M/S Riflex Industries Pvt. Ltd. And Another v. The Lieutenant Governor And Others
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] *** PRESENT: HON'BLE JUSTICE ARINDAM MUKHERJEE AND HON'BLE JUSTICE KAUSIK CHANDA MAT No. 8 of 2022 M/s Riflex Industries Pvt. Ltd. and another ...
Appellants
Versus
The Lieutenant Governor and others ...
Respondents For the appellants : Ms. Anjili Nag For the respondents : Mr. Shatadru Chakraborty Mr. Ramendu Agarwal Heard on : September 23rd, 2022 Judgment on : September 28th, 2022 Arindam Mukherjee, J.:- 1.
The appellants have challenged a portion of the order dated 18th August, 2022 passed in WPA 261 of 2021 by which the order impugned therein was set aside with a direction to the authority to consider the petitioners' application afresh, however, with a rider that the said direction was subject to the fact the concerned scheme was still in subsistence. The appellants say that the rider in the order dated 18th August,
2022 is causing the difficulty as the scheme of subsidy was available to the units that commenced commercial production on or after 1st April, 2014 and uptil 31st March, 2020. On a plain reading, the scheme was not available beyond 31st March, 2020, but the claims for subsidy could be lodged upto one year from the date of commencement of the commercial production. On such interpretation, reconsideration of the appellants' case will inevitably lead to a rejection as the scheme was not available in respect of commercial production that had commenced after 31st March, 2020.
2.
The operative portion of the said order dated 18th August, 2022 is set out hereunder for convenience: "Subject to the existence of the Scheme till date, this court is of the view that the grounds given by the petitioners for commencing of commercial production beyond the date specified in the Scheme is wholly acceptable since declaration of a lockdown by reason of the pandemic is known to all.
The impugned order dated 6th August, 2021 ignores the relevant facts. The order simply rejects the application for the petitioners on the ground that the Scheme expired on 31st March, 2020 and the unit came to existence after expiry of the scheme. This Court is hence of the view that the impugned order cannot be sustained and the petitioners' case must be revisited by the respondent authorities.
WPA/261/2021 is accordingly disposed of by directing the respondent authorities to consider the application of the petitioners for the subsidy under the Scheme within a period of four weeks from date and to dispose of the same by way of a reasoned order which shall be communicated to the petitioners within an outer limit of six weeks from today. The direction is subject to the fact that the concerned Scheme is still in existence. The impugned order dated 6th August, 2021 is set aside."
3.
Before going into the grounds of challenge to the limited portion of order dated 18th August, 2022, the brief facts are required to be enumerated.
4.
On 25th October, 2017, the Andaman and Nicobar Administration through the Directorate of Industries notified about a scheme/programme for subsidy which was named as Andaman and Nicobar Islands Infrastructure Subsidy for Micro, Small & Medium Enterprises, 2017 (hereinafter referred to as "the said scheme"). The relevant clauses in the said scheme relevant for the purpose of adjudication of this matter are set out hereunder:- "2. Commencement & Duration:
The Scheme/Programme shall come in the effect from the date of publication of this notification and shall remain in operation until 31st March, 2020. The Scheme/Programme shall be available to all such Micro, Small & Medium Enterprises which have been commissioned and commenced their commercial production on or after 1st April, 2017 until 31st March, 2020.
5. Terms & Condition:
i. ... ... ...
ii. ... ... ...
iii. ... ... ...
iv. ... ... ...
v. No claim of subsidy more than one year old from the date of commencement of commercial production/ substantial expansion shall be entertained.
13. Power of Relaxation:
Power of Relaxation of any clause under the programme shall lie with the Administrator, A & N Administration."
5.
It is the case of the appellants that they commenced the commercial production on 4th June, 2020, and lodged the claim for subsidy on 16th October, 2020. The appellants had cited the reasons of national lockdown for being unable to commence commercial production by 31st March, 2020, though they were ready to do so. However, immediately after the national lockdown was lifted, the appellants commenced the commercial production on and from 4th June, 2020. The appellants, therefore, have sought for the subsidy citing these grounds by filing the application on 16th October, 2020. The said application, however, was rejected. Challenging the said rejection the appellants had filed the writ petition. 6.
The learned Single Judge, after considering the averments made in the writ petition, was convinced that due to the lockdown by reasons of pandemic, the appellants could not commence its commercial production by 31st March, 2020. After accepting the grounds cited by the appellants for the delay in commencing commercial production, the learned Single Judge had held that the order of rejection dated 6th August, 2021 ignored to take into consideration this relevant facts and simply rejected the appellants' application on the ground that the scheme expired on 31st March, 2020 and the
unit having come into existence after the expiry of 31st March, 2020 was not entitled to the benefits under the said scheme. The learned Judge then set aside the order of rejection and directed the respondent authorities to consider the appellants application for subsidy afresh within a period of four weeks from the date of the order by a reasoned order provided the said scheme was in subsistence and to further communicate the same within a time frame.
7.
