IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 19-06-2006 CORAM THE HONOURABLE MR.JUSTICE M.KARPAGAVINAYAGAM THE HONOURABLE MR.JUSTICE AR.RAMALINGAM AND THE HONOURABLE MR.JUSTICE V.DHANAPALAN WRIT PETITION Nos.16669 OF 1999, 3733 TO 3737 AND 14722 OF 2001 W.P.No.16669 OF 1999 : M/s.Vairavikulam Lime Products Private Limited, E-47/1, 17th Cross Street, Besant Nagar, Chennai-600 090. ... Petitioner -vs- 1.Government of India, Ministry of Industry, Department of Industrial Development SSI (P) Section, Udyog Bhavan, New Delhi. 2.Director, Industries Department, Thattan Chavadi, Pondicherry. 3.The Secretary, Industries Department, Pondicherry. 4.The Secretary, Department of Power, Pondicherry. https://hcservices.ecourts.gov.in/hcservices/ 5.The Superintending Engineer, Electricity Department, Pondicherry. ... Respondents WP NOS. 3733 TO 3737 OF 2001 M/s. Henkel Spic India Ltd., Peralam Main Road, Thirunallar Karaikal 609 607. Pondicherry ... Petitioner in WP 3733/2001 M/s. MEIRS PHARMA (INDIA) PVT LTD, 3, CHINNA SALAI ROAD, RAYANPALAYAM, VARICHIKUDY PO KARAIKAL 609 609 ... Petitioner in WP 3734/2001 M/s. ADITHYA FERRO ALLOY 1070 A SATHY ROAD OPP. TEXTILE COMPANY GANAPATHY, COIMBATORE 641 006... Petitioner in WP NO. 3735 of 2001 M/S KANYAKA FINE WELD LTD., R.S.NO. 83/1 NAGORE MAIN ROAD, MELAVANJORE,T.R.PATINAM KARAIKAL 611 002 ...Petitioner in W.P.No. 3736 of 2001 M/S VAIGAI INDUSTRIES (INDIA) PRIVATE LTD., R.S.NO. 32/1 & 32/2 MELAKASAKUDY VILLAGE, NEDUNGADU COMMUNE, KARAIKAL 609 603 ...petitioner in W.P No. 3737 of 2001 W.P. NO. 14722 OF 2001 H& R JOHNSON (INDIA) LTD., PLOT NO. 143 THIRUNALLAR AMBAGARATHUR ROAD, TUENNARGUDI, SELLORE POST, KARAIKAL 609 607 REP BY V.SRINIVASA RENGAN GENERAL MANAGER (OPERATION)...Petitioner in W P NO. 14722 of 2001 -VS- https://hcservices.ecourts.gov.in/hcservices/ 1.GOVERNMENT OF INDIA MINISTRY OF INDUSTRY DEPARTMENT OF INDUSTRIAL DEVELOPMENT SSI (P) SECTION, UDYOG BHAVAN, NEW DELHI 2.THE SECRETARY, INDUSTRIES DEPARTMENT, PONDICHERRY 3.THE SUPERINTENDING ENGINEER, ELECTRICITY DEPARTMENT, PONDICHERRY. ...RESPONDENTS IN W.P NOS 3733 TO 3737 AND 14722 OF 2001 WP NOS. 16669 of 1999 and 14722 of 2001 Petition under Article 226 of the Constitution of India praying to issue a writ of delcaration declarating that the petitioner could be entitle to enjoy power subsidy for remaining periods of 4 years in terms of notification of the 1st Respondent in G.O. RT. NO. 9/91 Industries, dated 11.02.1991 and consequently direct the respondents to forthwith extend to the petitioner the benefit of power subsidy in respect of the petitioners' Industry respectively. WP NOS. 3733 TO 3737 OF 2001 Petition under Article 226 of the Constitution of India praying to issue a writ of certiorified Mandamus calling for records of the 2nd Respondent in letter No. 1- 13/6526/Ind/ADA/A6/2000 Dated 05.10.2000 quash the same and consequently direct the respondents to forthwith extend the power subsidy for remaining period of two years to the petitioner Industry in WP 3733 and 3734 of 2001 and of 5 years to the petitioner Industry in WP 3735 to 3737 of 2001 respectively. For petitioner : Mr.R.Muthukumarasamy, Senior Counsel, for Mr.C.S.Krishnamoorthy, assisted by Mrs.R.Thenmozhi in W.P.Nos.16669 of 1999 and 3733 to 3736 & 14722 of 2001. and Ms. Abdul Saleem for M/s. Anand Abdul Vinod Associates in WP 3737/01 https://hcservices.ecourts.gov.in/hcservices/ For respondent No.1 : Mr.T.S.Sivagnanam, Senior Central Government Standing Counsel. in all WPs For respondents 2 to 5 : Mr.K.K.Sasidharan, Additional Government Pleader (Pondy) in WP 16669/99 For Respondents 2 and 3 in WP 3733 to 3737 and 14722/2001 O R D E R M.KARPAGAVINAYAGAM,J. The common question that arises for consideration in these batch of Writ Petitions, which has been referred to this Full Bench, is as follows : "Whether the order of the Government of Pondicherry, in G.O.Rt.No.30, Industries, dated 28.05.1997, withdrawing its earlier order in G.O.Rt.No.9 of 1991, Industries, dated 11.02.1991, granting Subsidy Incentive Scheme to the industrial units for five years, even before the expiry of the said period, is valid or not ?" 