High Court of Punjab and HaryanaCWP/5819/2016allowed

M/S Sekhri Milk Products v. Union Of India And Others

2024-07-22Mr. Justice Vinod S. Bhardwaj29 pages

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"18.

In the light of the above and that as per the guidelines of the Scheme for Cold Chain Infrastructure, the committee observed that the case is eligible for grant. As per the scheme guidelines, the eligible grant amount in 90% of the total eligible project cost with a ceiling for Rs. 500.00 Lakh. In the present case the eligible project cost is Rs. 814.77 lakhs (Eligible cost of P & M + Eligible cost for Technical Civil works = Rs. 751.77 Lakh & Rs. 63.00 Lakh). However, TSC has recommended the case for conditional approval subjected to submission of Item wise and cost wise details of Technical civil works duly certified by Chartered Engineer (Civil) PEDA certificate to ensure the utility of installed solar plant and quantum of power generated with proposed solar plant to run the cold chain. PSPCL certification to ensure that the applicant has a tie up arrangement with the State Electricity Department to meet the consistent requirement of power load, in case of solar power fell shot on the account of low sunshine and the power

generated is less than the required."

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"To Mr. Abhinav Sekhri C2354. Ranjit Avenue, Distt. Amritsar No. 9/93/2014 Mission Policy/ 709 Dated: 10.6.15 Sub:

Dear Applicant, With reference to your letter dated 08.06.2015. It is to inform you that the Govt. of India

has delinked the Centrally Sponsored Scheme of National Mission on Food Processing (NMFP) w.e.f. 01.04.2015. Therefore, your proposal for grantinaid cannot be processed further."

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, .1 %%$$!2 Dated: 27.03.2017 '33'4 With reference to the Expression of Interest (EOI) dated 31.08.2016, this Ministry has approved 101 eligible integrated cold chain proposals in order of merit for sanction out of 308 proposals received and appraised. List of proposals approved for sanction is at Annexure. The sanction of aforementioned 101 eligible cold chain proposals is subject to provisions of scheme guidelines of Integrated Cold Chain and Value Addition Infrastructure issued on 29.08.2016 and the terms and conditions as laid down in the letter(s) to be issued by the Ministry in respect of each proposal.

Status of remaining proposals will follow."

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"Learned Senior counsel for the petitioner submits that the ground for rejecting the proposal for grantinaid was delinking from centrally sponsored scheme of national mission of food processing w.e.f. 01.04.2015. By referring to Annexure P13, learned Senior counsel further submits that the Ministry of Food Processing Industries is still sanctioning grantinaid for eligible cold chain proposal subject to provision of scheme/ guidelines of integrated cold chain and value addition. The case of the petitioner was duly recommended by Technical Scrutiny Committee. Thereafter it was to be approved by the State Level Empowered Committee. The State Level Empowered Committee did not meet on the date fixed and that is how the case of the petitioner could not be approved.

Learned Senior counsel for the petitioner further submits that the grantinaid is still being offered by the Ministry of Food Processing and Industries even after alleged delinking and as of now an amount of Rs.1.72 crores is still lying unutilized with respondents No.2 and 3. Learned counsel for respondent No.1 seeks time to respond to the communication (Annexure P13) dated 27.03.2017.

Learned counsel for respondents No.2 and 3 also seeks time to have instructions in the context of receiving grantinaid from respondent No.1 and utilization

thereof. Respondents No.2 and 3 shall also respond to the amount if any, still lying unutilized with them. Adjourned to 13.10.2022."

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"39. In the present cases, the offer of subsidy is a manner of providing incentives for such investment and an entrepreneur that assumes a business risk in investment, is entitled to believe that the scheme is not an empty promise but rooted on a sound government policy and is squarely covered under the regime of promissory estoppel of the industrial units. The State could not

legally be permitted to completely defeat the rights of petitionerIndustries by constant re appraisal of the scheme retrospectively, that too by issuing administrative instructions of any kind and by its officers by passing the impugned orders. Even in case of those industries, which after several years of operation has perforce to close its business by the only reason that assured subsidy did not reach him or any other valid ground beyond their control. A businessman, who makes investment and obtains loans from the market or financial institution for establishment of the industry, is at least entitled to assume that a portion of debt could be redressed from the amount of subsidy/incentive and benefits as promised by the State emanating from the Industrial Policies and relevant rules framed thereunder.

