03,471.73 np., but the Deputy Director in the office of the Textile Commissioner, Bombay, issued to the respondents an Import Entitlement Certificate for Rs. 1,99,459 only. The respondents under Article 226 of the Constitution moved a petition before the High Court of Punjab praying for a writ or an order directing the Union of India and other concerned officers to issue a licence permitting import of certain raw materials of value of Rs. 3,04,012.73 np. The High Court held that the respondents were entitled to the issue of licence as prayed for. In appeal by the Union of India and others to the Supreme Court , J.C., Shah, J., (as he then was), observed as follows (at page 726) :---

'We hold that the claim of respondents is appropriately founded upon the equity which arises in their favour as a result of the representation made on behalf of the Union of India in the Export Promotion Scheme, and the action taken by the respondents acting upon that representation under the belief that the Government would carry out the representation made by it. On the facts proved in this case, no ground has been suggested before the Court for exempting the Government from the equity arising out of the acts done by the exporters to their prejudice relying upon the representation.'

At other places, the Supreme Court has held :---

'....We cannot, therefore, accept ... that the courts are powerless to grant relief, if the promised import licence is not given to an exporter who has acted to his prejudice relying upon the representation.'

At page 728 of the same judgment in paragraph 23, the Supreme Court has further observed :---

'Under our jurisprudence the Government is not exempt from liability to carry out the representation made by it as to its further conduct and it cannot on some undefined and undisclosed ground of necessity or expediency fail to carry out the promise solemnly made by it, nor claim to be the judge of its own obligation to the citizens on an ex parte appraisement of the circumstance in which the obligation has arisen....'

This is, in our opinion, a clear case of promissory estoppel of further conduct. Here is a representation made by the Government, which is on the record and an assurance, which related to the further conduct and this representation gave rise to enforceable obligation in this case. It may also be noted that in this case the representations were specifically made acting under the provisions of the imports and Exports (Control) Act. This was a scheme based on this Act and it involved import and export and Textile Commissioner was bound to consider the application for entitlement under the provisions of the said Act. Then, Shri Paranjpe relied on another authority of the Supreme Court reported in (Century Spinning and . and another v. The Ulhasnagar Municipal Council and another, : [1970]3SCR854 . In that case, in paragraph 11 relying on the judgment in the case of Union of India v. M/s. Indo Afghan Agencies Ltd. cited (supra), the Supreme Court observed as follows :---

'Public bodies are as much bound as private individuals to carry out representations of facts and promises made by them, relying on which other person have altered their position to their prejudice. The obligation arising against an individual out of his representation amounting to a promise may be enforced by a person who acts upon the promise; when the law requires that a contract enforceable at law against a public body shall be executed in the manner prescribed by statute, the obligation if the contract be not in that form may be enforced against it in appropriate cases in equity.....'

In this case, learned Counsel for the petitioner also faintly suggested that this case is also an authority to hold that the petitioner may not be restrained from substantiating his right to obtain the eligibility certificate and his right in equity can be granted by this Court under Article 226 of the Constitution, although there is no direct discussion on this point in both the judgment of the Supreme Court.

34. The third case which was relied upon by learned Counsel for the petitioner was (M/s. Motilal Pandampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh and others : [1979]118ITR326(SC) . This was a judgment delivered by the Division Bench of the Supreme Court and in this case the Supreme Court has enunciated the principle of promissory estoppel. We will not burden this judgment with the detailed narration given by the Supreme Court. Suffice it to say that the doctrine of promissory estoppel has been completed elaborated by the Supreme Court and the scope of this doctrine has been made sufficiently wider. It is stated in this judgment and it was heavily relied upon the learned Counsel for the petitioner that doctrine of promissory estoppel is available also as a cause of action, if necessary to satisfy the equity. It is not necessary, in order to attract the applicability of the doctrine of promissory estoppel, that the promisee, acting in reliance on the promise, should suffer any detriment. What is necessary is only that the promisee should have altered his position in reliance on the promise. But if by detriment we mean injustice to the promisee which would result if the promissory were to resile from his promise, then detriment would certainly come in as a necessary ingredient...... Where the Government makes a promise knowing or intending that it would be acted by the promisee, and, in fact, the promisee acting in reliance on it, alters his position, the Government would be held bound by the promise and the promise would be enforceable against the Government at the instance of the promisee, notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by Article 299 of the Constitution..... The Government cannot claim to be immune from the applicability of the rule of the promissory estoppel and repudiate a promise made by it on the ground that such promise may fetter its future executive action.

35. However, in the same judgment, the Supreme Court has further observed as follows :---

'....But since the doctrine of promissory estoppel is an equitable doctrine, it must yield when the equity so requires. If it can be shown by the Government that having regard to the facts as they are subsequently transpired, it would be inequitable to hold the Government to the promise made by it, the Court would not rise an equity in favour of the promise and enforce the promise against the Government ....'

The judgment of the Supreme Court highlights the principle of promissory estoppel, which can be relied on between the Government acting in its executive power and the citizens. It also gives direction to show as to in what kind of cases this principle of promissory estoppel will not be attracted. If the Government is able to show the facts, which have transpired since making of the promise and is further able to show that the public interest would be prejudiced where the Government held by the promise made by it, and if it brings all the facts before the Court, the Court will have to balance the public interest in the Government (sic) and cannot hold it liable for carrying out the promise made by it to the citizen. If the public interest suffers or, is likely to suffer, by carrying out the promise, then the Court will have to decide which way the equity lies. However, it has also been observed by the Supreme Court that the Court would not act on the mere ipse dixit of the Government, for it is the Court which has to decide and not the Government whether the Government should be held exempt from liability. It is also stated that ex parte appraisement of the circumstances of the Government alone will not be a sufficient answer for the Court to hold Government exempt from the applicability of the principle promissory estoppel, that is to say, the Government is not the sole judge of its own case in repudiating the promise. The Government cannot claim to be exempt from the liability to carry out promise of some indefinite and undisclosed ground of necessity or expediency.

36. The enunciation of the principle of promissory estoppel made in these judgment has been again reviewed by the Supreme Court in its an other decision in (M/s. Jit Ram Shiv Kumar and others v. The State of Haryana and another : [1980]3SCR689 . This is also a case decided by the Division Bench of the Supreme Court presided over by S. Murtaza Fazal Ali and P.S. Kailasam, JJ. In this case, the question for determination arose before the supreme Court in the following circumstances.

