IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9906 of 2004 Amrapali Foods Limited, through its Managing Director, Krishna Prakash Singh Keshari, having its registered office at Ujjwal, 2nd Floor, Bailey Road, P.S.-Kotwali, District- Patna. Present R/o-East Boring Canal Road, P.S.-Budha Colony, District-Patna. ……… Petitioner. Versus 1. The State Of Bihar through Industrial Development Commissioner, Government of Bihar, New Secretariat, Patna. 2. The Director, Industries, Department of Industries, Government of Bihar, New Secretariat, Patna. 3. The Managing Director, Bihar Industrial Area Development Authority, Patna (formerly North Bihar Industrial Area Development Authority), Patna. 4. The Managing Director, Bihar State Financial Corporation, Frazer Road, Patna. … Respondents. For the petitioner : Mr. Pushkar Narain Shahi, Advocate. Mr. Ajay Kumar Sharma, Advocate. For the State : Mr. Manoj Kumar Sinha, AC to GA-I. For the BIADA : Mr. Kumar Priya Ranjan, Advocate. For the BSFC : Mr. Vinay Krishna Tripathi, Advocate. ----------- 12. 09.12.2010 1. Heard learned counsel for the petitioner, learned counsel for the State of Bihar, learned counsel for the Bihar Industrial Area Development Authority and learned counsel for Bihar State Financial Corporation. 2. This writ petition has been filed by the petitioner for direction to Respondent nos. 1 and 2 to release and disburse the amount of capital subsidy in favour of the petitioner in terms of Bihar Industrial Policy, 1986 (extended by Industrial Policies of 1990 & 1993) along with interest from the due date. Another relief has been added by I.A. No. 1477 of 2006 for quashing of resolution passed by the State Level Committee on 07.09.2000(Annexure-A to the counter affidavit of Respondent no. 2) rejecting the claim of the petitioner. 2 3. It is not in dispute that the petitioner is a limited company incorporated under the provisions of the Companies Act, 1956 and was registered with the North Bihar Industrial Area Development Authority (now Bihar Industrial Area Development Authority) as Small Scale Industrial Unit in the year 1989. It is also not in dispute that there are two main industrial policies namely Industrial Policy of 1986 and Industrial Policy of 1995. Industrial Policy of 1986 (Annexure-8) came into force on 01.09.1986 for five years and the same was extended till 31.3.1993 by Industrial Policy of 1993, whereas Industrial Policy of 1990 came into force on 21.2.1990 which extended the period of Industrial Policy, 1986 for five years i.e. up to February, 1995. Hence, it is quite apparent that the Industrial Policy of 1990 and Industrial Policy of 1993 were expansions of Industrial Policy of 1986 with exactly the same clauses. In the said Industrial Policies, there were specific provisions of disbursement of capital subsidies to the small scale industrial units. 4. Subsequently, on 01.09.1995 Industrial Policy of 1995 (Annexure-10) came into force for five years and in that Policy no provision was made for disbursement of capital subsidy to the small scale industrial units. However, from perusal of the Industrial Policy of 1995, it transpires that in Clause 11 thereof, it was specifically provided as follows: “ The Industrial Units which have come into commercial production on or after 01.09.1995, but had made substantial fixed capital investment prior to 01.09.1995, will have the option to avail of the package of incentives/assistance as provided in the 3 Industrial Incentive Policy, 1993 (provided the unit is eligible under that policy) or under this Industrial Policy. They will not be entitled to partial benefits from both these policies. The option must be given in writing to the Director of Industries or Director, Technical Development within 3 months of the date of notification of this policy in the Bihar Gazette.” 5. It is not in dispute that in 1991 the respondents granted time till 31.12.1997 to the petitioner to enhance its capacity to 542 metric tons in two phases and accordingly the expansion started on 25.04.1991 and first phase thereof was completed on 30.03.1993 whereafter the second phase of expansion started on 31.03.1993 and was completed on 31.12.1997 within the time prescribed. In the said circumstances, the petitioner has claimed that he was entitled to capital subsidy for both the aforesaid phases which amounted to Rs. 13,47,750/-, but the respondents have given Rs. 1,73,700/- and Rs. 3,77,250/- as capital subsidies only for the first phase, but the remaining amount of Rs. 7,96,800/- with regard to the second phase is still due which has to be paid by the respondents but they had rejected petitioner’s claim regarding it vide resolution dated 07.09.2000(Annexure-A to the counter affidavit). 