40. Now adverting to the next celebrated contention of the State counsel that since the respondents have issued administrative instructions/guidelines, altering the original Industrial Policies (Annexure P1) and the relevant rules framed thereunder, so, the petitioner Industries, as such, are not entitled to the subsidies/incentives contrary to the guidelines, is not only devoid of merit but misplaced as well. Once the Governor has issued the notifications publishing the Industrial Policies (Annexure P1) in Government Gazette and State Govt. notified the relevant rules (Annexure P2) to implement the indicated Policies, then, to my mind, the administrative/executive instructions/guidelines cannot legally be issued, unilaterally to alter the eligibility criteria and imposing such restrictions on the payment of amount of incentives detrimental to already accrued valuable rights of the

petitionerIndustries, that too, without issuing any notice and providing adequate opportunity of hearing to them. Such substantive rights of the petitioner Industries cannot be taken away by issuing the executive instructions/guidelines, which have no sanctity of law and did not contain any legal force. It cannot possibly be denied that only the State Government (not its officers) has the power to amend the rules in a legal manner that too prospectively and even State cannot take away any such rights already accrued to a party by way of subsequent amendment. In the present cases, as the impugned guidelines are based on recommendations of the officers' committees, therefore, the administrative instructions/guidelines will not in any way override the effect and operation of Industrial Policies and relevant rules framed thereunder in this regard by the State.

41. Moreover, the respondents cannot be permitted to keep on changing the eligibility criteria for the benefit emitting from the scheme, which was primarily intended to promote the industrial growth in the specified category of area and industry in general and production and employment in border area in particular. As indicated earlier, the entitlement of petitionerIndustries to claim the incentives and subsidies under the scheme has not been denied and was sanctioned, but the respondents did not release the amount for one or the other untenable grounds in the garb of impugned orders, which are entirely beyond the scope and jurisdiction of the original Industrial Policies and relevant rules framed thereunder. In the same manner, a welfare State cannot possibly be heard to say that the amount was not released on account of paucity of funds with it.

42. In this manner, to my mind, any subsequent administrative instructions/guidelines issued by the State or any orders passed by its officers, impugned in the present writ petitions, which have no sanctity of law and legal force, are illegal, contrary to the Industrial Policies and indicated relevant rules, without jurisdiction and in operative on the rights of the petitionerIndustries. The State cannot deny the release of the amount of incentive/subsidies to them (petitioner Industries) in this relevant connection."

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: "9. It was next contended that the dispute between the parties is in the realm of contract and even if there was a concluded contract between the parties about grant and acceptance of loan, the failure of the Corporation to carry out its part of the obligation may amount to breach of contract for which a remedy lies elsewhere but a writ of mandamus cannot be issued compelling the Corporation to specifically perform the contract. It is too late in the day to contend that the instrumentality of the State which would be 'other authority' under Article 12 of the Constitution can commit breach of a solemn undertaking on which other side has acted and then contend that the party suffering by the breach of contract may sue for damages but cannot compel specific performance of the contract. It was not disputed and in fairness to Mr. Bhatt, it must be said that he did not dispute that the Corporation which is set up under Section 3 of the State Financial Corporations Act, 1951 is an instrumentality of the State and would be 'other

authority' under Article 12 of the Constitution. By its letter of offer dated July 24, 1978 and the subsequent agreement dated Feb. 1, 1979 the appellant entered into a solemn agreement in performance of its statutory duty to advance the loan of Rs. 30 lakhs to the respondent. Acting on the solemn undertaking, the respondent proceeded to undertake and execute the project of setting up a 4star Hotel at Baroda. The agreement to advance the loan was entered into in performance of the statutory duty cast on the Corporation by the statute under which it was created and set up. On its solemn promise evidenced by the aforementioned two documents, the respondent incurred expences, suffered liabilities to set up a hotel. Presumably, if the loan was not forthcoming, the respondent may not have undertaken such a huge project.