That certain octroi duty was to be imposed by the Municipal Committee and it appears that the municipal committee had on certain earlier occasion amended certain rules by which duty was not required to be paid by the concerned persons. However, the Government had power to direct the Municipal Committee to collect the octroi, duty, under which the Municipal Committee had failed to take action under section 236 of the Punjab Municipal Act. In connection with this case, the Supreme Court had an occasion to consider and examine the principle of promissory estoppel and the Supreme Court has exhaustively dealt with the case law on this point and has also referred to the authorities, which were relied upon here also by learned Counsel for the petitioner, and in this case, the Supreme Court has given a summary of the principle of promissory estoppel at page 1302 as follows :---

'The scope of the plea of doctrine of promissory estoppel against the Government may be summed up as follows :

(1) The plea of promissory estoppel is not available against the exercise of the legislative functions of the State.

(2) The doctrine cannot be invoked for preventing the Government from discharging its functions under the law.

(3) When the officer of the Government acts outside the scope of his authority the plea of promissory estoppel is not available. The doctrine of ultra vires will come into operation and the Government cannot be held bound by the unauthorised acts of its officers.

(4) When the officer acts within the scope of his authority under a scheme and enters into an agreement and makes a representation and a person acting on that representation puts himself in a disadvantageous position, the Court is entitled to require the officer to act according to the scheme and the agreement or representation. The officer cannot arbitrarily act on his mere whim and ignore his promise on some underlined and undisclosed grounds of necessity or change the conditions to the prejudice of the person who had acted upon such representation and put himself in a disadvantageous position.

(5) The officer would be justified in changing the terms of the agreement to the prejudice of the other party on special considerations such as difficult foreign exchange position or other matters which have a bearing on general interest of the State.'

37. Then, in paragraph 40 of the said judgment, the Supreme Court has examined the case of Moti Lal Padampat Sugar Mills Co. (P) Ltd. cited (supra) and it is especially stated that in that case, the question as to when the doctrine of promissory estoppel would be attracted against the Government validly confirming what has been consistently stated by the Supreme Court with some qualifications. It is stated thus :

'....there can be no promissory estoppel against the exercise of legislative power and the legislature cannot be precluded from exercising its legislative functions by resort to the doctrine of promissory estoppel... When the Government owes a duty to the public to act differently, promissory estoppel could not be invoked to prevent the Government from doing so. The doctrine cannot be invoked for preventing the Government from acting in discharge of its duty under the law. The Government would not be bound by the acts of its officers and agents, who act beyond the scope of their authority. A person dealing with an agent of the Government must be held to have noticed all the limitations of his authority.

Expressing agreement with the above, the Supreme Court, however, has stated certain qualifications and explained the case. We need not go into the discussion of the subjects discussed in both the two judgments. Suffice it to say that the principles laid down in these cases are sufficiently clear and it can be summarised as follows :

(1) That principle of promissory estoppel can be attracted even in the case of the Government acting in its executive capacity;

(2) There must be sufficient representation made; and

(3) The person must have acted on that representation to his detriment on the faith of the representation, then the doctrine of promissory estoppel becomes applicable irrespective of the fact whether the Government is a party to the transaction.

Bearing in mind these principles, we will now consider the present case.

38. Before doing so, we may refer to another decision, on which reliance was placed by learned Counsel for the petitioner. This was a decision given by a Division Bench of the Gujarat High Court in (M/s. Kothari Products Company, Rajkot v. Govt. of Gujarat, : AIR1982Guj107 . This was a direct case and, perhaps, the nearest case, which directly supports the contention of the petitioner. Here, in this case, under a scheme, for a factory which was dealing in manufacture of Vanaspati ghee, some concessions were made available. As a result of this encouragement, the petitioner was compelled to stop its certain activities at certain times and it started manufacturing Vanaspati ghee by extraction of groundnut oil as also from minor oil seeds like cotton seeds. For this purpose, the petitioner had erected plants, where these operations were carried out by the petitioner. It appears that in this case, the scheme was in operation and in 1979, the petitioner has also obtained the benefits of the scheme. Learned Counsel for the petitioner relied on paragraph 7 of this judgment. In that paragraph, the learned Judges of the Gujarat High Court culled out the paragraph relying on the judgment in Jit Ram's case : [1980]3SCR689 , and have upheld the plea of the petitioner in that case and they have granted the necessary relief to the petitioner and they have applied the principle of promissory estoppel in that case. Learned Counsel for the petitioner heavily relied on this case, because in this case, large sums of money were invested relying on the assurance of the Government and benefits under the scheme were also given in 1977. It was represented that doctrine of promissory estoppel is applicable and, therefore the Government was directed not to apply certain resolutions, which were passed in the year 1979. Learned Counsel for the petitioner, relying on all these cases, contended, bearing the observations of the Supreme Court and to the Gujarat High Court, in mind that in the present case also the petitioner stands in the similar position, like the one, which is disclosed by the judgments, which are cited above. In our opinion, after having gone carefully through all the judgments, including the judgment of the Supreme Court in Jit Ram's case, it is not possible to hold that these cases have gone into the particular provisions of the particular schemes as were challenged before the courts and which were considered by the courts. Even the latest authority of the Gujarat High Court, which was cited by learned Counsel for the petitioner, does not describe the actual terms of the scheme. In the judgment of the Supreme Court, the reference to the principle of promissory estoppel was based on the undisputed facts that certain assurances were given by the Government and, therefore, we may immediately refer to the case of M/s. Motilal Padampat sugar Mills Co. Ltd., : [1979]118ITR326(SC) . In this judgment, it is useful to refer to the specific portion where this particular position is made clear by the Supreme Court itself. From the facts appearing at page 626, it appears that the appellant in that case had approached different financial institutions, on the basis of an announcement by the Secretary to the Industries Department of Uttar Pradesh that certain industrial units will be exempt from payment of sales tax for a period of three years, for financing this project which the appellant intended to set up in Uttar Pradesh for manufacturing Vanaspati ghee and this financing of project was firstly doubted by those whom the appellant approached, and, therefore, the appellant approached the Government to find out what were the assurances of the Government. The appellant's representative met the 4th respondent, who was then the Chief Secretary as also Advisor to the Governor, and intimated to him that the appellant was setting up the factory solely on the basis of the assurance given on behalf of the Government regarding exemption from sales tax. The 4th respondent there upon reiterated the assurance of the Government that the appellant's unit will be granted sales tax exemption, but this was not satisfactory and, therefore, the appellant addressed a letter to the Government and it is in pursuance of this letter that the fourth respondent, who was acting as Advisor to the Governor, replied to the appellant and stated that certain assurances were given. It was found in that case that the fourth respondent categorically stated in his letter in reply to the appellant's letter that Vanaspati ghee factory will be entitled to exemption under the U.P. Sales Tax Act from the date of production or from the date of power connection. In view of this unequivocal assurance by the fourth respondent who was not only the Chief Secretary, but also the Advisor to the Governor functioning under the President's rule, the appellant went ahead with the setting up of the Vanaspati factory. The appellant by its letter dated 25th April, 1979 advised the 4th respondent that the U.P. Finance Corporation being convinced by the clear and categorical assurance given by the 4th respondent that the Vanaspati factory of the appellant would be entitled to exemption from sales tax for a period of three years from the date of commencement of production, had sanctioned financial assistance to the appellant and the appellant was going ahead with the project in full speed to enable it to start production at the earliest. It is against this background that this principle came to be enunciated by the Supreme Court and it is borne out by the facts in this case appearing in paragraph 3 where there is a specific reference to the fact that the 4th respondent by his letter, on behalf of the State Government, gave an assurance that the appellant would be exempt from liability of payment of sales tax for a period of three years. It is relying on this specific assurance given by a responsible officer of the State Government, the Supreme Court has observed in that case that the basis of the doctrine of promissory estoppel is the interposition of equity and equity has always, true to form, stepped in to mitigate the rigours of strict law. It is against this background that the doctrine of promissory estoppel was held attracted in that case. And having regard to this background, we do not find how this case on facts can assist the petitioner in this case.

