Created by Fuzzy Cloud

Patna High Court

M/s Responce Renewable Energy LimitedversusThe State of Bihar

Decided
Disposal
ALLOWED

Holding

The court set aside the authorities' orders and directed that the subsidy be granted from the date of SIPB approval, as the denial was arbitrary and contrary to the policy.

Summary

M/s Responce Renewable Energy Ltd. and M/s Glatt Solution (P) Ltd. filed writ petitions challenging the denial of a 2% interest subsidy under the Bihar Industrial Incentive Policy, 2011 (as amended in 2014). The State of Bihar authorities rejected their claims on the ground that the companies had commenced commercial production before obtaining approval from the State Investment Promotion Board (SIPB). The petitioners argued that the policy does not make SIPB approval a condition precedent and that the authorities’ reliance on this ground was arbitrary and contrary to earlier judgments. The court examined the policy provisions, the letters from the Deputy Director (Technical) indicating that the date of the Power Purchase Agreement would be deemed the approval date, and prior case law. Finding no legal basis to deny the subsidy, the court set aside the impugned orders and directed the respondents to grant the subsidy from the date of SIPB approval and make payment within three months. The writ petitions were allowed to the extent indicated.

Issues considered

  • The denial of the 2% interest subsidy on the ground that commercial production started before SIPB approval is legally valid.
  • Whether the Bihar Industrial Incentive Policy, 2011 (as amended) requires SIPB approval as a condition precedent to eligibility for the subsidy.
  • Whether the authorities' order denying the subsidy should be quashed.
  • From which date the petitioner is entitled to receive the interest subsidy.

Subjects

  • interest subsidy
  • industrial incentive policy
  • SIPB approval
  • Bihar
  • writ petition
  • quashing order
  • eligibility
  • commercial production

Judgment

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.16164 of 2022
     ======================================================
     M/s Responce Renewable Energy Limited a Limited Company incorporated
     under the provisions of Companies Act, 1956, having its registered office at
     76, Pandit Purushottam Roy Street, 3rd floor, Kilkata - 700007, West Bengal,
     through its General Manager namely Sant Prasad, (Male), aged about 45
     years, son of Sri Dudh Nath Tiwari, Resident of Baramudi, P.S. Baramudi,
     District - Dhanbad (Jharkhand).
                                                                 ... ... Petitioner/s
                                        Versus
1.    The State of Bihar through the Principal Secretary, Department of Industry,
      Government of Bihar, Patna.
2.   The Principal Secretary, Department of Industry, Government of Bihar,
     Patna.
3.   The Director of Industries, Department of Industry, Government of Bihar,
     Patna.
4.   The Deputy Director (Technical), Department of Industries, Government of
     Bihar, Patna.
5.   The General Manager, District Industry Centre, Patna.
                                                              ... ... Respondent/s
     ======================================================
                                         with
                   Civil Writ Jurisdiction Case No. 16335 of 2022
     ======================================================
     M/s. Glatt Solution (P) Limited, A Private Limited Company incorporated
     under the provisions of Companies Act, 1956, having its registered office at
     76, Pandit Purshottam Roy Street, 3rd Floor, Kolkata- 700007 through its
     General Manager namely Sant Prasad, (Male), aged about 45 years, Son of Sri
     Dudh Nath Tiwari, Resident of Baramudi, P.S.- Baramudi, District- Dhanbad
     (Jharkhand).
                                                                 ... ... Petitioner/s
                                        Versus
1.    The State of Bihar through the Principal Secretary, Department of Industry,
      Government of Bihar, Vikash Bhawan, Baily Road, Patna.
2.   The Principal Secretary, Department of Industry, Government of Bihar,
     Vikash Bhawan, Baily Road, Patna.
3.   The Director of Industries, Department of Industry, Government of Bihar,
     Vikash Bhawan, Baily Road, Patna.
4.   The Deputy Director (Technical), Department of Industries, Government of
     Bihar, Vikash Bhawan, Baily Road, Patna.
5.   The General Manager, District Industry Centre, Patna.
                                               ... ... Respondent/s
     ======================================================
     Appearance :
     (In Civil Writ Jurisdiction Case No. 16164 of 2022)
     For the Petitioner/s      :       Mr. SD Sanjay, Sr. Adv.
                               :       Mr. Mohit Agarwal, Adv.
Patna High Court CWJC No.16164 of 2022 dt.15-12-2023
                                           2/8




