1 wp-7461-10 mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, CIVIL JURISDICTION WRIT PETITION NO. 7461 OF 2010 Excell Krushi Prakriya Private Ltd. & Anr..Petitioners Vs. The State of Maharashtra & Ors. ..Respondents Mr. M.L. Patil, for the Petitioners. Mr. C.R. Sonawane, AGP for the Respondents. CORAM: B. H. MARLAPALLE & A.A. SAYED, JJ. DATE: 24th September, 2010. P.C. 1. Heard Mr.Patil, the learned Counsel for the petitioners. Mr. Sonawane, learned AGP appears for the respondents. 2. Rule. Respondents waive service. Affidavit in reply by the Joint Secretary, Home Department, Government of Maharashtra has been filed before us. The petition is heard finally. 2 wp-7461-10 3. In this petition filed under Article 226 of the Constitution the petitioners are praying for a writ of mandamus directing the respondents to issue the Letter of Intent in favour of petitioner No.1 company, under the Maharashtra Distillation of Spirit and Manufacture of Potable Liquor Rules, 1966. The petitioner No.1 is a Private Limited company incorporated under the Companies Act, 1956 with its registered office at Pandharpur. The State of Maharashtra issued a G.R. On 8th June, 2007 declaring a policy/scheme known as ” Grain based Alcohol and Integrated Product Financial Assistant-2007” and in response thereto the petitioner No.1 Company submitted an application for Letter of Intent on 4th December, 2008 to the Commissioner of Prohibition and Excise, State of Maharashtra. The petitioners received the consent from the Maharashtra Pollution Control Board on 13th August, 2009 and I.E.M. by Central Government on 30th December, 2008. It also received the Environmental Clearance by Government of India on 4th February, 2010 and registration with the Central Excise on 8th October, 2009. The petitioners claim to have entered into an agreement with Northern Indian Alcobru System, Wapi for construction of the building and supply of machinery on turn key basis and the contract amount is about Rs.20.00 crores. The Punjab National Bank has sanctioned to the petitioners loan of Rs.19.50 crores on 26th February, 3 wp-7461-10 2009 and the entire amount has been disbursed for the building construction. The petitioners further claim that by now they have invested about Rs.27.39 crores for the proposed factory. On 5th August, 2009 the Commissioner of Prohibition, Government of Maharashtra scrutinized the petitioners application for Letter of Intent and recommended the same to the State Government and in turn the Secretary in the Department of Prohibition by his letter dated 8th August, 2009 has recommended the petitioners case for grant of Letter of Intent to the Government of India. However, on 20th August, 2009 the Council of Ministers decided not to grant any Letter of Intent and consequently the State Government issued the G.R. on 31st August, 2009. The petitioners are aggrieved by the said G.R., in which it has been set out that the projects/factories which could not be completed and established before 31st December, 2009, such establishments could not be entitled to the scheme under which the petitioners are seeking the Letter of Intent so as to start manufacturing of spirit/alcohol from grains. 4. As per the petitioners on the basis of the policy formulated and pronounced by the State Government substantial investments have already been made and all the concerned statutory authorities have either granted or 4 wp-7461-10 recommended the case of the petitioner No.1 to the Competent Authorities for such clearances/licenses and, therefore, the decision taken by the Government and reflected in the impugned G.R. dated 31st August, 2009 is arbitrary, unjust and the legitimate expectations of the petitioners have been thus denied/negatived illegally. 5. In the affidavit in reply filed on behalf of the respondents the facts pertaining to the progress made by the petitioners in setting up of the new factory of the petitioner No.1 company have not been denied. It has been admitted that the proposal submitted by the petitioners was approved by the Government on 19th August, 2009, but the Letter of Intent was not issued on or before 20th August, 2009 and on that count the G.R. dated 31st August, 2009 issued pursuant to the decision taken by the State Government would not entitle the petitioner factory for Letter of Intent. It has been admitted in the said affidavit that the following 3 proposed factories have been granted Letter of Intent on the respective dates mentioned as follows:- 5 wp-7461-10 Sr.No. Name of proposer/applicant Date of proposal received from Commissione r (Excise) Date of submission for approval to Govt. Date of Government sanction. Date of Govt. Order. Date of Commissione r (Excise order) 1. Rajlaxmi 10-8-2009 11-8-2009 13-8-2009 13-8-2009 20-8-2009 2. Oasis Alcohol Ltd. 20-8-2009 20-8-2009 20-8-2009 20-8-2009 - - - - - - - - 20-8-2009 3. G.N. Agrotech 6-8-2009 7-8-2009 7-8-2009 12-8-2009 - - - - - - - - 21-8-2009 From the above statement as set out in para.7 of the affidavit in reply it is clear that M/s.Oasis Alcohol Ltd., submitted the proposal to the Government of Maharashtra on 20th August, 2009 and the Letter of Intent came to be issued in its favour on the very same day. Similarly, for M/s.G.N. Agrotech the Letter of Intent has been issued on 21st August, 2009. On our query on instructions it was submitted by the learned A.G.P., that in all there were 24 proposals received by the State Government for granting Letter of Intent to start the units for manufacture of spirit/alcohol and 23 of them have been issued the Letter of Intent. The last Letter of Intent has been issued on 21st August, 2009 and the petitioner’s was the only case where despite the fact that the Commissioner for Prohibition 6 wp-7461-10 processed the petitioner’s application on 19th August, 2099 it could not be granted Letter of Intend in spite of the sanction by the Government on 19th August, 2009 on account of the impugned G.R. We do not find any justification in this reasoning when it is apparent from the record that on 20th August, 2009 M/s.Oasis Alcohol Ltd., has been granted the Letter of Intent and M/s.G.N. Agrotech has been granted Letter of Intent on 21st August, 2009. Thus the denial of Letter of Intent to the petitioner on the basis of the impugned G.R. is arbitrary and the equals are being treated as unequals. There is no other justification that is furnished in the affidavit in reply filed on behalf of the respondents so as to deny the Letter of Intent to the petitioner. It is also clear from the record that the petitioner No.1 company has not sought any financial assistance from the State Government to set up the factory. The petitioners are, therefore, justified in invoking the doctrine of legitimate expectations, having already invested an amount of Rs.27.39 crores till now. 6. Hence this petition must succeed and the same is hereby allowed. Rule is made absolute in terms of prayer clause (b), but without any order as to costs. (A.A. SAYED, J.) (B. H. MARLAPALLE, J.)