39. The next case, which is nearest to the case of the petitioner and which is heavily relied upon by learned Counsel for the petitioner, is of Gujarat High Court. In this case also, we have carefully considered the judgment of the Gujarat High Court and we find that here the Government had actually given the benefits of the scheme to the petitioner in this case in the year 1977 and he was deriving those benefits for certain period. It was only after the issue of certain resolutions by the Government of Gujarat that the petitioner there was denied the benefits or the benefits were taken away. One thing is clear that the petitioner there was actually enjoying the benefits provided under the relevant scheme by the Government from 1977. It is because of this denial or taking away of the benefits that the petitioner was forced to file the writ petition. If the petition was in fact given those benefits under the particular scheme, and an assurance given in pursuance of which the petitioner claimed the benefits, then it must be said that the Gujarat High Court rightly upheld the claim of the petitioner and the Court was justified in granting the relief which the petitioner prayed for in that case.

40. Having distinguished those two cases on facts, we now come to the present petition. We have already narrated above the provisions of the scheme as are contained in the Government resolution. From the facts appearing in the above two cases, it cannot be said that the particulars of the relevant schemes were stated in them and, therefore, it cannot be said that the Court had an occasion to consider the particular provisions of the relevant schemes.

41. As against the arguments of learned Counsel for the petitioner, Shri S.S. Choudhari, learned Government Pleader, relied on certain other judgments of the Supreme Court to show that the doctrine of promissory estoppel is not available as against the Government acting in its executive capacity. It was stated by the learned Government Pleader that the judgment of the Supreme Court in Jit Ram's case : [1980]3SCR689 itself mentions this fact in paragraph 12, wherein the Supreme Court has observed as follows :---

'A Bench of Four Judges of this Court in a decision (Excise Commr. U.P. Allahabad v. Ram Kumar, : AIR1976SC2237 , after examining the case-law on the subject observed that 'it is now well settled by a catena of decisions that there can be no question of estoppel against the Govt. in exercise of its legislative, sovereign or executive powers'. The earlier decisions of this Court in N. Ramanatha Pillai v. State of Kerala . A.I.R. 1973 S.C. 2V41, and (State of Kerala v. Gwalior Rayon Silk .,.... : [1974]1SCR671 were followed. It may, therefore, be stated that the view of this Court has been that the principle of estoppel is not available against the Government in exercise of legislative, sovereign or executive power.'

42. Then the learned Government Pleader relied on the judgement of the Supreme Court in Excise Commissioner, U.P. Allahabad, etc. etc. v. Ram Kumar etc. etc. : AIR1976SC2237 . It is true that all these cases have been formerly referred to by us in this judgement. However, a reference would be necessary to the observations of the Supreme Court made in this judgment at Head Note B on page 2237. The Supreme Court observed :---

'It is now well settled that there can be no question of estoppel against the Government in the exercise of its legislative, sovereign or executive powers. Hence, the fact that sales of country liquor had been exempted from sales tax at the time of auction of licences to sell such liquor by retail, could not operate as an estoppel against the State Government and preclude it from subjecting the sales of tax if it felt impelled to do so in the interest of the revenues of the State which are required for execution of the plans designed to meet the ever increasing pressing needs of the developing society.

'The Government cannot divest itself of the right incidental to its office by conduct which in the case of a private person, would amount to estoppel and the High Court is clearly in error in characterizing the demand for sales tax made by the State as illegal.'

Then reliance was also placed on : (1973)IILLJ409SC , etc. etc. Relying on these judgments, it was contended by the learned Government Pleader that even if the scheme in question is of the executive character and it does contain certain representations as alleged by the petitioner, it cannot be said that the Government is bound by these representations. We are afraid that this contention cannot be accepted in this case. The fact whether the Government is bound by its promise made in executive capacity or not is now put beyond doubt by the judgments of the Supreme Court. In this particular case, however in our opinion, as the case is to be determined on the facts appearing relying on the provisions of the scheme, this question hardly arises for consideration and as to whether the Government is bound by its promises made in its executive capacity and whether it is bound to respect its promise or whether it can resile from them is, therefore, of no relevant in this case and therefore, the contention of the learned Government Pleader, relying on the decisions of the Supreme Court to show that the principle of promissory estoppel is not applicable to the Government acting in its executive capacity cannot be accepted as its face value in view of the special facts of this case.

43. We have asked leaned Counsel for the petitioner, during the course of the arguments, whether he is able to show us that any provisions of the scheme presently under consideration were also similarly termed and considered in the judgments relied by him, but the learned Counsel was unable to show any direct provision of the scheme referred to in 1968 S.C. 718. In our opinion, the provisions of the scheme considered in A.I.R. 1968 S.C. 718 are jumble of provisions and they are of legislative character and they are not of executive character. They contained such unequivocal assurances which can be even enforceable on the ground of violation of Constitution if not adhered to and this fact has been also stated in the judgment. In view of the absence of the particulars of the schemes, which were discussed in the various judgments, cited before us, we have no alternative but to look at the provisions of the scheme under consideration and to interpret them in this particular case.

