ORDER
Inder Sen Israni, J.
1. All the writ petitions mentioned above raised same question of law, hence they are decided by one order.
2. Through these writ petitions, the petitioners have challenged the legality and validity of Notification dated March 3, 1982 (Annexure-A) issued by respondent No. 1, by which, remission/reduction of electricity duties granted by earlier notification including March 26, 1980 (Annexure-D) have been withdrawn.
3. Briefly stated that the facts as mentioned in W.P. No. 942/83 respondent No. 1 issued a notification dated March 26, 1980 remitting the electricity duty of energy consumed in manufacture of production/processing of goods in Rajasthan by any industry commissioned/expanded between April 1, .1979 and March 31, 1984 subject to certain conditions mentioned therein. Petitioner-industries as required by Annexure-D applied to respondent No. 3 for grant of remission certificate. However, the remission certificate was not granted in view of subsequent notification dated March 3, 1982 (Annexure-A) wherein it was stated that in supersession of all the previous notifications including/ modifying the rates and granting exemption, remission, reductions, concessions has fixed the rate of electricity duty as given in the Schedule below. At serial No. 1 for industries it was fixed at 6 paisa per unit, which is the maximum rate under Section 3 of the Rajasthan Electricity (Duty) Act, 1962 (for brevity 'the Act, 1962'), which can be charged. It has been asserted in the petitions that petitioners are entitled to remission of electricity duly for a period of 5 years from the date of com-missioning various plants established by the petitioners.
4. Tt is contended by Shri R. P. Bhatt, Shri L.L. Sharma. Shri S. M. Mehta, and Shri Paras Kuhad learned counsel that respondent No. 1 is now seeking to go back upon its assurance given by notification Annexure-D, by which, the remission of electricity duty was granted, is arbitrary, illegal and against the principles of promissory estoppel as the subsequent notification Annexure A seeks to revoke/withdraw and fixes electricity duty at the rate of 6 paisa per unit of the electricity consumed by the petitioner-companies. It is submitted that respondent No. 1 had given an unequivocal assurance through the notification Annexure-D as well as through its letter dated April 18, 1980 (Annexure-E) giving out that petitioner would be entitled to exemption from payment of electricity duty for a period of 5 years from the date of commissioning of the plant. The petitioner-companies acting and relying on these assurances and promise established its factory at District Alwar by investing large amount and has suffered as a result thereof. It is further contended that the said notification Annexure A in any event cannot apply with retrospective effect or affect vested rights already accrued including the remission of electricity duty granted to the petitioners. It is pointed out that Annexure-D was issued with a view to induce the new industries to be set up in the State. Thus the said promise of remission of electricity charges for 5 years was intended to create a legal relationship to arise in furture. The said promise and assurance was repeated and reiterated by letter Annexure E. The petitioners in Petition No. 92/83 have set up their industry at the cost of Rs. 29 crores, 56 lacs, 30 thousand 682/- and the petitioner-company has financial commitments to the extent of Rs. 32 crores as per Annexure-H statement showing the details of the expenditure incurred by the petitioner, up to March 31,1983 which is duly certified by statutory auditors. Annexure I gives details of the project cost of the petitioner-company. It is submitted that the petitioners were earlier setting up their factory and plant for caustic soda at Bhatinda in State of Punjab. However, on account ofinducement held out by respondent No. 1 vide Annexure-D, have preferred to establish the industry at Alwar in Rajathan. It is also submitted that all the factories established by the petitioners have been commissioned before March 31, 1984.
5. Shri G. S. Bapna, and Shri K. K. Sharma, learned counsel appearing for respondents, submitted that in the return filed in W.P. No. 942/83 it has been clearly mentioned that there is no material on record to show that by virtue of Annexure-D investment made by petitioner No. 2 have been impaired or that investment was made on account of Annexure-D. It is contended that the State Government in exercise of its delegated legislative power under Section 3(3) of the Act, 1962 issued in the public interest Annexure-D. It is pointed out that the same was superseded with Annexure-A looking to the accute financial position and severe draught condition in the State of Rajasthan and that the State Government is fully authorised to do so. It is also submitted that Annexure-E is not a letter but a certificate which had referred to the existence of exemption notification Annexure-D. It is contended that Annexure-D has been superseded by Annexure-A. The petitioner-industry was commissioned on 31st March, 1982, whereas notification Annexure-A superseding Annexure-D was issued on March 3, 1982. It is also contended that petitioners have not made any investment prior to March 3, 1982. Therefore, petitioners are not entitled to any remission of electricity duty. It is also contended that no promise was made by the respondents, but only statutory exemption had been granted. This has been subsequently withdrawn hence, there is no question of resiling, from any promise. Since no assurance was given by any executive, the doctrine of promissory estoppel is not applicable in case of the petitioners. It is also contended that no factual foundation has been laid which is necessary to invoke application of doctrine of promissory estoppel. Moreover this doctrine cannot be applied where the power is exercised in the public interest.
