mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO.1381 of 1996 1.Hans Industries, having its ) factory at B/16, Sinnar Taluka ) Co-op. Ind. Estate, Sinnar, Dist. ) Nasik ) 2.M/s.Tristar Industries ) having its factory and office ) at B/52, Sinnar Taluka ) Co-op. Ind. Estate, Sinar, Dist. ) Nasik ) 3.M/s.Shraddha Corrubox Pvt. Ltd., ) having its office and ) factory at B/6, Sinnar Taluka ) Co-op. Ind. Estate, Sinnar,Dist. ) Nasik ) 4.M/s.B.A. Plastic Industries ) having its factory at 93/1, ) M.I.D.C.Satpur, Dist.Nasik. ) 5.M/s.Rahul Packaging, ) having its factory at Plot No.C/ ) 69, Sinnar Taluka Co-op. Ind. ) Estate, Sinnar, Dist. Nasik ) 6.M/s.Shetkari Plastics Pvt. Ltd., ) having its factory at C/10/12 ) N.I.C.E. A Road, Satpur, Dist. ) Nasik ) 7.M/s.Vijaya Polythene Bags, ) having its factory at B/2,Sinnar ) Taluka Co-op.Ind.Estate, Sinnar, ) Dist.Nasik )..Petitioners Vs. 1.Western Maharashtra Development ) Corporation, a Government of ) Maharashtra Undertaking, having ) its head office at Pune. ) 2.Commissioner of Sales Tax, ) Maharashtra State having his ) office at Vikrikar Bhavan, ) Bombay-400 010. ) 3.State of Maharashtra having ) its office at Mantralaya, Bombay ) -400 037. )..Respondents Mr.Praful C. Joshi for the Petitioners. Mr.V.A.Sonpal,Special Counsel for the respondent Nos.2 & 3. CORAM : FERDINO I. REBELLO & D.G. KARNIK, JJ. DATED : 25th SEPTEMBER , 2009 ORAL JUDGMENT (PER FERDINO I. REBELLO, J.): The petitioners established Small Scale Industrial Units in a backward area, pursuant to the incentive scheme for industries floated by the State of Maharashtra to set up industries in backward areas and known as Package Scheme of Incentive 1979. In terms of the package scheme the petitioners fell in an area which was notified as Group D Area. In terms of the said Scheme as the petitioners had set up an industrial unit in D Area they were entitled to benefit of nine years in terms of the Scheme. 2. An Ordinance came to be issued being Ordinance No.8 of 1995 which was promulgated on 8th June, 1995 whereby Section 41C was introduced in the Bombay Sales Tax Act. By this amendment Section 41-C (1)(a) was introduced for the first time. It provided that a certificate of entitlement issued in favour of an eligible unit in respect of a package scheme of incentive shall cease on the happening of the event as set out therein. Monetary ceiling was provided in terms of the relevant package scheme. The Ordinance was replaced by Act No.12 of 1995 by identical language. The State of Maharashtra thereafter enacted Act 16 of 1995. By virtue of this Act Clause (A) of sub-section (1) was substituted in Section 41-C apart from other amendments. By this amendment for the first time the Legislature introduced the following words:- “being a Small Scale industrial unit governed by the 1979 Package Scheme of Incentives exceeds, on or after the date of commencement of Maharashtra Tax Laws (Levy and Amendment) Act, 1995, the approved gross fixed capital investment of such Unit at the time of grant of the Eligibility Certificate, or” The petitioners were earlier not aggrieved by Ordinance 6 of 1995 or Act 12 of 1995 as according to the petitioners the Package Scheme of 1979 was not the subject matter of that Legislation. 3. The petitioners, however, were aggrieved by Act 16 of 1995 as for the first time a limit was imposed in terms of gross capacity investment in the Package Scheme of 1979 though the package Scheme as earlier framed did not provide for any such limitation, but only provided the number of years under which the petitioners unit would be entitled to the benefit of Package Scheme 1979. In view of that the petitioners had filed the present petition. 4. Before answering the issue we may also point out that subsequent to the Act 16 of 1995 the Legislature of State of Maharashtra by Maharashtra Act 19 of 1996 with retrospective effect from 1st October, 1995 amended Section 41C as substituted by Maharashtra Act 16 of 1995. By the amendment to Section 41-C(1)(a) the following words were dropped:- “exceeds, on or after the date of commencement of Maharashtra Tax Laws (Levy and Amendment) Act, 1995” and substituted the following words:- “as calculated from 1st October, 1995 exceeds”. The petitioners have not challenged this subsequent amendment though it is retrospective with effect from 1st October, 1995. It is needless to point out that the effect of substitution means repeal followed by re- enactment. 5. At the hearing of this petition on behalf of the petitioner learned Counsel submits that the Maharashtra Act 16 of 1995 is both unreasonable and contrary to the doctrine of promissory estoppel and on this count the provision impugned should be declared to be unconstitutional. Learned Counsel also draws our attention to the judgment of the Apex Court in the case of Mahabir Vegetable Oils Pvt. Ltd. & Anr. vs. State of Haryana & Ors., 145 (2006) STC 350. Learned Counsel drawn our attention to the following paragraph:- “It is beyond any cavil that the doctrine of promissory estoppel operates even in the legislative field. Whereas in England the development and growth of promissory estoppel can be traced from Central London Property Trust Ltd. v. High Trees House Ltd., (1947) 1 KB 130, in India the same can be traced from the decision of this Court in Collector of Bombay v. Municipal Corporation of the City of Bombay AIR 1951 SC 469. In that case the Government made a grant of land (which did not fulfil requisite statutory formalities) rent free. It, however, claimed rent after 70 years. The Government, it was opined, could not do so as they were estopped. It was further held therein that there was no overriding public interest which would make it inequitable to enforce estopel against the State as it was well within the power of the State to grant such exemption.” 6. It is also submitted that considering the fact that other persons who had availed of the benefit of the 1979 Package were given the benefit for the entire period of years a party like the petitioners is being denied the same because of the subsequent legislation. That also amounts to hostile, discrimination and unreasonable and on that count also the provisions impugned should be declared to be unconstitutional. 7. To consider the challenge firstly we must consider the provisions as it stand. As pointed out earlier Act 16 of 1995 in so far as it pertained to petitioners was substituted Act 21 of 1996. Act 21 of 1996 is not the subject matter of the present petition. The entitlement certificate issued to the petitioners is for the period from 1st April, 1989 to 31st March, 1998. The amendment of 1996 covers the period when Act 16 of 1995 was in operation. In other words for all purposes what is in force from 1st October, 1995 is the Section as substituted by Act 21 of 1996. That is not the subject matter of the present challenge before us. It is not the case of the petitioners that in terms of Act 21 of 1996 they are entitled to the benefit of the Scheme. In the instant case we are concerned with the Section as it stands from 1st October, 1995 as amended by Act 21 of 1996. That is not the subject matter of challenge before us. In the light of that the main challenge to the petition both on the ground of promissory estoppel and unreasonableness or discrimination cannot be entertained. 8. Considering the above, Rule discharged. In the circumstances of the case there shall be no order as to costs. We, however, make it clear that if the petitioners are entitled to challenge Act 21 of 1996 the disposal of this Petition will not stand in their way and that will have to be considered independently. (D.G. KARNIK,J.) (F.I. REBELLO,J.)