44. In this connection learned Counsel for the petitioner, first of all relied on the provisions of the scheme as a whole stating that the definition clause appearing at Clause II itself gives a right to the petitioner to claim the eligibility certificate, if he produced the kind of evidence mentioned in Clause 2.1 of the scheme. He also relied on Clause 1.2 stating that the scheme is to remain in force till March 31, 1983 and he has completed all the initial, final and effective steps under the scheme before that date. It is undisputed in this case that the petitioner has completed all the initial and final steps which are required to be completed by him were he to get the eligibility certificate. Learned Counsel for the petitioner strongly relied on two letters on record in order to show that his right has almost turned into hope and in this connection, he relied on these two letters to get the eligibility certificate and stated that he is entitled to get the certificate immediately. In this behalf, learned Counsel for the petitioner cited before us an unreported judgment of the Supreme Court in Bhim Singh and others v. The State of Haryana and others 1979 U.J.11 Before we proceed to take a note of this case it is necessary to refer to the contention of learned Counsel for the petitioner. Learned Counsel contented that in view of the letter dated 13-12-1982, at page 158 of the paper book, written by the Managing Director of respondent No. 2 to the Under Secretary to the Government in regard to the eligibility certificate under the package scheme of incentives it is clear that the petitioner has completed all the initial and final effective steps. He relied on this letter, especially Clauses 1, 2 and 3 of the same, which are as follows :---

'1. The unit M/s. S.K. Oil and Pulses Mills, Industrial Estate, Shivaji Nagar, Latur, has been visited. The unit has completed all the necessary formalities and has taken all effective steps. The unit is found to be functioning with effect from 26-1-1982.

2. As stated by the party, the unit has first got S.S.I. Registration on 19-4-1960 and final S.S.I. Registration on 17-5-1982.

3. However while the formalities for issue of Eligibility Certificate were completed and by the time this unit became ripe for E.C. the order about special instruction on oil mills was received vide G.D. No. IDL/1982/(4094)/IND 8 dated 20-10-82.

4. The information submitted by the unit in letter dtd. 20-11-82 is found to be correct.

5. However on the basis of instruction received from Govt. vide their Letter No. IDL/1082 (4094) IND-8 dtd. 1-12-1982, the case of this unit being referred to Oil-seeds Corporation, Bombay for issue of N.O.C.'

The reference made in this letter to the Government letter dated 25-10-1982 is the one to which we have earlier referred. The learned Counsel for the petitioner relied on this letter to show that the petitioner has completed all initial and final steps under the scheme and nothing remains to be done by the petitioner in order to be entitled to the issue of the eligibility certificate. However, respondent No. 1 has further created an obstacle in the way of the Petitioner and that obstacle is in the form of the letter dated 25-10-1982, as we have shown earlier, which contains direction to respondent No. 3 and demands further clearance certificate from respondent No. 3 and learned Counsel for the petitioner contended that in view of the clear reply of respondent No. 3 in this case that the said Corporation is unable to process the application received by it, now, the Government's stand that clearance certificate at the hands of respondent No. 3 is necessary may amount to dishonesty and hostility to the petitioner. Therefore, in view of this clear position that respondent No. 3 is unable to process the application of the petitioner, the Government's insistence still on the further scrutiny of the petitioner's application is highly objectionable and relying in this letter, learned Counsel for the petitioner contended that the petitioner has got every right to claim the eligibility certificate. The other letter, which was relied on by learned Counsel for the petitioner was the letter written by the General Manager of the District Industries Centre, Osmanabad, to the General Manager of respondent No. 2 which is dated 24th September, 1982. By this letter, the General Manager of the District Industries Centre, Osmanabad, submitted the required information to the office of respondent No. 2 and in Column No. 12, the General Manager has recommended as under :---

'12 Recommendations of District Industries Centre.

To increase the industrial activity in the backward area, such as Osmanabad district the incentives under package scheme of 1979 have given more stretch (sic) in backward areas. Oil mill is an agro-based industry, which has got more scope in this district. The said incentive may be released and it will not affect on (sic) existing oil units in this district. Hence it is recommended that the said incentives may be granted to the above oil mill unit at Lathur.'

Learned Counsel for the petitioner was justified in relying on this letter and in making a strong grievance that in spite of such recommendation now the Government is not prepared to give what is legitimately due to the petitioner and the hostility shown by the Government in delaying the issue of eligibility certificate in mala fide. However, we are afraid that even though we have much sympathy for the petitioner, we cannot assist him in this matter because the scheme, which is the backbone of the claim of the petitioner made in this petition, is not framed under the provisions of any statute or law and, therefore, it cannot be said that it has the force of law and the right of the petitioner is enforceable thereunder as being legal. It was in this connection that learned Counsel for the petitioner referred to the judgment of the Supreme Court in the case of Bhim Singh and others, cited (supra), This is a short judgment of the Supreme Court where it was stated thus :---'By virtue of Ex. 1.1, the State (Respondent) held out certain specific promise as an inducement for the appellants to move into a new Department (Agricultural Department). After they had gone over to the Agricultural Department, the State, by virtue of its EX. P. 3, sought to go back upon the earlier promise made in EX. P. 1. The appellants having believed the representation made by the State and having further acted thereon cannot now be defeated to their hopes which have crystallised into rights, thanks to the application of the doctrine of promissory estoppel. Therefore, it is not open to the State, according to the law laid down by this Court, to back-track. We, therefore, direct the State to implement EX. P-1, and confer such rights and benefits as are promised thereunder in entirety.....'

Relying on these observations, it was contended that it would be inequitable and almost contrary to the said judgment of the Supreme Court if the petitioner is not given the relief claimed by him in this petition.

45. It is true that the judgment of the Supreme Court was dealing with the transfer of the departmental employees to another department, which was created under a scheme sponsored by the Government and it contained certain promises. In that particular case the departmental employees on the basis of the promises contained in the scheme had actually gone to the other department and the Supreme Court rightly held that in view of the law which was laid down by the Supreme Court, and we suppose the law relating to promissory estoppel which we have earlier quoted, the Government was bound by its promises by virtue of the doctrine of promissory estoppel. However, we are afraid that this decision of the Supreme Court will not be of any assistance to the petitioner in the present case. Learned Counsel for the petitioner heavily relied on this judgment, but in view of the fact that the scheme, which is presently under consideration, is not framed under any statute or law, it cannot be said that the ratio of the above decision will be applicable to the present case.