6. I have heard both the parties and gone through the documents on record.
7. To resolve the controversy, it will be necessary to examine the sequence of events that has taken place. Respondent No. 1 issued notification Annexure-D on March 26, 1980 remitting the electricity duty on the electricity consumed in the manufacture/production/ processing of goods in Rajasthan in any industry commissioned between April 1, 1979 and March 31, 1984 subject to certain conditions mentioned therein, for a period of 5 years from the date of commissioning of the new industry. Respondent No. 1 vide Annexure-E dated April 18, 1980 certified regarding the caustic soda project to be established at Alwar that exemption of electricity duty as per Annexure-D will be available to the petitioner. Various other concessions/facilities like exemption of octroi, exemption of sales-tax on machinery, grant of rebate etc. were also mentioned therein. The petitioner in W.P. No. 942/83 as mentioned in paragraph 2(g) of the petition that thereafter during period 1980-82 it entered into firm commitments that various financial institutions for grant of term loan amounting to Rs. 17.15 crores and incurred commitments/charges in respect of the same. On March 5, 1981 (Annexure-K) petitioner received certificate under the provisions of the Companies Act, 1956. On March 27, 1981 petitioner entered into lease agreement with Rajasthan State and Mineral Development Corporation Ltd. whereby petitioner acquired land measuring 3,38,958.75 sq. mts. in Alwar for setting up its caustic soda plant. Letter of possession vide dated March 27, 1981 was issued and the possession of the land was also handed over to the petitioner. Annexure-L dated November 19, 1981 is letter from Central Government to the petitioner enclosing the order passed under Section 22(3)(d) of the MRTP Act approving the revised scheme of finance in respect of the proposal for establishment of the caustic soda in State of Rajasthan. On January 7, 1982 as mentioned in para 2(g)(vi) petitioner entered into power agreement with respondent No. 2 for supply of 24,000 KVA power. Petitioner opened a firm irrevocable letter of Credit on February 27, 1982 as mentioned in paragraph 2(g)(viii) of the rejoinder in favour of foreignsupply. This letter of credit was issued by the Industrial Finance Corporation of India. On this letter, the petitioner placed orders on the foreign supplier for import of capital goods. Annexure-N filed with rejoinder is a statement showing the expenses made till February 28, 1982 and the various contracts entered into by petitioner for supply for plant and machinery and for civil constructions in respect of the Caustic Soda Plant. Till the date of rejoinder the expenses of civil constructions as mentioned in para 2(g)(vii) of rejoinder amounted to Rs. 1.23 crores. Annexure-O filed with rejoinder gives details regarding further expenses of establishment on the plant amounting to Rs. 6.12 crores.
8. From the sequence of events mentioned above, it can be said that various steps have been taken by the petitioner as well as by the other petitioners themselves to establish their industries soon after the notification Annexure-D was issued. It can be said that industries established on large-scale take few years time to be established and commissioned. Industries of such large scale as established by various petitions cannot be established within few months as is evident from the details given above. Therefore, it cannot be said that merely because the industries were commissioned after issuance of notification Annexure-A and because the application for exemption/remission of electricity was applied after the issuance of Annexure-A, therefore, petitioners are not entitled to the benefit as allowed Annexure D. In several petitions, no return has been filed on behalf of the respondents. Therefore, in such all the petitions, in which no return has been filed it does not He in the mouth of the respondents to raise the objections that no factual foundation has been laid to show that the petitioners actually made investments in view of Annexure-D. No return is filed and no affidavit is available to controvert the assertions made by various petitioners, the statements made by such petitioners have not been controverted and there is no reason why reliance cannot be placed on the same, more so in view of the various documents filed in each of the petitions. The contention of the learned counsel for the respondents that nopromise was made by the respondents by way of issuing Annexure-D, but only statutory exemption, which was granted was withdrawn vide Annexure-A has no force. The exemption is always granted under statutory powers and such grant of remission/exemption/reduction in rate of electricity duty is made only with a view to induce establishment of certain industries for the Industrial Advancement of the State. While issuing Annexure-D, evidently the respondents wanted to industrialise Rajasthan by inducing of new industries, which can perhaps be possible only by giving such concessions on account of which the industrialist may prefer to establish their industries in State of Rajasthan rather than anywhere else in the country. Therefore, it cannot be said that by issuing Annexure-D no inducement was given for establishment of new industry or no promise was made/extended by the respondents to the petitioners.