                                 :       Mr. Lokesh Kumar, Adv.
                                 :       Mr. Rahul Kumar, Adv.
       For the Respondent/s      :       Mr. Ravish Chandra, AC to SC6
       (In Civil Writ Jurisdiction Case No. 16335 of 2022)
       For the Petitioner/s      :       Mr. Mohit Agarwal, Adv.
       For the Respondent/s      :       Mr. Zaki Haider, AC SC9
       ======================================================
       CORAM: HONOURABLE MR. JUSTICE A. ABHISHEK REDDY
       ORAL JUDGMENT
         Date : 15-12-2023
                 Heard the parties.

                    Both the cases are disposed off by this common order as

       the issue in both the matters is one and the same.

                    CWJC No. 16164 of 2022 has been filed for the

       following reliefs:-

                                                    “i) For quashing of the Letter
                                        dated 12.09.2022 bearing Memo No. SIPB/906
                                        issued under the signature of the Respondent
                                        Director of Industries, Bihar Patna whereby
                                        the Petitioner's entitlement for grant of 2%
                                        Interest Subsidy under the Industrial Incentive
                                        Policy, 2011 was rejected on the ground that
                                        the said subsidy was introduced with effect
                                        from 20.01.2015 and the Petitioner had its
                                        SIPB approval prior to the date of coming into
                                        effect of the said subsidy without considering
                                        the fact that the Respondent Dy. Director
                                        (Technical), Bihar, Patna vide its letter No.
                                        1209 dated 28.06.2013 has communicated the
                                        decision taken by SIPB Committee vide its
                                        minutes of meeting dated 24.05.2013 that the
                                        date of entering into Power Purchase
                                        Agreement shall be considered to be the date of
                                        SIPB approval of the project of the Petitioner
                                        and in Petitioner has entered into Power
                                        Purchase Agreement with BSPHCL on
                                        14.09.2016 which is post the date of
                                        Amendment No.11 dated 5.01.2015 and hence
                                        the decision of the said Respondent is wholly
                                        arbitrary and contrary to the scheme of the
                                        Industrial Incentive Policy, 2011;
Patna High Court CWJC No.16164 of 2022 dt.15-12-2023
                                           3/8




                                                     ii]       For        issuance      of
                                        writ/direction/order, directing the respondents
                                        to forthwith reimburse the interest subsidy of
                                        2% for the period 01.04.2017 to 31.07.2018
                                        and subsequent there upon, on the term loan
                                        amount of rupees 49.92 crores availed from
                                        State Bank of India, by the Petitioner Company
                                        as promised under the Industrial Incentive
                                        (Amendment) Policy, Bihar, 2014 vide letter
                                        bearing letter no. 11/Patna dated 5.01.2015, as
                                        the same has not yet been credited in the
                                        account of the petitioner company despite
                                        fulfillment of eligibility condition;
                                                     iii) For a declaration that the
                                        Petitioner is entitled for the interest subsidy
                                        from the date of its commercial production ie
                                        since 30.03.2017 till 7 years as promised by the
                                        Respondents under the Industrial Incentive
                                        (Amendment) Policy, Bihar, 2014 vide letter
                                        bearing letter no. 11/Patna dated 5.01.2015;
                                                     iv) For a declaration that the
                                        respondent cannot deny the benefits promised
                                        under the Industrial Incentive Policy, 2011 as
                                        amended by Industrial Incentive (Amendment)
                                        Policy, Bihar, 2014 as the petitioner company
                                        fulfilled all the eligibility criteria as required
                                        under the said policy;
                                                     v) For a direction to the
                                        Respondents for grant of subsidies at the
                                        earliest to save the Petitioner's unit as it is
                                        suffering due to non imbursement of the
                                        amount of interest subsidy of 2% on term loan;
                                        and/or for any other relief[s] for which the
                                        Petitioner may be found entitled to in the facts
                                        & circumstances of the present case.”
                    CWJC No. 16335 of 2022 has been filed for the

       following reliefs:-

                                                   “(i) For quashing of the order
                                        dated 26.09.2022 issued vide Mermo No.
                                        SIPB/1114 dated 26.09.2022 under the
                                        signature of the Respondent Principal
                                        Secretary,   Department     of    Industries,
                                        Government of Bihar, Patna where by the claim
Patna High Court CWJC No.16164 of 2022 dt.15-12-2023
                                           4/8




