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Judgment
Tejinder Singh Dhindsa, J.—The challenge in the instant writ petition is to the order dated 12.12.2006 (Annexure P-1) passed by the respondent-Haryana State Industrial Development Corporation Ltd. (hereinafter to be referred as the respondent-Corporation)rejecting the claim of the petitioner-company for the grant of 20% rebate on the land cost. A brief factual backdrop would be necessary.
The Central Govt. in the year 1999 announced an Industrial Policy which sought to consolidate the past progress that had been initiated in the light of the Industrial Policy Statement of 1992 as also the Industrial Policy of 1997. The 1999 Industrial Policy clearly aimed at promoting industrial growth in the context of overall economic development of the State. Such Policy further sought to promote integration of private initiative in the developmental process of the State. The State of Haryana proposed a number of measures to achieve the objectives of the Industrial Policy, 1999 and one of the suggested measures was to rationalize the package of incentives towards a more effective and meaningful, speedy industrial development of the State. It was decided that the industrial areas/estates in the State would be developed in the said sector exclusively by the respondent-Corporation in joint venture with the private sector. It was further decided that in order to ensure better utilization of infrastructure and speedy industrialization it would be the endeavour of the State Govt. to provide land to the entrepreneurs for setting up the industrial units at a reasonable price. A suitable rebate on the land cost was also envisaged in favour of such entrepreneurs, who would commence commercial production in the units within three years of the offer of possession of the plot in question. The relevant clause in this regard in the Industrial Policy of the year 1999, duly adopted by the State Govt. and placed on record as Annexure P-3 read in the following terms:-
Suitable rebate on land cost shall be given to those entrepreneurs who start commercial production in their units within 3 years of offer of possession of industrial plots.
It has been pleaded that acting on the promises held out by the State Govt. the petitioner-company, which is duly incorporated in accordance with the provisions of the Companies Act, 1956 submitted an application in November, 1999 for allotment of an industrial plot at I.M.T., Manesar. Such application was accompanied with the requisite 10% application money. A regular letter of allotment dated 8.12.1999 (Annexure P-4) was issued by the respondent-Corporation in favour of the petitioner-company, allotting Plot No. 7 in Sector 3 situated in Industrial Estate, I.M.T., Manesar measuring 20475 sq. meters for setting up an industrial project of auto electronics, electronics components and home appliances for a consideration amount of Rs. 3,07,12,500/-. Clause 8 sub clause (a) of the letter of allotment read in the following terms:-
Schedule of construction & going into production:
(a) The allottee shall start construction of building as per approved building plans within a period of one year of offer of possession and will be required to start commercial production within a period of three years from the date of offer of possession. However, in case, the allottee is not able to start construction within one year, extension can be granted by the HSIDC/Competent Authority for a maximum period of six months, if the allottee is able to satisfy the authority that the allottee could not start construction for reasons beyond his control.....
A Possession Certificate dated 23.3.2000 (Annexure P-5) was also issued to the petitioner-company. A perusal thereof would clearly reveal that such Possession Certificate was symbolic in nature and had been issued for the limited purpose of approval of building plans and for completion of other formalities. It was clearly stipulated in such Possession Certificate that the physical demarcation and possession of the plot would be given at site only upon approval of building plans and completion of other terms and conditions contained in the letter of allotment. The physical possession of the industrial plot was handed over to the petitioner-company on 6.4.2000 as would be clear from the handing over certificate issued by the respondent-Corporation at Annexure P-6. The petitioner-company commenced construction upon the industrial plot on 1.12.2000.
It has further been pleaded that even though, the petitioner-company had the option to pay the sale consideration qua the industrial plot allotteed by 8.6.2002, yet, it chose to pay the entire sale consideration by 16.2.2001. In recognition of such fact the respondent-Corporation even executed a conveyance deed in respect of the said industrial plot in favour of the petitioner-company on 16.2.2001 itself. A copy of the Deed of Conveyance dated 16.2.2001 has been placed on record as Annexure P-8.
Commercial production on the industrial plot was commenced by the petitioner-company on 15.12.2001 itself. In the light of the facts, whereby physical possession of the industrial plot had been handed over on 6.4.2000 and commercial production stood commenced on 15.12.2001, the petitioner-company applied to the respondent-Corporation for the release of rebate of 20% towards land cost in the light of incentive clause contained in the Industrial Policy. Such application has been rejected by the respondent-Corporation in terms of issuance of impugned order dated 12.12.2006 (Annexure P-1) in the light of the following three objections:-
The construction of the building was to start within one year from the date of offer of possession i.e. 08.12.1999 whereas the construction was actually started in January, 2001 i.e. after one year.
That you have obtained the occupation certificate on 22.8.2003 whereas the implementation period expired on 8.12.2002.
You have bored a tube well in the premises without obtaining the approval of HSIDC.