2. The short facts, leading to the reference of the matter to this Full Bench, are as follows : "(i) Writ petitioners are industries, situated in Karaikal and Mahe regions of the Union Territory of Pondicherry. (ii) The Government of Pondicherry called upon the promoters to set up industries within the Union Territory of Pondicherry, promising certain incentives and various concessions. (iii) On 11.02.1991, the Government of Pondicherry issued an order in G.O.Rt.No.9 of 1991, providing for a fresh scheme of electricity subsidy tariff to all industries, which are energised on or after 01.03.1991 in Karaikal and Mahe regions, in the nature of incentives, offered to encourage setting up of industries, for a period of five years. (iv) The petitioners sought to act upon the above incentive scheme and set up industries in the backward regions of Karaikal and Mahe regions of Pondicherry and commenced their production, after investing huge sums, on https://hcservices.ecourts.gov.in/hcservices/ the assumption that they would be given the benefit of the above scheme for the full term of five years. (v) However, by a subsequent order in G.O.Rt.No.30, Industries, dated 28.05.1997, the Subsidy Incentive Scheme was withdrawn by the Government of Pondicherry, even before the expiry of five year period. (vi) Based on the above order, the Government of Pondicherry discontinued the tariff concession, given to the petitioners. (vii) It is, under those circumstances, Writ Petitions were filed by the petitioners in the year 1999, challenging the same. (viii) A learned single Judge of this Court disposed of the said Writ Petitions on 12.07.2000, directing the petitioners to approach the Government of Pondicherry and make a representation which would be disposed of by the Government within a stipulated period. (ix) Accordingly, the petitioners made representations to the Government, contending that they had acted on the basis of tariff concession in G.O.Rt.No.9 of 1991 and altered their position and requesting the Government to extend the benefits for the remaining period. However, the Government of Pondicherry rejected the said representations, by an order dated 05.10.2000. Thereupon, the petitioners have filed these batch of Writ Petitions, seeking to quash the orders passed by the Government, by holding that the withdrawal of tariff concession is invalid in law and consequently to direct the Government of Pondicherry to extend the tariff concession for the full period of five years. (x) In the meantime, one of the industries by name M/s.Isas Thermo Alloys, instead of approaching the Government by making a representation, straightaway filed a writ petition in W.P.No.8010 of 1999, immediately after passing of the withdrawal order, dated 28.05.1997. (xi) The said Writ Petition was dismissed by the learned single Judge, mainly on the ground that the writ petitioner had not set up the unit and no production was commenced and, therefore, he was not entitled to tariff concession. (xii) Challenging the said order, the above industry, namely, M/s.Isas Thermo Alloys filed W.A.No.2081 of 1999 and the same was dismissed by the First Bench on 14.01.2000, holding that the said order of withdrawal by Pondicherry Government is valid. https://hcservices.ecourts.gov.in/hcservices/ (xiii) Thereupon, these batch of writ petitions, filed by the persons who failed before the Government of Pondicherry, came up for hearing before the learned single Judge, Justice K.P.Sivasubramaniam, as he then was. (xiv) At that time, it was brought to the notice of the learned single Judge that already the issue in question had been decided by the First Bench in W.A.No.2081 of 1999, by the order dated 14.01.2000. The learned single Judge, finding that the First Bench, in W.A.No.2081 of 1999, did not take into consideration the Supreme Court decision in Pawan Alloys case, reported in 1997 (7) SUPREME COURT CASES 251, thought it fit to refer the matter to a Larger Bench, as the Pawan Alloys case would squarely apply to the facts of the present case and, as such, the decision taken by the First Bench in W.A.No.2081 of 1999 requires reconsideration. (xv) That is how all these matters have been placed before this Full Bench, by the orders of the Hon'ble Chief Justice." 