6. Learned counsel for the Bihar State Financial Corporation submits that since the petitioner has liquidated the entire loan etc. taken from the Corporation, he has nothing to say in the instant matter, which is between the petitioner and the authorities of the State Government. 7. However, learned counsel for the State of Bihar as 4 well as learned counsel for Bihar Industrial Area Development Authority vehemently oppose the contentions of learned counsel for the petitioner and submits that the petitioner was entitled to capital subsidy only for the first phase of work done by him as it was completed within the period of the earlier Industrial Policies of 1986, 1990 and 1993 in which capital subsidy for small scale industrial units was provided and accordingly, the said amount had been paid to the petitioner. It is further averred that the second phase of work was completed by the petitioner on 31.12.1997 when the Industrial Policy of 1995 was in force in which capital subsidy was not provided and hence, the petitioner was not entitled to get the said capital subsidy. Hence, they averred that the impugned Resolution of the Committee dated 07.09.2000 (Annexure-A to the counter affidavit) of the State Government was legal and justified and there was no occasion for any interference. They also argued that the petitioner cannot be legally allowed to avail the benefits of both the Industrial Policies of 1986 & 1995 and they have to be restricted to one policy. 8. Considering the averments of learned counsel for the parties as well as the materials on record, it is not in dispute that Industrial Policy, 1986 which was extended from time to time by Industrial Policies of 1990 and 1993 contained the provisions of capital subsidy to small scale industrial units and the said Policy continued at least till February, 1995, whereas the Industrial Policy 1995 came into force from September, 1995 for five years in which the provision of capital subsidy for small scale industrial units was 5 not provided. 9. So far as the first phase of expansion, which started by the petitioner on 25.04.1991 and was completed by 30.03.1993 is concerned, it is not in dispute that for the said phase capital subsidy was to be paid in view of the provisions of Industrial Policies of 1986, 1990 and 1993 and hence the same was paid. The dispute is only with respect to the second phase of expansion by the petitioner which was started on 31.03.1993 and was completed on 31.12.1997. 10. From the aforesaid admitted facts, it is quite apparent that the second phase for expansion was started on 31.03.1993 when the Industrial Policy, 1986 extended by Industrial Policies, 1990 and 1993, was in force and the said expansion was completed on 31.12.1997 when the Industrial Policy of 1995 had come into force. For such a situation the Government had very careful made a provision in Clause 11 of the Industrial Policy of 1995 in which it was specifically provided that partial benefits cannot be given and it is for the industrial unit to have the option to avail the package of incentives/assistance as provided in the Industrial Incentive Policy of 1993 or in the Industrial Policy of 1995. In the instant case the petitioner has specifically claimed that he has never claimed or was given any incentives/assistance as provided in the Industrial Policy of 1995, rather he had always been satisfied with the incentives/assistance as provided in the Industrial Incentive Policy of 1993. 11. Furthermore, when the process of expansion was started in the year 1991 substantial fixed capital investment had 6 been made by the petitioner for the work, which continued in two phases out of which the second phase started when the earlier industrial policy was in force and the petitioner’s unit through out worked as per Industrial Policy of 1986 extended by Industrial Policies of 1990 and 1993. Hence, there was no occasion for the authorities to assume that the petitioner will be governed by the Industrial Policy of 1995 merely because the second phase was completed after Industrial Policy of 1995 had come in force. 12. In the said circumstances, this writ petition is allowed. The resolution of the Committee of Respondent State of Bihar dated 07.09.2000 (Annexure-A to the counter affidavit of Respondent no. 2) is hereby quashed and Respondent nos. 1 to 3 are directed to release and disburse the amount of capital subsidy in favour of the petitioner in terms of Bihar Industrial Policy of 1986, which was extended by Industrial Policy of 1990 and Industrial Policy of 1993 with interest at the rate of 5% per annum from the date the said amount had fallen due till the date the amount is paid. It may be noted that the petitioner’s unit shall not be entitled to any benefit under the Industrial Policy of 1995. Sujit (S.N.Hussain,J.)