It would require notice that at the very outset Mr. Dheeraj Chawla, learned counsel appearing for the respondent-Corporation has informed the Court that the rejection of the claim of the petitioner seeking 20% rebate on land cost in respect of Plot No. 7/3, I.M.T., Manesar is being justified solely on the basis of objection No. 2 i.e. the petitioner-company having obtained the Occupation Certificate on 22.8.2003, whereas the implementation period expired on 8.12.2002. Counsel would categorically submit that objections No. 1 and 3, even though, cited in the impugned order dated 12.12.2006 are not being pressed by the respondent-Corporation against the petitioner-company.
As such the validity of the impugned order dated 12.12.2006 is being considered by this Court confined only in the light of objection No. 2.
Mr. H.L. Tikku, learned senior counsel appearing for the petitioner-company has vehemently argued that in terms of clause 8 sub clause (a) of the letter of allotment dated 8.12.1999 the petitioner-company was required to commence commercial production within a period of three years from the date of offer of possession. It has been argued that physical possession of the industrial plot was delivered only on 6.4.2000 vide Annexure P-6 and the commercial production had commenced on 15.12.2001. To substantiate such assertion learned senior counsel would advert to a copy of the balance sheet of the petitioner-company placed on record as Annexure P-18. Accordingly, it has been argued that a right came to vest with the petitioner-company in the light of the stipulation contained in the Industrial Policy for grant of suitable rebate upon having started commercial production within three years of the offer of possession of the industrial plot. Learned senior counsel would further submit that the objection No. 2, citing the issuance of the Occupation Certificate on 22.8.2003 by the respondent-Corporation as against the implementation period having expired on 8.12.2002 was wholly untenable. Counsel would contend that the application for issuance of Occupation Certificate had been submitted on 15.3.2002 as would be apparent in the Occupation Certificate dated 28.8.2003 at Annexure P-9 itself and the delay, if any, was on the part of the respondent-Corporation which had taken a period of almost one year and five months in processing such application. Argument raised on behalf of the petitioner-company as such is that such delay on the part of the respondent-Corporation could not deny to the petitioner-company its right to claim rebate as such right stood crystalized upon commercial production having commenced on 15.12.2001 i.e. well within the period of three years from the date of offer of possession of the industrial plot.
Per contra, learned counsel appearing for the respondent- Corporation would submit that the regular letter of allotment in respect of the plot in question had been issued on 8.12.1999 and in terms of clause 8 sub clause (a) the period of implementation of the project was to expire on completion of three years to be reckoned from 8.12.1999 i.e. on 8.12.2002. Counsel would urge that since the Occupation Certificate had been issued only on 22.8.2003 (Annexure P-9) as such it is such date wherefrom it can be presumed that the petitioner-company commenced commercial production. Stand taken on behalf of the respondent-Corporation is that the petitioner-company would not be covered for the grant of benefit of rebate as is being claimed.
We have heard learned counsel for the parties at length and have perused the pleadings on record.
The short question that would arise for consideration before us is as to whether the petitioner-company can be denied the benefit of suitable rebate on the price of the plot upon having commenced commercial production within three years of the date of possession of the plot in question merely on account of inaction on the part of the respondent-Corporation and having delayed the issuance of the Occupation Certificate dated 22.8.2003?
A somewhat similar question arose for consideration before the Hon''ble Supreme Court in case of Hitech Electrothermics and Hydropower Ltd. Vs. State of Kerala and Others, In this case an industrial unit had been set up in the State of Kerala having been lured by a policy decision of the Govt. to claim the benefit of concessional tariff and the delay in production had been occasioned on account of inaction on the part of the Kerala State Electricity Board in providing the necessary electric connection and against such factual backdrop it was to be considered as to whether the industrial unit could still benefit from the incentive of concessional tariff inspite of there having been delay in commencement of production. The Hon''ble Apex Court had held in the following terms:-
On perusal of the industrial policy of the government unequivocally indicating that concessional tariff rate would be given as well as the order of the Electricity Board adopting the same, it can be safely held that such concession could be availed of by the industrial units for a period of five years from the date, commercial production which start such production in between 1.1.92 and 31.12.1996. In this context the stand of the Board as well as the State Govt. cannot be held to be devoid of any substance when admittedly the commercial production of the appellant''s unit did not start till 31.12.96. But the question for consideration is when the government has itself come forward alluring industrial units to set up their industries and when under the provisions of the Electricity Act, every consumer has the right to get the supply of power and in the case in hand, when power allocation has been made in favour of the appellant as early as in 1995, and yet the same power could not be supplied for such non-supply of power, the commercial production could not start by 31.12.96, would it at all be equitable to deny the relief to the appellant by giving a literal interpretation to the incentive scheme of the government as adopted by the Board? Our answer to this question must be in the negative. There are several documents on record, which were produced before us to indicate that the appellant has been communicating with the Board, seeking power connection at an early date so that it would be able to start commercial production by 31.12.96. In making such communication, the appellant has been bringing it to the notice of the Board but for supply, the appellant has made all other arrangements to set the production, but yet there has been inaction on the part of the Board in providing power to the appellant. Mr. Rohtagi, appearing for the Board no doubt brought to our notice a letter from the appellant to the Board and contended that it could not have been possible for the appellant to start production by 31.12.96 but we are unable to accept this submission nor are we making deeper probe into the matter. Suffice it to say that the appellant has been denied power supply by the Board in appropriate time, which has prevented the appellant from starting the commercial production by 31.12.96. This being the position, and having regard to the gamut of the circumstances, starting from the government policy resolution and culminating in setting up of the factory by the appellant in Kerala and commensurate the production of ferro alloys, though not by 31.12.96, we are of the considered opinion that granting the concessional tariff for a period of three years instead of five years, as indicated in the policy resolution would meet the ends of justice and we, accordingly, so direct.