Acting on the promise of the appellant evidenced by documents, the respondent proceeded to suffer further liabilities to implement and execute the project. In the back drop of this incontrovertible fact situation, the principle of promissory estoppel would come into play. In Motilal Padampat Sugar Mills Co. (P) Ltd. v. State of U.P./(%2&2)#>!

>>#/ this Court observed as under:

"The true principle of promissory estoppel, therefore seems to be that where one party has by his words of conduct made to the other a clear and unequivocal promise which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties,

; and this would be so irrespective whether there is any preexisting relationship between the parties or not."

10. Thus the principle of promissory estoppel would certainly estop the Corporation from backing out of its obligation arising from a solemn promise made by it to the respondent.

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>=2. which slightly differs from the view taken by this Court in the aforementioned decision at any rate would not help the appellant because it only lays down that the principle of promissory estoppel cannot be invoked for preventing the Government from discharging its functions under the law. Even then, it was held that when the officer authorised under a scheme 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 regulate the officer to act according to the scheme and the agreement or the representation.

The officer can not arbitrarily on his mere whim ignore his promise on some undefined and undisclosed grounds of necessity or changed the conditions to the prejudice of a person which had acted upon such representation and put himself in a disadvantageous position. On this point, both the decisions concur and the ratio would govern the decision in this appeal. The respondent acting upon the solemn promise made by the appellant incurred huge expenditure and if the appellant is not held to its promise, the respondent would be put in a very disadvantageous position and therefore also the principle of promissory estoppel can be invoked in this case.

12. Viewing the matter from a slightly different angle altogether it would appear that the appellant is acting in a very unreasonable manner. It is not in dispute that the appellant is an instrumentality of the Government and would be other authority' under Article 12 of the Constitution. If it be so, as held by this Court in R.D. Shetty v. The International Airports Authority of India/ (%2&2) : %$%!

%$!%/ the rule inhibiting arbitrary action by the Government would equally apply where such corporation dealing with the public whether by way of giving jobs or entering into contracts or otherwise and it cannot act arbitrarily and its action must be in conformity with some principle which meets the test of reason and relevance.

13. Now if appellant entered into a solemn contract in discharge and performance of its statutory duty and the respondent acted upon it, the statutory corporation can not be allowed to act arbitrarily so as to cause harm and injury, flowing from its unreasonable conduct, to the respondent. In such a situation, the Court is not powerless from holding the appellant to its promise and it can be enforced by a writ of mandamus directing it to perform its statutory duty. A petition under Article 226 of the Constitution would certainly lie to direct performance of statutory duty by 'other authority' as envisaged by Article 12."

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14. The short question which, therefore, arises for consideration is whether the rejection of the case of the Petitioner by the Respondent, as upheld by the IMAC, requires interference by this Court under Article 226 of the Constitution of India or not. The Petitioner has invoked the principles of legitimate expectation and promissory estoppels.

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17. The law of legitimate expectation has been crystallized by the Apex Court in several judgments. It has been held that for a legitimate expectation to arise, the decision of the authority must affect such person by (a) altering rights or obligations of that person which are enforceable by or against him in private law, or (b) depriving him of some benefit or advantage which he has conferred upon him in the past by the decisionmaker to enjoy and which he can legitimately expect to be permitted to continue to do until some rational ground for withdrawing the benefit has been communicated to him and he has been given an opportunity to comment thereon, or he has received assurance from the decisionmaker that the benefit will not be withdrawn without giving him an opportunity of advancing reasons for contending that they should not be withdrawn. The Apex

- Court in Sethi Auto Service Station v. DDA, (2009) 1 SCC 180, has explained the concept of legitimate expectation as under:

"24. The protection of legitimate expectations, as pointed out in De Smith's Judicial Review (6th Edn.), (Para 12 001), is at the root of the constitutional principle of the rule of law, which requires regularity, predictability and certainty in the Government's dealings with the public. The doctrine of legitimate expectation and its impact in the administrative law has been considered by this Court in a catena of decisions but for the sake of brevity we do not propose to refer to all these cases. Nevertheless, in order to appreciate the concept, we shall refer to a few decisions.