46. Learned Counsel for the petitioner then referred to the provisions of the scheme, especially Clause 2.1, which requires him to submit several documents. Relying on this particular provision and further relying on the provisions of the rules framed under this scheme, it was contended that if a unit has competed all the steps contemplated by the scheme, then the eligibility certificate must follow as a matter of course. The provisions, which were relied on by learned Counsel for the petitioner, were that the scheme gives a right to go on with the production and after establishment of the unit it also gives him a chance to produce certain documents, such as, the electricity consumption bills, excise licence, extract of production register, etc. It is admitted in this case that all these things have been done by the petitioner and it is contended that the authority, which is designated under the Scheme, that is, the implementing agency, must issue the eligibility certificate under, Rule 2.2, Chapter-II of the rules framed by it. The said Rule 2.2 states as follows :---

'2.2 If the applicant unit having fulfilled the necessary conditions as per the requirements of the Relevant Scheme has gone in production, the implementing Agency may grant an Eligibility Certificate effective from such date as specified under the relevant scheme'.

Now, relying on these provisions of Rule 2.2, and also on the fact of completion of all the steps, which the petitioner has done, learned Counsel contended that there is no right in the implementing agency to deny the certificate as claimed by him. In this connection, learned Counsel invited our attention to a judgment of the Privy Council in (Alcock Ashdown and Company, Limited v. The Chief Revenue Authority, Bombay, A.I.R. 1923 P.C. 138. It was contended by learned Counsel that the word 'may' used in Rule 2.2 Chapter II of the said rules must be taken to mean that if the unit has completed all the stipulated requirements and has gone in production, the authority under the scheme is bound of follow the scheme and give the eligibility certificate forthwith. It was also contended by him that the word 'may' must be interpreted as 'shall' and the implementing agency, instead of 'may', must be taken to be under an obligation that it 'shall' grant the eligibility certificate on fulfilment of all the requirements. And, for this purpose, learned Counsel for the petitioner relied on the judgment of the Privy Counsel, cited (supra), and especially on the observations made by the learned Lords of the Privy Council at page 144, which are as follows :---

'...When a capacity or power is given to a public authority, there may be circumstances which couple with the power a duty to exercise it. To use the language of Lord Cairns in the case of Julius v. The Bishop of Oxford 5 A.C. 214-49...

'There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so.'

Relying on this passage and the observations of the Privy Council, it was contended by learned Counsel for the petitioner that the power which is granted in the implementing agency under the scheme is a power to grant the eligibility certificate and the conditions having been satisfied by the unit, this power has now turned into a duty to grant the certificate to the unit. We are afraid that this contention cannot be accepted. The case of the Privy Council is an authority for the proposition that statutory duty must be preferred, as in that case, under section 51 of the Income-tax Act, 1918, the Chief Revenue Authority was under a duty to state a case before the High Court. This duty, which was laid down by the Act, was a duty which arose from the provisions of a statute. It is in connection with this that the interpretation of the word 'may' appearing in the Act and the duties of the concerned officer came to be examined by the Privy Council. If the statue or a law had clearly cast a duty on the particular public authority to do a particular thing, then that authority is under an obligation to do it and it was against this background that the Privy Council had an occasion to consider the nature of the provisions of the Act and observed that the authority will have to consider something which is in the statute. Here, in this case, we are not dealing with any statute or an Act, much less, with the statutory provision whatsoever. We are dealing with an executive scheme, the claim under which is based on an equitable principle. In such a case, it would be very difficult to apply the observations made by the Privy Council in regard to the action of scheme authorities when they do not act under a particular statue or Act. Reliance placed by learned Counsel for the petitioner on the case of Privy Council, therefore, is of no assistance to him in this particular case.

47. Now, coming to the merits of the scheme, the learned Government Pleader in this connection relied on the provisions of the scheme and specially Clause 4.6 of the same. He contended that in view of this Clause 4.6 no right or claim for any incentives under this scheme shall be deemed to have been conferred by the scheme merely by virtue of the fact that the unit has fulfilled on its part the conditions of the scheme. He further contended that the incentives under the scheme cannot be claimed unless the letter of intent/eligibility certificate has been issued under the scheme by the implementing agency concerned and the unit has complied with the stipulations/conditions of the letter of intend/eligibility certificate. Now, in order to interpret the provisions of this scheme it cannot be said that we have any assistance from any other authority and, therefore, we have to interpret this scheme unaided by any precedent. This is a scheme, which is unique in its nature, in the sense that it is a unilateral declaration under which certain assurances were given by the Government. The word 'scheme' which is used will have to be understood in this background. The title of the said scheme is 'Package Scheme of Incentives'. The word 'package' means 'Bundle of things packed, parcel; box etc. in which goods are packed...' (The Concise Oxford Dictionary, Sixth Edn. 790). In the context of this scheme, it is a 'package' of incentives which is clearly stated in the preamble of the scheme. The word 'scheme' would mean a method, plan or an arrangement' and such a plan or an arrangement is coupled with some unified concept and that concept underlining this plan is of offering certain incentive and benefits. So, here is a case of a unique scheme offering certain benefits and incentives to certain persons and it is in this context that this method has been expressed in the written form entitled 'Dispersal of Industries...' which is issued by the Government. This scheme is not gazetted but that does not make any difference, because from the provisions of the scheme itself it is clear that it was sufficiently made public and announced with wide publicity and the Government desired to offer certain incentives for eligible units if they act on the basis of the provisions of the scheme. If we go by the provisions of the scheme, the provisions contained in Clause 4.6 cannot be separated or isolated. The ordinary rule of interpretation is that a particular provision must be and will have to be read in the context of the other provisions. The provisions contained in Clause 4.6 cannot be separated from the rest of the provisions and they will have to be read of a whole. Under the provisions of Clause 4.4, the application for eligibility certificate under the 1979 scheme is to be filed by the eligible unit after it has taken the initial effective steps. The eligible unit is given a time limit within which it haws to take all the initial steps and the implementing agency is not to entertain any application before that time. The application is to be supported by documentary evidence in regard to initial and effective steps. The claim under the 1979 scheme is sustainable only if the eligible unit also completed all the formalities of effective steps. It was contended by learned Counsel for the petitioner, that Clauses 4.5 and 4.6 of the scheme are two different things. In this behalf, he contended that he is claiming only the eligibility certificate under Clause 4.5 and is not claiming any benefits. It is difficult to agree with this submission. He also submitted that these two provisions should be read in isolation of each other. However, on reading both these provisions, we are afraid we cannot put the same interpretation as put by learned Counsel on the provisions of Clauses 4.5 and 4.6. The provisions contained under this heading 'application for eligibility' beginning from Clauses 4.4 to 4.6 will have to be read as a whole. Intention of the scheme will have to be understood not in isolation of these provisions, but by uniting these three provisions together. As we have shown above, the very concept of the scheme is that there is a unified concept throughout the scheme. If such a concept is present throughout, it is not possible to construe the provisions as done by learned Counsel as being in existence. If this concept is taken into consideration, it is not possible to separate Clauses 4.4 and 4.5 from Clause 4.6. Therefore, the contention advanced by learned Counsel for the petitioner that he is claiming only eligibility under Clause 4.5 and not claiming any benefits under Clause 4.6 and what is denied to him is only the claim for eligibility under Clause 4.5 is not acceptable to us and , therefore, we reject the same.