9. It is submitted by Shri G. S. Bapna and Shri K. K. Sharma, learned counsel for the respondents that the doctrine of promissory estoppel is not applicable since the notification has been issued in exercise of delegated legislative power and not in executive power. It is submitted that under Article 245 of the Constitution of India Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State. Article 246 item No. 53 List 2 in the 7th Schedule authorises the State Government to impose taxes on consumption or sale of electricity. It is submitted that under provisions of Section 3 of the Act, 1962, if the State Government is of opinion that it is necessary or expedient in the public interest to do so, it may by notification in the Official Gazette and on such terms and conditions/restrictions reduce or remit the electricity duty on the energy consumed in any industry in manufacture, production, processing or repair of goods. It is submitted that the notification Annexures-D and A have been issued by the State Government in exercising of delegated legislative power and not executive power. It was pointed out that in Shri Sita Ram Sugar Company Ltd. v. Union of India, 1990 (3) SCC 223 : (AIR 1990 SC 1277) it washeld by the Apex Court while dealing with matter of Essential Commodities Act, 1965 and fixation of price of leavy sugar for sugar industry by publication of a general order in Official Gazette, which is later placed before both the Houses of Parliament is a legislative action. In Narender Chand Hem Raj v. Lt. Governor, Administrator, Union Territory H. P., AIR 1971 SC 2399 : 1971 Tax LR 1734, it was held by the Apex Court that power to impose tax being a legislative power can be exercised either by legislature directly or by its delegate. But no Court can issue a mandate to a legislative or a subordinate legislative body to enact or not to enact a law which it was competent to enact. It was further observed that the levy of tax can only be done by the authority of law and not by any executive. It is further submitted by learned counsel that the ratio of judgment of the Apex Court in Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh, AIR 1979 SC 62 : 1979 All LJ 368, has not been correctly applied by Division Bench of this Court while deciding the petition of Union of India v. J. K. Industries Ltd., 1989 (2) RLW 386.
10. A Division Bench of this Court in matter of U.O.I, v. J.K. Industries Ltd. (supra) has clearly held that the Government while discharging its legislative function is bound by the promissory estoppel. Only in very exceptional cases the Govt. can wriggle out. What is material is that the party must have acted upon the assurance so as to alter its position. Therefore, the Government cannot unilaterally revoke the benefits which have been granted by it. While laying down this proposition of law reliance was placed on judgment of M/s. Motilal Padampat Sugar Mills Co. Ltd. (supra). Their Lordships of Supreme Court while clarifying the meaning of promissory estoppel held that 'the true principle of promissory estoppel seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or effect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made, and it is in fact soacted upon the promise would be binding on the party making it, and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealing which have taken place between the parties, and this would be so irrespective of whether there is any preexisting relationship between the parties or not. The doctrine of promissory estoppel need not be inhibited by the same limitation as estoppel in the strict sense of the terms. It is an equitable principle evolved by the Courts for doing justice and there is no reason why it should be given only a limited application by way of defence. There is no reason in logic or principle why promissory estoppel should also not be available as a cause of action, if necessary to satisfy the equity. It is not necessary, in order to attract the applicability of the doctrine of promissory estoppel, that the promisee, acting in reliance on the promise should suffer any detriment. What is necessary is only that the promisee should have altered his position in reliance on the promise. The Apex Court, as is evident, has not made any distinction between the exercise of executive power or delegated legislative power by the Government. It has only explained the meaning of promissory estoppel. The Division Bench of this Court has correctly followed the ratio of the decision of the Apex Court mentioned above and I do not find any force in the contention of the learned counsel for the respondent that the doctrine of promissory estoppel is applicable only to exercise of executive power by the State. It is also contended by the learned counsel for the respondents that the Annexure-D was superseded by Annexure-A because of accute financial decision and severe draught conditions in the State of Rajasthan. It is submitted that on this account the respondents were entitled to withdraw the exemption vide Annexure-A which was issued in exercise of power in the public interest. It may be pointed out that in Vasantkumar Radhakisan Vora v. The Board of Trustees of the Port of Bombay, 1990 JT (3) (SC) 609 while discussing the doctrine of promissory estoppel it was held by their Lordships of the Supreme