3. Mr.R.Muthukumarasamy, learned Senior Counsel, appearing for the petitioners, would make the following submissions, by way of challenge to the Government Order, dated 28.05.1997, withdrawing tariff concession : (a) The Government Order in G.O.Rt.No.9 of 1991, dated 11.02.1991, providing tariff concession for five years by the Government of Pondicherry is in the nature of representation/promise, assuring industries, which get energised on or after 01.03.1991, to be extended the tariff concession. The petitioners had acted on the said representation, set up industries and commenced production after spending huge amounts and, thus, altered their position. Therefore, the Government of Pondicherry is bound by the principle of promissory estoppel, to extend the said benefits for the entire period, as assured, as held in Pawan Alloys case. Hence, the order, withdrawing concession before the expiry of the period, would amount to breach of promise. (b) Even though the Government of Pondicherry had a right to withdraw the scheme with effect from the date of the order, namely, 28.05.1997, the said order would be only a prospective effect, but, it cannot have a retrospective effect, so as to affect the rights of the petitioners, which had been accrued to the petitioners, namely, to avail tariff concession, assured by the earlier order, for the full period and the impugned order would apply only to industries, which are set up subsequent to the Government Order dated 28.05.1997 and not to the industries, which are set up and have commenced production earlier. https://hcservices.ecourts.gov.in/hcservices/ (c) Though it is the stand of the Government that the Government Order dated 28.05.1997 was issued in public interest, no materials have been placed by the Government to show that there is an overriding public interest, which would render inequitable for the Government to hold on to the promise. (d) The order passed by the First Bench in W.A.No.2081 of 1999, dated 14.01.2000, has not been correctly decided, as it has not followed the Pawan Alloys case, decided by the Supreme Court, which would squarely apply to the present case, as pointed out by the learned single Judge, who referred this matter for consideration by a Larger Bench. 4. In support of his submissions, learned Senior Counsel for the petitioners would cite the following decisions : (i) 1995 (1) SUPREME COURT CASES 274 (KASINKA TRADING AND ANOTHER v. UNION OF INDIA AND ANOTHER) ; (ii) 1995 SALES TAX CASE (SULOCHANA COTTON MILLS v. STATE OF TAMIL NADU) (iii) 1997 (3) SUPREME COURT CASES 398 (SHRIJEE SALES CORPORATION AND ANOTHER v. UNION OF INDIA) ; (iv) 1997 (7) SUPREME COURT CASES 251 (PAWAN ALLOYS & CASTING PVT. LTD., MEERUT, v. U.P.STATE ELECTRICITY BOARD AND OTHERS) ; (v) AIR 1998 SUPREME COURT 591 (SALES TAX OFFICER v. M/S.SHREE DURGA OIL MILLS); (vi) 1999 (4) SUPREME COURT CASES 357 (STATE OF RAJASTHAN v. MAHAVEER OIL INDUSTRIES AND OTHERS) ; (vii) AIR 2002 SUPREME COURT 322 (M/S.SHARMA TRANSPORT v. GOVERNMENT OF A.P. AND OTHERS); and (viii) 2003 (2) SUPREME COURT CASES 716 (HITECH ELECTROTHERMICS & HYDROPOWER LTD. v. STATE OF KERALA AND OTHERS) 5. In reply to the above points, the following https://hcservices.ecourts.gov.in/hcservices/ submissions have been made by Mr.K.K.Sasidharan, Additional Government Pleader, Pondicherry, and Mr.T.S.Sivagnanam, Senior Central Government Standing Counsel : (a) The G.O. impugned, dated 28.05.1997, contains various reasons, showing the existence of public interest. In the absence of any challenge to those reasons in the G.O.impugned and in the absence of any statement or materials placed by the petitioners to show that there is no public interest involved, it cannot be said that the decision rendered by the First Bench of this Court in W.A.No.2081 of 1999, dated 14.01.2000, is wrong, since it was based upon two judgments of the Supreme Court in Kasinka Trading v. Union of India (1995 (1) SCC 274) and Shrijee Sales Corporation v. Union of India (1997 (3) SCC 398). (b) The Pawan Alloys case considered the facts of that case and found that there was