The appellants say that the respondent authorities have already expressed their view that the scheme was not in existence after 31st March, 2020 and as such the rider given by the learned Single Judge for the application for subsidy of the appellants to be considered afresh is otiose, because citing the same reason the application will again be rejected as the appellants admittedly commenced commercial production after 31st March, 2020. The appellants say that the date of lodging the claim for subsidy under the scheme was one year from the commencement of commercial production. An MSME was free to commence production even on 31st March, 2020. According to the interpretation given by the respondents to the provisions of the said scheme, in the event, an MSME fails to make an application for subsidy on or
before 31st March, 2020, the subsidy would not be available. This interpretation is wholly unfounded as clause 5 (v) clearly provides that the claim can be lodged within one year from the date of commencement of commercial production. So an MSME can make an application claiming subsidy within one year from 31st March, 2020 if it had commenced commercial production on 31st March, 2020.
8.
In the instant case the appellants claim that they commenced commercial production from 4th June 2020 i.e. beyond 31st March, 2020. The appellants have cited the reason that prior to the expiry of the last date fixed for commercial production the national lockdown was declared. In Andaman and Nicobar Islands from 19th March 2020 flights and other modes of transportation remained suspended, as a consequence whereof it was not possible for the appellant to commence the production by 31st March, 2020 though they were ready in all respect and could have commenced commercial production had things been normal. The appellants suggest that they were ready for commercial production which would be borne out from the fact that immediately after the withdrawal of the lockdown they started commercial production from 4th June, 2020. The appellants
therefore had asked for giving the benefit by extending the last date of commencement of commercial production till 4th June, 2020.
9.
The learned Single Judge had accepted the cause shown by the appellants for the delay in commencement of commercial production and had also held that the respondent authorities while considering the appellants application did not taken into account these relevant facts. However, by incorporating the word 'subject to the scheme being in subsistence' in the order an anomalous situation, according to the appellants have arisen.
10.
On a conjoint reading of the various clauses contained in the said scheme including the clauses set out herein above it is clear that a Micro, Small & Medium Enterprises (in short MSME) engaged in Tourism, Food Processing, Handicrafts, Manufacturing and Information Technology shall be eligible for the subsidy under the said scheme upon fulfilling certain criteria as laid down thereunder. The appellant no. 1 is a food processing unit and as such comes within the ambit of the said scheme to claim subsidy on fulfilling the criteria laid down in the said scheme. The scheme declares subsidy to an
MSME which has been commissioned and had commenced their commercial production on or after 1st April, 2017 and until 31st March, 2020. The scheme also provides that no claim for subsidy more than one year old from the date of commencement of commercial production/substantial expansion shall be entertained. In view of such stipulation an MSME which has been commissioned and has commenced commercial production on or after 1st April, 2017 and up to 31st March, 2020 is entitled to claim the subsidy. The claim for subsidy, however, shall not be entertained after one year from the date of commencement of commercial production/ substantial expansion.
Thus, an MSME, which has commenced commercial production on 31st March 2020 being the last date till which commercial production could be commenced, was entitled to lodge its claim for subsidy within one year from 31st March, 2020 i.e. 30 March, 2021.The scheme was in subsistence for such limited purpose till 30th March, 2021.
11.
As stated herein above, according to us, the last date of commencing commercial production under the said scheme was 31st March, 2020, but the claims could be lodged within one year from the date of commencement of commercial
production. The scheme, only for the purpose of claiming subsidy, remained in subsistence for one year period from 31st March 2020 i.e. 30th March, 2021. The lodgement of claim by the appellant is within one year from 4th June, 2020. The relevant question is whether the appellants are entitled to the subsidy after having commenced commercial production on 4th June, 2020 instead of 31st March 2020. We find that clause 13 of the scheme gives the Administrator being respondent no. 1 the authority to relax any clause under the said scheme. It is true that one day national lockdown was observed on 22nd March, 2020 and full lockdown all over India started from 24th March, 2020 (post-midnight). So at least seven days prior to expiry of the last date for commencing commercial production, the lockdown intervened, which is to public knowledge. It is, therefore, necessary for the respondent authorities to consider appellants application in this perspective.
12.
The extension of benefit under the scheme is a policy matter and as the Court cannot mandatorily direct extension of benefit to the appellants. In the fact and circumstances of the case the decision as to extension of benefits of the subsidy to the appellants, therefore, should be left to the respondent
authorities particularly when respondent no. 1 under the scheme has the authority to relax any of the clauses of the said scheme which in our view, includes the date of commencement of commercial production.
13.
In the aforesaid facts and circumstances, we modify the order under appeal to the extent that the respondent no. 1 shall consider the application for subsidy in the light of the observations made herein above and take a decision whether by extending the time period fixed under the said scheme for commencing commercial production for availing subsidy the benefits can be given to the appellants. The respondent no. 1 shall decide the application made by the appellants in this perspective and dispose of the same within a period of six weeks from the date of the communication of a copy of this order downloaded from the official website by affording the appellants a reasonable opportunity of hearing. The order shall be communicated to the appellants within ten days from the date of passing of the same. It is made clear that respondent no. 1 shall be free to decide the issue independently without being anyway influenced by the observations made in this order and we further clarify that we have not gone into the merits of the claim of the appellants.
14.
The appeal is accordingly disposed of. The parties including respondent no. 1 shall act on the basis of a server copy of this order downloaded from the official website without insisting upon production of a certified copy thereof. (KAUSIK CHANDA, J.) (ARINDAM MUKHERJEE, J.)