48. Immediately then, we go to the interpretation of Clause 4.6. This is a clause which introduced a fiction. The clause says that 'no right or claim for any incentives under this scheme shall be deemed to have been conferred by the scheme merely by virtue of the fact that the unit has fulfilled on its part the conditions of the scheme'. These words are very clear and the intendment of creation of fiction is apparent by the use of the word 'deemed'. The word 'deemed', it has been well settled, is used in order to create a fiction. We may, in this connection, usefully refer to St. Aubyn and others v. Attorney-General, 1952 A.C. 15, and the observations of Lord Radcliffe appearing at page 52-53, which are as follows :---

'...The word 'deemed' is used a great deal in modern legislation. Sometime it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometime it is used to give a comprehensive description that includes what is obvious, what is uncertain, and what is, in the ordinary sense; impossible.'

In the case of (Commercial of Income-tax, Bombay Presidency v. Bombay Trust Corporation Ltd. , Head Note C, the Privy Council observed :---

'When a person is deemed to be something the only meaning possible is that whereas he is not in reality that something, the Act requires him to be treated as if he were.'

If this construction is put on the word 'deemed' used in this scheme, the intendment of the scheme seems to be that no right to incentive or no claim under this scheme shall be deemed to have been conferred. That means the only natural meaning which the fiction 'deemed' has introduced is only to show that it relates to the fact that no right is conferred or accrued. The situation, which is obvious from the meaning of word 'deemed', is that it cannot be laid down that any right is conferred on any unit if the unit fulfils on its part the conditions of the scheme. The words 'merely by virtue of the fact that the unit has fulfilled on its part' assume importance in this regard. The fact that the unit has fulfilled on its part the conditions of the scheme does not make it eligible or gives no right to it to claim eligibility and it appears to us that by introducing this fiction, if any such right would have been imagined to have been in existence and even it if existed, the words used in Clause 4.6 in the scheme clearly show that no right or claim will be conferred on any unit even if such a right came into existence. Even if a right is accrued, the import of the words seems to be that fulfilling of the conditions will not entitle the unit to claim any right whatsoever including the right to claim the incentive or any claim for incentive. If these words are taken to mean as has been held by us, then it is clear that the fiction as introduced by Clause 4.6 introduced only with a purpose that no such existence or accrual of a right to any person is contemplated and this is indicated by the clear words in the scheme in this case. In view of this clear position, though learned Counsel for the petitioner, contended that all the things, which are required to be under the scheme, have been fulfilled by him, we are unable to grant any assistance on the basis of the principle of promissory estoppel, which was pressed before us. We have also carefully considered all the authorities cited before us. We are not to burden this case for the simple reason that the principle of promissory estoppel invoked by the petitioner is not in dispute. Assuming that the principle of promissory estoppel is attracted and available to the petitioner, however, in view of the provisions of the scheme, especially those contained in Clause 4.6 it is difficult for us to grant any relief to the petitioner in this case as claimed by him.

49. In addition to this, the power to grant the eligibility certificate is given to respondent No. 2 as an implementing agency. This power is contained in Explanation II, Clause 2.3 under the heading 'Effective Steps' which runs as under :---

'Based on the documentary evidence led by the eligible unit in this regard the Implementing Agency, shall determine the date on which all the effective steps, both initial and the final, are completed. The decision of the implementing agency in this regard shall be final and binding.'

This provision also, as we have said earlier, will have to be read along with the other provisions as a whole. If this is so, then the words used are very clear to show that the implementing agency has to make its decision on the basis of the documentary evidence produced before it. Essentially, the basic intention behind this provision is that the implementing agency has been given the power in order that it has to go by the evidence and grant the certificate on the basis of certain documents produced by the petitioner or the concern party. The production of such evidence is obligatory under the provisions of the scheme and it is after examining that evidence that the implementing agency is to determine the date on which the effective steps have been completed. It is a pointer to the fact that the implementing agency has been vested with the power to decide the date on which the eligible unit completed all the effective steps. If the petitioner is right in contending that he has completed all the effective steps then it would follow that there will be no discretion given to the implementing agency to change the date. If that reasoning is accepted, then it would be impossible to contend that the implementing agency can change that date also. As the decision on the continuance of the effective steps is also dependent on the determination of the date by the implementing agency under this scheme, we find it difficult to accept the submission of the learned Counsel for the petitioner that the implementing agency has to grant the eligibility the moment the unit satisfies or fulfils all the requirements. The very fact that the determination of date is to be done by the implementing agency is indicative of the fact that the power vested in the implementing agency is given by the terms of the scheme, which it has to follow in all the cases. The power which is given by the terms of the scheme cannot be said to be exercised depending on the facts of each case, but it is unilateral power. If the implementing agency is to act differently in respect of different units, this will lead to a very anomalous situation, in that, there will be several units, which units will be able to satisfy the requirements at a particular date or different dates, which cannot be said to be the intention at all. The very fact that the implementing agency is to determine the date is applicable to all units and in view of this uniformity, which is apparent from Clause 2.3. Explanation II, we find it difficult to accept the submission that the implementing agency has no power to alter the date or to determine the date, which are given by the concerned (sic) while fulfilling their steps.