no public interest involved. Those facts would not apply to the facts of the present case. In Pawan Alloys case, there is total absence of any involvement of public interest and, in the case on hand, there is full and complete basis of public interest, which prompted withdrawal. The Government, issuing G.O., is also an authority to recall the G.O. It is settled law that the authority, which is empowered to grant something, is also having power to cancel the same. Section 21 of the General Clauses Act contemplates such an authority. (c) The judgment rendered by the First Bench dated 14.01.2000, negativing the doctrine of promissory estoppel, holding that there was sufficient public interest, which weighed the Government in withdrawing power subsidy, is perfectly correct and it does not require reconsideration. 6. To substantiate the above pleas, learned counsel for the respondents would cite the following authorities : (i) AIR 1976 SUPREME COURT 2237 (EXCISE COMMISSIONER v. RAMKUMAR) ; (ii) 1982 (1) SUPREME COURT CASES 39 (BISHAMBH DAYAL CHANDRAMOHAN v. STATE OF U.P.) ; (iii) 1995 (1) SUPREME COURT CASES 274 (KASINKA TRADING v. UNION OF INDIA) ; (iv) 1996 (5) SUPREME COURT CASES 268 (P.T.R.EXPORTS MADRAS (P) LTD. v. UNION OF INDIA) ; https://hcservices.ecourts.gov.in/hcservices/ (v) 1996 (5) SUPREME COURT CASES 468 (DCM LIMITED v. UNION OF INDIA) ; (vi) 1997 (3) SUPREME COURT CASES 398 (SHRIJEE SALES CORPORATION v. UNION OF INDIA) ; (vii) 1997 (7) SUPREME COURT CASES 251 (PAWAN ALLOYS AND CASTINGS v. U.P.STATE ELECTRICITY BOARD) ; (viii) 1998 (1) SUPREME COURT CASES 572 (SALES TAX OFFICER v. SRI DURGA OIL MILLS) ; (ix) 1999 (4) SUPREME COURT CASES 357 (STATE OF RAJASTHAN v. MAHAVEER OIL INDUSTRIES) ; (x) 1999 (7) SUPREME COURT CASES 314 (UNION OF INDIA v. INDIAN CHARGE CHROME) ; (xi) UNREPORTED JUDGMENT OF MADRAS HIGH COURT IN W.A.No.2081 OF 1999 (DB) (M/S.ISAS THERMO ALLOYS v. SECRETARY TO GOVERNMENT OF PONDICHERRY) ; (xii) 2002 (2) SUPREME COURT CASES 188 (SHARMA TRANSPORT v. GOVERNMENT OF A.P.) ; (xiii) 2002 (128) STC 554 (DB) (DHARANI SUGAR AND CHEMICALS LTD. v. COMMERCIAL TAX OFFICER). (xiv) 2003 (2) SUPREME COURT CASES 673 (ONKARLAL BAJAJ v. UNION OF INDIA) ; (xv) 2003 (5) SUPREME COURT CASES 437 (UNION OF INDIA v. INTERNATIONAL TRADING COMPANY) ; (xvi) JT 2004 (5) SUPREME COURT 231 (HIRA TIKOO v. UNION TERRITORY OF CHANDIRAGH AND ANOTHER) ; (xvii) 2005 (1) SUPREME COURT CASES 625 (BANNARI AMMAN SUGAR LTD. v. COMMERCIAL https://hcservices.ecourts.gov.in/hcservices/ TAX OFFICER) ; (xviii) 2005 (7) SUPREME COURT CASES 348 (ROOM INDUSTRIES LTD. v. STATE OF JAMMU & KASHMIR) ; (xix) 2005 (12) SUPREME COURT CASES 508 (BANGALORE DEVELOPMENT AUTHORITY v. HANUMAIAH) ; (xx) 2005 (6) SCALE 613 (BRIJPAL SHARMA v. GAZIABAD DEVELOPMENT AUTHORITY); and (xxi) 2006 (3) SCALE 178 (MAHABIR VEGETABLE OILS PVT. LTD. v. STATE OF HARYANA). 7. We have heard the learned counsel for the parties at length and given our meticulous consideration to the rival contentions, made on either side. 8. As pointed out by the counsel for the parties, it shall be remembered at the outset, that while dealing with the very same question relating to the validity of the order of withdrawal of subsidy scheme by the Government of Pondicherry in G.O.Rt.No.30 of 1997, Industries, dated 28.05.1997, the First Bench, by the order dated 14.01.2000 in W.A.No.2081 of 1999, upheld the said G.O., as valid. 9. According to Mr.Sasidharan, learned Additional Government Pleader, appearing for the respondents, namely, the Government of Pondicherry, the said order of the First Bench in W.A.No.2081 of 1999 was on the strength of the ratio decided by the Supreme Court in two cases in (i) Kasinka Trading v. Union of India (1995 (1) SCC 274) and (ii) Shrijee Sales Corporation v. Union of India (1997 (3) SCC 398) and, as such, the order of the First Bench, upholding the G.O. impugned, is justified. 