TAPTI OIL INDUSTRIES Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) These two petitions, in each of which petitioner No. 1 is a partnership firm and petitioner No. 2 is a partner, raise a question as to whether the petitioners can claim a right to issue of an Eligibility Certificate under a scheme framed by the State Government under which several incentives were promised to small scale, medium and large industries with a view to speed up the pace of industrialisation of the developing industries (sic) in the State. The petition was required to be heard by the Full Bench because on the construction of the said scheme a Division Bench of this Court at Aurangabad held that even though the required steps under the scheme are completed, an industry is not entitled to enforce any right for the issue of an eligibility certificate under the scheme under Article 226 of the Constitution of India.

(2.) A scheme of incentives comprising mainly incentives in the nature of refund of sales tax, relief in electricity duty, octroi duty, etc., has been in force in Maharashtra since 1964. That scheme was modified and the period of the scheme, as modified from 1st August, 1966, expired on 31st October, 1979. The Government having its mind the question of revising and integrating the scheme and making it more board-based, formulated a scheme of incentives with effect from 1st August, 1979 for the period of 1st August, 1979 to 31st March, 1983. Under this scheme the area of the State of Maharashtra was grouped under four groups A, B, C and D with reference to the nature of development that had already taken place. The petitioners in Writ Petition No. 988 of 1983 are from Bhusaval in Western Maharashtra and they are in Bombay Division, District Jalgaon being in Group C. The scheme notified that incentives under it would be available to eligible units in the private sector also, along with the State public sector/joint sector and the co-operative sector. Clause 2.1 of the scheme dealt with the "date of effect of eligibility under Part 1" of the 1979 scheme and provided that the Eligibility Certificate under Part 1 of the 1979 scheme would be issued effective from the date of commencement of commercial production and the said date would be determined by the implementing agency on the totality of the documentary evidence led by the eligible unit in this behalf as also such other information, details etc. required or called for in connection therewith such as date of power connection, electricity consumption bills over a period, first sale bill, excise licence, extract of excise register or of production register, etc. Effective steps for the purposes of the 1979 scheme were classified into "initial effective steps" and "final effective steps" in paragraph 2.3 of the scheme. Under Explanation II to this clause it was provided that based on the documentary evidence let by the eligible unit in this regard, the implementing agency shall determine the date on which all the effective steps, both initial and final, are completed. The scheme gave the definition of fixed assets, gross fixed capital investment, local sales tax law and other terms appearing in the scheme. Under Clause 2.12 the period of eligibility under Part I of the scheme in regard to the eligible unit was to be three years, five years, seven years, nine years or 13 years, as the case may be, depending on the nature and location of the eligible unit, during which the sales tax incentive could be available to the unit subject to fulfilment of the conditions of the scheme. The implementing authority nominated under the scheme was the State Industrial and Investment Corporation of Maharashtra Ltd. For each of the four regions of the State of Maharashtra, there was a development corporation. Clause 4.4 of the scheme referred to application for eligibility and since the whole dispute in the petition is whether this application made by the petitioners could be granted or not, we reproduce the said paragraph:

(3.) Now admittedly a notification under section 41(1) of the Bombay Sales Tax Act, 1959, has been issued by the State Government which has the effect of amending an earlier notification dated 28th December, 1959 issued under the same provision. By this new notification dated 5th July, 1980 with a view to given effect to the scheme for sales tax exemption, Entry 136 has been added as follows :---