50. Then, there is another reason which also supports our view. In the definitions, in Clause 2.1(iii), although it is described as (ii), it is stated that the decision of the implementing agency, subject to such directions as Government may from time to time issue, in this regard will be final and binding on the eligible unit. We may once again repeated that the concept of offer or representation made in the scheme is a unified concept and once it is accepted that it is so, the provisions of the scheme cannot be read in isolation. The provisions, which we have quoted above, beginning from 2.1 to 4.6 etc., points at a theory that the implementing agency under the scheme, is a final authority for deciding the date of commencement of the effective steps and it is that agency alone, which is competent to grant the eligibility certificate. The decision of this agency under Clause 2.1(iii) is subject to the control of the Government. In view of this clear provision, it is not possible to say that the discretion and the power of the implementing agency is qualified or fettered by the unilateral actions of the units, which are required to fulfil certain conditions or certain formalities before they apply for the eligibility certificate.

51. In our opinion, the provisions of the scheme are not for encouraging different units having different capacities to go on with the production and to complete the initial and final effect steps and seek the benefits. The effective determination of the respective capacities of the several units is to be considered by the implementing agency while granting the eligibility certificate to various units. It is true that the scheme was introduced by the Government so that the units may come forward after fulfilling certain conditions. They may establish as industrial units and may start production. But in law, and even in equity, it cannot be said that by mere introduction of this scheme, certain representations, which constituted the basis of assurance, were made by the Government and those units which completed the effective steps under the scheme, for them a right to get eligibility certificate came into existence or accrued. In this connection, we may refer to the factual position about the basic requirement of the doctrine of promissory estoppel in this regard. Having examined the provisions of the scheme from various angles and points, we are of the opinion that this discretion and power conferred on the implementing agency under this scheme cannot be said to be qualified or cannot be said to be conditioned by the provisions of the scheme and, therefore, it is not possible to say that the moment a unit fulfils certain requirements, the eligibility certificate must be issued. This will lead to a very anomalous situation, in that, the scheme will be nothing but a slot machine, out of which, once a unit completes its final and effective steps, a certificate in the form of an eligibility certificate will come forth for that unit.

52. There is another reason, which is to be taken into consideration while interpreting Clause 4.6. The beginning of this cause is 'no right or claim for any incentive'. The words 'no right or claim for any incentive' are used. Word 'no' is an adjective here. It means not any. If we read this clause in this fashion, it will mean that not any right or claim shall be deemed to have been conferred. In view of this strong negative adjective 'no' used in this scheme, it is not possible to construe the clear words of this clause to mean to accrue any right in the petitioner, which can be enforced in a Court of law. It is true that we are interpreting this scheme. We may repeat that the scheme is an elastic word. It is a very flexible word. However, we have made it very clear that a scheme being a method and having a coherence in it has got some unity of purpose. The purpose of this scheme was to offer certain benefits by way of incentives to the concerned parties. Having regard to the object of conferring these incentives and certain sales tax exemptions being given to the concerned parties under the terms of the scheme, the negative clause worded in Clause 4.6 as a pointer to the true intention of the representation contained in the scheme.

53. We are not here discussing the exact merits of the representation, which is the true basis for invoking the doctrine of promissory estoppel, nor has it been urged before us. However, we may indicate that the scheme like the one which is under consideration contains a general representation as against representations concerning individuals. These general representations in this particular case have been to a certain extent acted upon. Here also, there is an intrinsic indication in the wording of Clause 4.6, which uses the words, if the unit has fulfilled on its part 'the conditions of the scheme'. Expression 'conditions of the scheme' can only mean certain steps, which are contemplated under the head 'effective steps', which means initial effective steps and final effective steps. If conditions of the scheme mean as initial and final effective steps under the heading given under the scheme, it is difficult to take any other view to say that a person or unit, who has completed initial or final steps can base his claim of right arising out of the representation made under this scheme.

54. Having come to the conclusion that the unit has fulfilled, assuming for awhile all its responsibilities, conditions under the scheme and has been ripe for claiming an eligibility certificate; the question still remains that is it possible to infer from completion of these steps that any crystalised right in the sense that it can clothe the unit with some power to compel other authority to act has arisen or not. It is inherent in the scheme that two three steps are required to be taken. They are mentioned as letter of intent, eligibility certificate and a certificate of entitlement. In this connection, it would be useful to refer to the rules, which have been filed by respondent No. 2 along with its counter. The rules mention the procedure for grant of this eligibility certificate and entitlement certificate. At Rule 2.5 of the rules, we find that prior to the grant of an eligibility certificate under the 1979 scheme, the eligible unit has to execute an agreement to the satisfaction of the implementing agency which may be deemed necessary covering the covenants, conditions, stipulations, and in conformity with the requirements of the 1979 scheme. From the above provisions, it appears that the implementing agency is yet to function till it grants eligibility certificate after scrutinising various documents and after satisfying itself that the unit has competed not only the initial and final steps under the heading 'effective steps' but has also performed all the formalities and conditions, such as production of documents as provided by Clause 2.5 of the rules. In view of these provisions of the scheme, it is not possible for us to accept the contention advanced by learned Counsel for the petitioner that a legal right arises in favour of the petitioner the moment he completes the initial and final steps under the scheme.

55. As we have reached the conclusion that no right arises in favour of the petitioner, we have not thought it necessary to examine the contents of the representation, which are the basis for invoking the doctrine of promissory estoppel. The representation, in order that it may constitute an assurance under the doctrine of promissory estoppel, must be accompanied by some specific assurance to a specific individual. All these facts in this case, in our opinion, are not pleaded with sufficient accuracy and details to give a picture as to in what circumstances, on what representations and assurance certain acts have been done. It is true that this doctrine being a new doctrine used by the Court to give justice to the parties has yet to recognise the exigencies of the times and special features of a particular case. In the absence of specific pleadings, it is not possible for us to infer that in this particular case, a representation was taken to be the basis of further conduct, which the petitioner desires to rely upon in this case. However, we are not attaching important to this point for the simple reason that on facts while interpreting Clauses 4.6 of the scheme, we have reached the conclusion that no right is accrued to the petitioner in view of the provisions contained in Clause 4.6

