Jai Bhawani Poha Udyog, Waraseoni, Dist. Balaghat vs State of M.P. and others

S.P. Khare, J.

This is a petition under Article 226 of the Constitution of India challenging the order dated 7-8-1991 (Annexure P-15) refusing to grant the "eligibility certificate" to the petitioner on the ground that the application was barred by limitation and for quashing the demand notice dated 16-8-1991 (Annexure P-17).

The petitioner is running a Poha industry at Waraseoni in Balaghat district in which production was commenced on 6-1-1988. An application was made by the petitioner for issuing ''eligibility certificate'' on 31-7-1990 so that the petitioner may get exemption from payment of sales-tax as per notification dated 23-10-1981 issued u/s 12 of the M.P. General Sales Tax Act, 1958. That application has been rejected by the respondent No. 3 by the impugned order dated 7-8-1991 on the ground that it was not made within 90 days of the commencement of production.

Rule 2(c) of the notification issued on 16-10-1986 as amended on 3-3-1989 is as under:--

"The application for provisional/permanent eligibility certificate shall ordinarily be made within ninety days of the commencement of production:

Provided that where such an application is made after the aforesaid period of ninety days, the authority competent to consider such application and to take a decision with regard to the grant of an eligibility certificate, if it is satisfied that the application could not be made for sufficient reason may, for reasons to be recorded in writing condone such delays."

The application is "ordinarily" to be made within 90 days of the commencement of the production. The proviso further specifically provides that the delay can be condoned if sufficient reasons are given for the delay. The grievance of the petitioner is that the applications of a large number of industries were considered and the eligibility certificates were granted even though the applications were made after the period of 90 days. The details have been given in the chart (Annexure P-16) annexed to the amended petition. This factual position is not disputed. The respondents have not assigned any reason for such discrimination. The respondents must adopt one standard or yardstick for everyone. The rule as to limitation period of 90 days is not very rigid. There is in built flexibility in it. If the respondent No. 3 had considered the applications of other industries after the expiry of the period of 90 days of the commencement of production then the petitioner could not be differentiated or singled out. There should have been equality of treatment.

4A. The object of granting the exemption was to provide incentive for establishment of industries in the hitherto backward areas so as to keep pace with the industrialisation in other developed areas and to open avenues for increasing the productivity and employment. If this laudable objective is the paramount consideration then rejection of the application on the technical ground of limitation is a retrograde step. Apart from the impugned order being discriminatory it is against the spirit of the scheme of exemption. It is for this reason that Rule 2(c) of 1986 notification was amended in 1989 so that no injustice is done on the pretext of limitation. The proviso to Rule 2(c) is akin to section 5 of the Limitation Act, 1963 which is always considered liberally. The use of the word ''ordinarily'' further softens the rigour. The case of the petitioner is that it is only after the decision of this Court in Neha Poha Udyog, 1990(23) VKN 1 it was settled that Poha industries are also eligible for exemption and then the application was made and it was sufficient cause for not making the application earlier. In Suresh Kumar vs. Kurban Hussain, 1996 MPLJ 330 it has been held that the applicant must get proper opportunity to explain the delay.

It would be better if the application of the petitioner is considered on merits than rejecting it on the technical ground of limitation. A long time has already lapsed.

The impugned order dated 7-8-1991 (Annexure P-15) and the demand notice dated 16-8-1991 (Annexure P-17) are quashed. The respondents are directed to consider the application of the petitioner on merits on relevant criterion.