Court that the doctrine of promissory estoppel being anequitable doctrine, it must yield place to the equity, if large public interest so requires, and if it can be shown by the Government or public authority for having regard to the facts as they have transpired that it would be inequitable to hold the Government or public authority to the promise or representation made by it. The Court on satisfaction would not in those circumstances raise the equity in favour of the persons to whom a promise or representation is made and enforce the promise or representation against Government or the public authority. It is well settled legal proposition that the private interest would always yield place to the public. If the respondents contended that Annexure-A was issued keeping in view accute financial position and severe draught condition in the State of Rajasthan, it was only necessary that this contention should have been supported with documentary evidence to substantiate the same. This Court cannot place reliance on two line assertion made by respondents in this respect. If there was any accute financial position, it was for the respondents to produce the necessary material in their possession to show to this Court the necessity to raise fund to tide over the difficult financial conditions. Similarly, if there was severe draught in the State of Rajasthan, it was necessary to have mentioned, in which area/areas there were draught conditions and what was the financial burden which the State had to bear on this account. No such material has been placed on record to substantiate this assertion and even the area/areas of the draught conditions have not been mentioned. Therefore, it can be said that there is only a bald assertion, for which no factual foundation has been made. There is no doubt that if any factual foundation had been laid and it way shown to this Court that the State was passing through the accute financial distress or the Government is not in position to bear the financial burden on account of severe draught conditions the matter could have been considered in that light by this Court. I am, therefore, of the considered opinion that the plea of financial distress and draught conditions cannot be used by the respondents to avoid the liability of doctrine of promissoryestoppel, which was created by respondents by issuing Annexure-D, since no proper and adequate material has been placed by the Government which may show to the Court that overriding public interest requires that the Government should not be held bound by the promise but should be free to act unfettered by it.
11. It is further contended by the learned counsel for the respondents that no factual foundation has been laid by each of the petitioner to show that on account of issuance of Annexure-D by which remission of electricity duty on consumption of electricity was allowed for a period of 5 years, any investment has been made by the petitioners, who have filed the writ petitions and they have thus altered their possession (position). It may be pointed out that in several writ petitions even return has not been filed, except W.P. No. 942/83 and W.P. No. 1312/82 on behalf of the respondents, to deny the assertions made by the petitioners in each of the petitions regarding making huge investment after inducement of remission of tax was given by issuing Annexure-D. In each of the petitions several documents have been filed in support of investment made to avail all the benefits available under Annexurc-D. Reply filed in W.P. No. 942/83 so far as legal aspect is concerned has been read in all the petitioners as desired on behalf of the respondents. If the respondents disputed the factual allegations made by the petitioners in various writ petitions regarding making investment after issue of Annexure-D, it was only necessary for the respondents to have denied the same specifically and brought out necessary facts to disprove the same. I have gone through each of the petition and it can be said that each petitioner has clearly asserted regarding making huge investment in view of remission of tax allowed by Annexure-D. I do not want to point out details of investment given in each of the petitions, to avoid burdening this judgment any more. These assertions regarding investment have been supported by the affidavit and documents in each of the petitions. Therefore, there is no reason to disbelieve the same. I, therefore, do not find any force in this contention of the respondents.
12. In the result the writ petitions are allowed and impugned notification dated March 3, 1982 (Annexure-A) is quashed and the petitioners will be entitled to receive the remission of electricity duty/tax as per conditions laid down in Annexure-D dated March 26, 1980. It was given out during the course of arguments that the petitioners as directed by this Court have deposited certain amounts towards the electricity duty. Such amounts as deposited by each of the petitioner shall be returned to each of the petitioner within a period of three months. I do not find any force in prayer made on behalf of the petitioners that they may be allowed interest at the rate of 12% per annum on the amounts deposited with the respondents. This prayer is, therefore, rejected.
13. The writ petitions are allowed as above, with no order as to costs.