56. In fairness we must now refer to certain arguments, which were also advanced by learned Counsel for the petitioner, challenging the action of the Government as being unconstitutional. It was contended by learned Counsel for the petitioner that the action of the Government was contrary and in violation of Article 19(1)(g) of the Constitution. We are mentioning this argument only to reject it, because there is no violation of Article 19(1)(g) at all. Article 19(1)(g) of the Constitution does not create any right in any one to obtain any concessions or claim any benefits under a particular scheme. The right that can be derived from the provisions of Article 19(1)(g) is of carrying on any particular trade or business. Here, in this case, the provisions of the scheme are not framed under any law which has put restrictions on the right of the petitioner to practise any trade or business and which is beyond the scope of the constitutional provision. Therefore, it is not possible to say that any challenge to the scheme under Article 19(1)(g) can be given. It was contented by learned Counsel that in view of the letter dated 25th October, 1982, which puts a restriction and puts a condition to bring a certificate on the petitioner unit, it should be held that the said letter had denied the petitioner a claim to get the eligibility certificate and therefore, there is violation of Article 19(1)(g). We may immediately refer to (C.K. Chutan v. The State of Kerala and others, : AIR1959SC490 . The case deals with a permission to be given to a contractor. The contractor, who was milk supplier to the Government, had been supplying milk for twenty years and after twenty years, he claimed a renewal of that contract. The Supreme Court, while considering the case has, while disposing of both the arguments under Articles 19 and 14 which were raised before it said :---

'....The breach of the contract, if any, may entitle the person aggrieved to sue for damages or in appropriate cases, even specific performance, but he cannot complain that there has been a deprivation of the right to practise any profession or to carry on any occupation, trade or business, such as in contemplated by Article 19(1)(g)....'

It was also said in that case that if more than two persons or units apply for certificate such as been in this case and certain units are granted the certificate, there cannot be said to be any violation of Article 14. Following the ratio of this judgment, we hold that the challenge given to the constitutionality of the action of the Government saying that it is in violation of Article 19(1)(g) is not sustainable. We are conscious that this case deals with the rights of a person based on contract. However, in a case where a person has come to the Court on the ground that the promise has been resiled, we do not think that the case is quite contrary to the contractual obligations. If we read promise in place of contract and see that it has been to the extent present in this case we derive the support from the above-referred judgment of the Supreme Court to hold that Article 19(1)(g) is not violated in this case and, therefore, the contention of the learned Counsel for the petitioner that there is violation of Articles 19(1)(g) is not correct and it is rejected.

57. It was further contended by learned Counsel for the petitioner that Article 14 of the Constitution is also violated. This plea of violation of Article 14 is usually linked up where there is also a challenge under Article 19. We may immediately point out that Article 14 runs as follows :

'14. Equality before law---

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.'

It is undisputed in this case that the scheme is a non-statutory scheme. It is also undisputed that the Government is not acting under any statute nor any provisions of the statute are incorporated in the scheme so as to say that the authorities of the Government are acting under it. Under such circumstances, it is not possible to say that the Government is acting under certain law, which deprives a person an equality before law. It is also noticeable that in order to raise this plea, a factual statement was made that certain units were granted the eligibility certificate despite the letter dated 25th October, 1982 issued by the Government restraining the authorities to grant the certificate. Even if these certificate are granted despite the letter dated 25th October, 1982, we do not think that any sufficient material has been placed before the Court to show that any exact extent of the discrimination can be spelled out at this juncture. The fact that certain units have been granted the eligibility certificate is of no significance when it cannot be said that the Government is acting under any law. Article 14 also protects the citizens from discrimination. In a case like this where certain units are granted entitlement certificate relying on the general representations contained in a scheme, it would be impossible to contend that because certain other units are denied those certificates, a discrimination within the meaning of Article 14 arises. The facts, which are required to be proved for basing a case under Article 14 are necessary to be first set out in the petition. Except the fact that certain units have been granted the certificate and in the same region they have been granted the eligibility certificate, no other facts are brought out to make out a case of arbitrary action on the part of the Government so as to attract it under Article 14. Article 14 commands the State not to act discriminatory and it is not an Article which confers any right on citizens like Article 19. Having regard to these facts, it cannot be said that the action of the Government can be challenged on the ground that it is violative of Article 14. Proceedings of a writ petition are summary proceedings and unless the factual basis is made out with sufficient details to find out the arbitrary discrimination made in various situations, it is not possible to accept the claim of any petitioner challenging the action on the ground of violation of Article 14. Therefore, the challenge given under Article 14 in this case is not sustainable and is rejected.

58. At this state, we propose to record our conclusions as follows :---

(i) That the doctrine of promissory estoppel is available as a cause of action to any petitioner in view of the judgments of the Supreme Court and a petitioner can claim relief on the basis of the doctrine of promissory estoppel even in writ proceeding also;

(ii) As in this case, we were interpreting a scheme which was before us, and on the factual interpretation of the various clauses of the scheme and especially while interpreting Clause 4.6, we have reached to the conclusion that the clause does not give rise to any right, we hold that the petitioner has not proved that he has got any accrued right to claim any benefit under the doctrine of promissory estoppel and it is on this factual ground that the petition fails.

It is well settled that if a petitioner is unable to find his claim on a legal right, there is no necessity to go further into other details and other challenges. However, in fairness, we have indicated our views in regard to the arguments which were advanced before us. And the authority for this purpose, if at all required, is The State of Orissa v. Madan Gopal Rungta,, : [1952]1SCR28 . Where the Supreme Court has stated :---

'The issuing of writs or directions by the High Court is founded only on its decision that a right of the aggrieved party under Part III of the Constitution (Fundamental Rights) has been infringed. It can also issue writs or give similar directions for any other purpose. The concluding words of Article 226 have to be read in the context of what proceeds the same. Therefore, the existence of right is the foundation of the exercise of jurisdiction of the Court under this Article.'

As we have held that there is no existence of a right in the petitioner on the factual interpretation of the scheme, we do not think that the petitioner is entitled to any reliefs which he has claimed in this petition.

59. We may now dispose of the prayers which the petitioner has prayed for. As far as the petitioner's first prayer to quash the letter dated 25th October, 1982 is concerned, this prayer cannot be granted as it has become infructuous in view of the letter written by respondent No. 3 that he is not able to process the application pending before him and in view of the admission of the Government that the letter stands withdrawn. So, there is no necessity to grant relief in regard to the declaration that the letter dated 25th October, 1982 contains directions, which are illegal and void. As far as the second prayer relating to issue of writ of mandamus is concerned, which asks for respondent No. 2 to grant the eligibility certificate as the petitioner has failed to prove any existing right, a further duty to perform an obligation flowing from such right does not arise and, therefore, writ mandamus also prayed for by the petitioner cannot be issued.

60. In view of our conclusions, we hold that the petitioner has failed to make out a case and prove his right to claim any relief in this petition. Therefore, the petition fails and stand dismissed. Rule is accordingly discharged. However, in the peculiar circumstances of this case, there will be no order as to the costs.


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