10. According to Mr.Muthukumarasamy, learned Senior Counsel for the petitioners, the above two cases are distinguishable on facts. As a matter of fact, the Pawan Alloys case would squarely apply to the facts of the present case and the said case has dealt with the above two cases, distinguishing the same. But, the First Bench had no occasion to go through the Pawan Alloys case, which decided the very same issue, as it was not brought to the notice of the Division Bench at the time of final disposal and, as such, the conclusion arrived at by the First Bench, without following the Pawan Alloys case, is not correct and, therefore, it requires reconsideration. https://hcservices.ecourts.gov.in/hcservices/ 11. In the light of the above rival contentions, it would be better, at this stage, to refer to the reasonings given in the order of the First Bench, for upholding the G.O.impugned. The said reasonings are as follows : (i) The issue pertains to the claim for tariff concession under power subsidy scheme, which was introduced as a matter of policy and then later withdrawn by the Government, pursuant to its policy and the reasons contained in the order impugned. As regards the withdrawal of the scheme, it is not for this Court to adjudicate upon the reasons or the policy, behind the withdrawal of the scheme. (ii) In Sales Tax Officer v. M/s.Sri Durga Oil Mills (AIR 1998 SC 591), the Supreme Court held that withdrawal of tax exemption contrary to the industrial policy announced for a particular period cannot be questioned on the ground of plea of estoppel. In State of Rajasthan, v. Mahaveer Oil Industries (1999 (4) SCC 357), it was held that the doctrine of promissory estoppel could not preclude the Government from issuing such notification for withdrawal of tax exemption scheme, even during the currency of the exemption scheme. In the background of the rulings of the Supreme Court, if we see the order impugned, withdrawing the scheme, it is clear that it provides reasons for withdrawal in public interest. (iii) The main reason given for withdrawal of notification was that the Government considered the analysis of the power subsidy scheme, which revealed many inadequacies and shortcomings. Annually, the Union Territory was spending about Rs.5.00 crores on payment of power subsidy, which resulted in significant drain on the resources of the Union Territory and also, from the inception, the scheme helped only large/medium power intensive units. 12. The above reasonings would clearly indicate that the point urged on behalf of the counsel for the respondent State, regarding public interest, was accepted by the First Bench and it was not inclined to go into the merits of the https://hcservices.ecourts.gov.in/hcservices/ rival contentions on the factual aspects, in the light of the judgments of the Supreme Court, holding that withdrawal of the subsidy cannot be questioned in view of public interest. 13. Admittedly, Pawan Alloys case, which dealt with all the cases, including the judgments referred in the judgment of the First Bench, has not been taken into consideration by the First Bench. 14. Now, Mr.Muhukumarasamy, learned Senior Counsel for the petitioners, would submit that Pawan Alloys case is exactly on the point whereas the other decisions referred in the judgment of the First Bench and cited by the learned counsel for the respondents, would decide about some other aspects, on the basis of different factual situations. 15. At this juncture, it has to be noticed that the judgment of the First Bench was rendered by Justice K.P.Sivasubramaniam, on behalf of the Bench. Now, it is noticed that the very same Judge, namely, Justice K.P.Sivasubramaniam, while sitting as a single Judge, before whom the batch of Writ Petitions were posted for final disposal, felt a doubt about the correctness of his own judgment, rendered on behalf of the First Bench, and thought it fit to refer the matter to a Larger Bench, to decide the case, in the light of the principles laid down by the Supreme Court in Pawan Alloys case, by his order dated 29.10.2004. In this context, the gist of the observation of Justice K.P.Sivasubramaniam, learned single Judge, while referring the matter to a Larger Bench, would be quite relevant, which is as follows: "Learned Government Pleader contends that with reference to the very same impugned Government Order and the subsidy scheme, a Division Bench of this Court, in M/S.IZAS THERMO