                                        of the Petitioner for 2% interest subsidy as
                                        promised under the Industrial Incentive
                                        Amendment) Policy, Bihar, 2014 vide letter
                                        bearing letter no. 11/Patna dated 5.01.2015
                                        was denied on the ground that the SIPB and
                                        competent authority approval to the project of
                                        the Petitioner was prior to the date of
                                        amendment ignoring the fact that the
                                        Respondent Deputy Director (Technical),
                                        Department of Industries, Government of
                                        Bihar, Vikash Bhawan, Baily Road Patna vide
                                        its Letter No. 1208 dated 28.06.2013 had
                                        communicated that the SIPB vide its meeting
                                        dated 24.05.2013 had given consent that the
                                        date of Power Purchase Agreement with
                                        BSPHCL shall be considered the date of
                                        approval by SIPB and the Petitioner had
                                        entered Power Purchase Agreement with
                                        BSPHCL vide agreement dated 14.09.2016
                                        which is after the date of Industrial Incentive
                                        (Amendment) Policy, Bihar, 2014 bearing letter
                                        no. 11/Patna dated 5.01.2015;
                                                     ii]       For        issuance    of
                                        writ/direction/order, directing the respondents
                                        to forthwith reimburse the interest subsidy of
                                        2% for the period 01.03.2017 to 31.07.2018
                                        and subsequent there upon, on the term loan of
                                        an amount of rupees 16.50 crores availed from
                                        State Bank of India, by the Petitioner Company
                                        as promised under the Industrial Incentive
                                        (Amendment) Policy, Bihar, 2014 vide letter
                                        bearing letter no. 11/Patna dated 5.01.2015, as
                                        the same has not yet been credited in the
                                        account of the petitioner company despite
                                        fulfillment of eligibility condition;
                                                     iii) For a declaration that the
                                        Petitioner is entitled for the interest subsidy
                                        from the date of its commercial production ie
                                        since 28.02.2017 till 7 years as promised by the
                                        Respondents under the Industrial Incentive
                                        (Amendment) Policy, Bihar, 2014 vide letter
                                        bearing letter no. 11/Patna dated 5.01.2015;
                                                     iv] For a declaration that the
                                        respondent cannot deny the benefits promised
                                        under the Industrial Incentive Policy, 2011 as
Patna High Court CWJC No.16164 of 2022 dt.15-12-2023
                                           5/8




                                        amended by Industrial Incentive (Amendment)
                                        Policy, Bihar, 2014 as the petitioner company
                                        fulfilled all the eligibility criteria as required
                                        under the said policy;
                                                     v) For a direction to the
                                        Respondents for grant of subsidies at the
                                        earliest to save the Petitioner's unit as it is
                                        suffering due to non imbursement of the
                                        amount of interest subsidy of 2% on term loan;
                                        and/or for any other relief[s] for which the
                                        Petitioner may be found entitled to in the facts
                                        & circumstances of the present case.”
                    2. Learned counsel for the petitioner has stated that the

       impugned order is passed by the authority concerned solely on the

       ground that the petitioner has started production even before the

       approval has been granted by the State Investment Promotion

       Board (SIPB).

                    3. Learned counsel has stated that under the Bihar

       Industrial Incentive Policy, 2011, the petitioner’s entitlement for

       grant of 2% interest subsidy was denied on the ground that the

       petitioner has started commercial production even before the

       approval by SIPB and rejected the case of the petitioner.