Adverting back to the facts of the present case, it can be seen that the facts are glaring. The regular letter of allotment was issued on 8.12.1999. Actual physical possession was delivered on 6.4.2000. The categoric assertion on the part of the petitioner-company that commercial production commenced w.e.f. 15.12.2001 carries no rebuttal in the written statement filed on behalf of the respondent-Corporation. Admittedly, an application for issuance of Occupation Certificate had been submitted by the petitioner-company on 15.3.2002 but the same remained under process for a period of one year and five months till the actual issuance of the Occupation Certificate on 28.8.2003 vide Annexure P-9. The delay in issuance of the Occupation Certificate cannot work to the detriment and prejudice of the petitioner-company. It cannot lie in the mouth of a State instrumentality like the respondent-Corporation, which is committed to promoting industrial development in the State to first hold out promises for potential entrepreneurs in the shape of incentives like rebates on the price of plots upon commencing commercial production within a stipulated time frame and thereafter deny the same very incentive in delaying the issuance of the requisite Occupation Certificate. We are of the considered view that objection No. 2 in the impugned order dated 12.12.2006 (Annexure P-1) rejecting the application of the petitioner-company for grant of rebate on the land cost is wholly untenable.
At this stage learned counsel appearing for the respondent- Corporation would refer to clause 15 of the regular letter of allotment dated 8.12.1999 (Annexure P-4) which reads in the following terms:-
The Allottee shall apply for an Occupation Certificate in filed office of HSIDC and obtain the same from the DTP of HSIDC before occupying the building. The allottee shall, thereafter, inform the Estate Manager (local HSIDC office) that the building has been completed, machinery installed, the unit is ready for commercial production and apply for the Project Completion Certificate. The Estate Manager or his representative (of HSIDC) will inspect the site within a week of the above communication. After satisfaction upon such inspection, HSIDC will issue a Project Completion Certificate.
Counsel would submit that the petitioner-company had commenced commercial production in the month of December, 2001 i.e. even prior to the issuance of the Occupation Certificate dated 28.8.2003 and accordingly, condition No. 15 of the letter of allotment had stood violated. Counsel would argue that even on such count the rebate on land cost claimed by the petitioner-company was not admissible.
We find even such submission raised by learned counsel to be wholly misplaced and misconceived. In the light of the Industrial Policy at Annexure P-3, the petitioner-company was vested with a right to claim the rebate on the price of the plot upon fulfillment of the condition of having commenced commercial production within a period of three years from the date of possession of the plot in question. The fact regarding the petitioner-company having done so is not disputed. The date of issuance of the Occupation Certificate is totally alien in so far as consideration of the claim of the rebate on the cost of the plot is concerned. Even otherwise, it is well settled that the validity of an order has to be adjudged in the light of the reasons furnished therein and not in the light of the explanations given subsequently. The objection as regards violation of condition No. 15 of the letter of allotment dated 8.12.1999 which is sought to be raised now before this Court does not even find a mention in the impugned order dated 12.12.2006. Such plea, accordingly, would not be open to the respondent-Corporation. In taking such view we would draw support from the judgement of the Hon''ble Supreme Court rendered in case of Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, , wherein it was observed in the following terms:-
The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. In Commissioner of Police, Bombay Vs. Gordhandas Bhanji,
Public orders publicly made in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant or of what was in his mind or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
Orders are not like old wine becoming better as they grow older.
Accordingly, the petitioner-company is held entitled to the admissible rebate on the land cost in respect of Plot No. 7/3 I.M.T., Manesar on account of having commenced commercial production within the stipulated period of three years of the date of possession.
On a pointed query having been raised by the Court to Mr. Dheeraj Chawla, learned counsel appearing on behalf of the respondent-Corporation, it has been fairly conceded that the Corporation has been granting a 20% rebate on the land cost to all other eligible industrial units. The petitioner-company, likewise, is held entitled to 20% rebate on the land cost in respect of the plot in question. For the reasons recorded above the impugned order dated 12.12.2006 (Annexure P-1) is set aside. The respondent-Corporation shall refund to the petitioner-company an amount towards rebate equivalent to 20% of the price of the plot i.e. Plot No. 7/3, I.M.T., Manesar within a period of four months from the date of receipt of a certified copy of this order, failing which the petitioner-company would also be entitled to interest thereupon @ 8% per annum.
Petition allowed in the aforesaid terms.