ALLOYS V. SECRETARY TO GOVERNMENT AND OTHERS (W.A.No.2081 of 1999 – Judgment dated 14.01.2000), has held that the withdrawal of subsidy scheme was on proper grounds of public interest and hence, industries cannot claim any vested interest by application of principle of promissory estoppel. However, the learned Senior Counsel on behalf of the petitioners, contends that in all the judgments relied on by the Government Pleader, the Courts have also taken note of the facts relating to the petitioners in those https://hcservices.ecourts.gov.in/hcservices/ cases and had held that on the facts of those cases, they will not be entitled to plead promissory estoppel, as those industries had commenced production only after the order of withdrawal and having regard to the observations contained in PAWAN ALLOYS case, the petitioner is entitled to invoke the principles of promissory estoppel. I find much force in the said contention of the learned Senior Counsel for the petitioner that the case of the appellant in W.A.No.2081 of 1999 is distinguishable on the facts though the judgment deals with the very same scheme. However, I feel that, on the legal issue, the Division Bench has specifically held in paragraph 12 of the judgment that even during the currency of the scheme, the Government can withdraw the exemption scheme. The said observation has been made generally without going into the question in depth. The attention of the Division Bench was not drawn to the judgment of the Supreme Court in PAWAN ALLOYS case. But, how far the observations of the Supreme Court in PAWAN ALLOYS case will have any relevance in the light of subsequent judgments of the Supreme Court or would have made any difference to the ultimate conclusions of the Division Bench in W.A.No.2081 of 1999 and whether on the facts of the case of the petitioners in these writ petitions, whether they would be entitled to succeed on the factual situation that they had been energised and commenced production even before the scheme was withdrawn, are all matters which could be decided by a Larger Bench. While on the very impugned proceedings and scheme, a Division Bench had upheld the withdrawal of the scheme, it may not be proper for a single Judge to express differently." So observing, the matter has been referred to a Larger Bench. 16. The above observation of the learned single Judge Justice K.P.Sivasubramaniam would clearly indicate https://hcservices.ecourts.gov.in/hcservices/ his view that the judgment rendered by the First Bench is not correct, as it had not taken into consideration the Pawan Alloys case, reported in 1997 (7) SUPREME COURT CASES 251, and if the First Bench had taken into consideration the said case, it would have taken a different view. In this context, it is to be reiterated that Justice K.P.Sivasubramaniam was the judge, who rendered the judgment on behalf of the First Bench, upholding the G.O., on the strength of the judgments of the Supreme Court, and the very same Judge, now, as a single Judge, while taking a different view, on the strength of Pawan Alloys case of the Supreme Court, has thought it fit to refer the matter to a Larger Bench. 17. Before this Full Bench, it is vehemently contended in support of the First Bench decision by Mr.Sasidharan, learned Additional Government Pleader for the respondents, namely, the Government of Pondicherry, that the concession for grant of electricity is a matter of policy of the Government and that it is open to the Government to withdraw the subsidy scheme on the ground of public interest, affecting the existing beneficiaries, and that the beneficiaries cannot plead promissory estoppel. 18. The learned Additional Government Pleader would further contend that Pawan Alloys case was decided by the Supreme Court in its factual situation, applying the law declared by the Supreme Court in the case of Shrijee Sales Corporation and the facts in the present case are neither similar nor identical to that of Pawan Alloys case. Therefore, Pawan Alloys case would not help the petitioners at all, to substantiate their plea and, as such, the said case cannot be relied upon, to decide the issue in question.