25. At this juncture, we deem it necessary to refer to a decision by the House of Lords in Council of Civil Service Unions v. Minister for Civil Service [1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL)] , a locus classicus on the subject, wherein for the first time an attempt was made to give a comprehensive definition to the principle of legitimate expectation.

Enunciating the basic principles relating to legitimate expectation, Lord Diplock observed that for a legitimate expectation to arise, the decision of the administrative authority must affect such person either (a) by altering rights or obligations of that person which are enforceable by or against him in private law, or (b) by depriving him of some benefit or advantage which either: (i) he has in the past been permitted by the decisionmaker to enjoy and which he can legitimately expect to be permitted to continue to do until some rational ground for withdrawing it has been communicated to him and he has been given an opportunity to comment thereon, or (ii) he has received assurance from the decisionmaker that they will not be withdrawn without first giving him an opportunity of advancing reasons for contending that they should be withdrawn.

26. In Attorney General of Hong Kong v. Ng Yuen Shiu [(1983) 2 AC 629 : (1983) 2 WLR 735 : (1983) 2 All ER 346 (PC)], a leading case on the subject, Lord Fraser said: (All ER p. 351gh) "... when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as

implementation does not interfere with its statutory duty."

27. Explaining the nature and scope of the doctrine of legitimate expectation, in Food Corporation of India v. Kamdhenu Cattle Feed Industries [(1993) 1 SCC 71] , a threeJudge Bench of this Court had observed thus:(SCC p. 76, para 8) "8. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decisionmaking process.

Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent."

28. The concept of legitimate expectation again came up for consideration in Union of India v. Hindustan Development Corpn. [(1993) 3 SCC 499] Referring to a large number of foreign and Indian decisions, including in Council of Civil Service Unions [1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL)] and Kamdhenu Cattle Feed Industries [(1993) 1 SCC 71] and elaborately explaining the concept of legitimate expectation, it was observed as under: (Hindustan Development Corpn. case [(1993) 3 SCC 499] , SCC p. 549, para 35) "35. ... If a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power or violation of principles of natural justice, the same can be questioned on the wellknown grounds

attracting Article 14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. It can be one of the grounds to consider but the court must lift the veil and see whether the decision is violative of these principles warranting interference. It depends very much on the facts and the recognised general principles of administrative law applicable to such facts and the concept of legitimate expectation which is the latest recruit to a long list of concepts fashioned by the courts for the review of administrative action, must be restricted to the general legal limitations applicable and binding the manner of the future exercise of administrative power in a particular case. It follows that the concept of legitimate expectation is „not the key which unlocks the treasury of natural justice and it ought not to unlock the gates which shuts the court out of ‟ review on the merits , particularly when the element of speculation and uncertainty is inherent in that very concept."

Taking note of the observations of the Australian High Court in Attorney General for New South Wales v. Quinn [(1990) 64 Aust LJR 327 : (1990) 170 CLR 1] that "to strike down the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be to set the courts adrift on a featureless sea of pragmatism", speaking for the Bench, K. Jayachandra Reddy, J. said that there are stronger reasons as to why the legitimate expectation should not be substantively protected than the reasons as to why it should be protected. The caution sounded in the said Australian case that the courts should restrain themselves and restrict such claims duly to the legal limitations was also endorsed.

29. Then again in National Buildings Construction Corpn. v. S. Raghunathan [(1998) 7 SCC 66 : 1998 SCC (L&S) 1770] , a threeJudge Bench of this Court observed as under: (SCC p. 75, para 18) ‟ "18. The doctrine of „legitimate expectation has its genesis in the field of administrative law. The Government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without any iota of abuse of discretion. The policy statements cannot be disregarded unfairly or applied selectively. Unfairness

in the form of unreasonableness is akin to violation of natural justice. It was in this context that the doctrine of ‟ "legitimate expectation was evolved which has today become a source of substantive as well as procedural ‟ rights. But claims based on "legitimate expectation have been held to require reliance on representations and resulting detriment to the claimant in the same way as claims based on promissory estoppel."