                    4. Learned counsel has stated that there is nothing under

       the regulation which states that the approval of the SIPB is a

       condition precedent for starting the commercial production. The

       stand taken by the authorities is not only arbitrary, bad and illegal

       but also contrary to the scheme floated by the State of Bihar under

       the Bihar Industrial Incentive Policy, 2011, and therefore, prayed

       this Hon’ble Court to allow the present writ petition and give a
Patna High Court CWJC No.16164 of 2022 dt.15-12-2023
                                           6/8




       direction to the authorities concerned for granting the incentives

       under the Bihar Industrial Incentives policy, 2011.

                    5. Per contra, the learned counsel appearing on behalf of

       the respondents has vehemently opposed the prayer of this writ

       petition and has stated that the petitioner has violated the terms

       and conditions of the policy.

                    6. Learned counsel has stated that the petitioner has not

       taken prior approval of the SIPB before starting the production.

       The act of the petitioner in starting the production even before the

       approval was granted is in violation of the incentive policy, and

       therefore, the petitioner is not entitled to any incentive as

       envisaged under the Incentive Policy, 2011. Further, it is stated

       under similar circumstances the authorities have rejected the case

       of M/s Jagaran Prakash Limited, Gaya after taking opinion of the

       Law Department, and therefore, the petitioner’s case which is also

       similar has also been rejected. Learned counsel for the respondents

       has prayed to dismiss the present writ petition.

                    7. In the present case, the State of Bihar has floated

       Bihar Industrial Incentive Policy, 2011 to attract investments in the

       State. The petitioner, admittedly, has applied to the Competent

       Authority i.e. SIPB and was granted approval on 14.09.2016. But,

       the case of the petitioner has been rejected on the sole ground that
Patna High Court CWJC No.16164 of 2022 dt.15-12-2023
                                           7/8




       the petitioner has started commercial production even before the

       grant of approval by SIPB. The said stand taken by the official

       respondents appears to be an arbitrary and frivolous one.

       Admittedly the authorities have invited investors/ industrialists to

       invest in the State of Bihar by floating the Bihar Industrial

       Incentive Policy, 2011 and under the scheme some incentives have

       being offered to the Businessmen who have established their

       industries in the state of Bihar. The stand taken by the respondent

       that the petitioner has started production even before the grant of

       approval and therefore not entitled to any incentive under the

       scheme is without any legal basis. The aforesaid policy does not

       lay any guideline or restrictions on the industrialists that the

       production cannot be started before the approval by SIPB is

       granted and does not state that any industry which starts

       production without getting the necessary approvals from SIPB is

       dis-entitled to the incentives under the scheme. Admittedly in the

       present case, the approval was granted on 14.09.2016 and it is the

       case of the respondents that the commercial production has started

       on 30.03.2017, merely because the production is started the

       incentive under the scheme cannot be disallowed. At the most, the

       incentives can be granted from the date of the approval of SIPB

       but the authorities cannot deny the incentives under the scheme all
             Patna High Court CWJC No.16164 of 2022 dt.15-12-2023
                                                        8/8




                    together. This Hon’ble Court vide order dated 10.10.2023 in

                    CWJC No. 11004 of 2023 and in other judgments has held that the

                    incentive under the Bihar Industrial Incentive Policy, 2011 cannot

                    be denied solely on the ground that the commercial production has

                    been started prior to obtaining permission from SIPB.

                                 8. Having regard to the above, the court does not find

                    any valid reasons for upholding the impugned order passed by the

                    authorities and the same is set aside. The authorities are directed to

                    grant the incentives as envisaged under the Bihar Industrial

                    Incentive Policy, 2011 from the date of approval of the SIPB and

                    make necessary payments to the petitioner as per the entitlement

                    within a period of three months from the date of receipt of the

                    copy of this order.

                                 9. The present writ petitions are allowed to the extent

                    indicated.

                                               (A. Abhishek Reddy, J)
Ayush/-
AFR/NAFR                    NAFR
CAV DATE                     NA
Uploading Date             23.01.2024.
Transmission Date            NA


Continue reading with your account

Sign in to read the full judgment. It’s free.

Sign in to read

Checking your session…

For a signed copy suitable for filing, refer to the court's website.