30. This Court in Punjab Communications Ltd. v. Union of India [(1999) 4 SCC 727], referring to a large number of authorities on the question, observed that a change in policy can defeat a substantive legitimate expectation if it can be justified on "Wednesbury" reasonableness. The decisionmaker has the choice in the balancing of the pros and cons relevant to the change in policy. Therefore, the choice of the policy is for the decision maker and not for the court. The legitimate substantive expectation merely permits the court to find out if the change in policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made. (Also see Bannari Amman Sugars Ltd. v. CTO [(2005) 1 SCC 625] .)

31. Very recently in Jitendra Kumar v. State of Haryana [(2008) 2 SCC 161 : (2008) 1 SCC (L&S) 428] it has been reiterated that a legitimate expectation is not the same thing as an anticipation. It is distinct and different from a desire and hope. It is based on a right. It is grounded in the rule of law as requiring regularity, predictability and certainty in the Government's dealings with the public and the doctrine of legitimate expectation operates both in procedural and substantive matters.

32. An examination of the aforenoted few decisions shows that the golden thread running through all these decisions is that a case for applicability of the doctrine of legitimate expectation, now accepted in the subjective sense as part of our legal jurisprudence, arises when an administrative body by reason of a representation or by past practice or conduct aroused an expectation which it would be within its powers to fulfil unless some overriding public interest comes in the way. However, a person who bases his claim on the doctrine of legitimate expectation, in the first instance, has to satisfy that he has relied on the said representation and the denial of that expectation has worked to his detriment. The Court could interfere only if the decision taken by the authority

was found to be arbitrary, unreasonable or in gross abuse of power or in violation of principles of natural justice and not taken in public interest. But a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles.

33. It is well settled that the concept of legitimate expectation has no role to play where the State action is as a public policy or in the public interest unless the action taken amounts to an abuse of power. The court must not usurp the discretion of the public authority which is empowered to take the decisions under law and the court is expected to apply an objective standard which leaves to the deciding authority the full range of choice which the legislature is presumed to have intended. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and objectively, the court will not interfere on the ground of procedural fairness to a person whose interest based on legitimate expectation might be affected. Therefore, a legitimate expectation can at the most be one of the grounds which may give rise to judicial review but the granting of relief is very much limited. (Vide Hindustan Development Corpn. [(1993) 3 SCC 499] )"

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19. The fact that the Petitioner has already spent money would not create any right on the Petitioner to claim that amount from the State. It is also well settled that High Courts while exercising its jurisdiction under Article 226 of the Constitution of India do not interfere with the decisions of various authorities but only adjudicate on the decision making process. The Petitioner has been given an opportunity to present its case before the Technical Committee and the IMAC. The Petitioner has put forward his case and a decision has been passed. It cannot be said that the decision arrived at by the Government is so perverse that it requires interference by this Court."

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4,9 B Following sectors may be covered under the scheme: (a) Dairy All milk and milk products, etc.

(b) MeatAll meat and meat products etc.

(c) Aquaculture and marine products like Prawns, Seafood, Fish, and their processed products etc. (d) Any other non horticultural food products requiring integrated cold chain.

4,93,

B Integrated cold chain and preservation infrastructure may be set up by individuals or groups of entrepreneurs interested in supply chain management, organizations such as Govt./PSUs/Joint Ventures/ NGOs/ Cooperatives/ SHG's/Private Sector Companies and Corporations etc.

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% The applicant should have sound financial back ground. The net worth of the applicant(s) should be more than 1.5 times of the grant applied for.

# The project proposals are required to be duly appraised by the bank/financial institution and avail term loan. The term loan will not be less than 25% of the project cost.

: Project Appraisal Report from Bank/Financial Institution must contain all the project

components for which grant is sought.

Date of commercial production should not be prior to the date of submission of application. Any two of the project components, from (a), (b) or (c) mentioned in para 2 above will have to be set up by the applicant(s). Irradiation facility can be set up as stand alone for the purpose of availing grant.

> No second proposal from the same applicant/company." "/

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