STATE OF BIHAR & ORS. v. KALYANPUR CEMENTS LTD

Citation: [2010] 1 S.C.R. 928

Court: Supreme Court of India

Bench: TARUN CHATTERJEE, S.S. NIJJAR

Case summary

STATE OF BIHAR & ORS. v. KALYANPUR CEMENTS LTD.pdf

Judgment text

[2010] 1 S. C. R. 928 STATE OF BIHAR & ORS. v. KALYANPUR CEMENTS LTD. (Civil Appeal No. 5181 of 2002) JANUARY 8, 201. 0 [TARUN CHATTERJEE AND SURINDER SINGH NIJJAR JJ. ] Industrial Policy, 1995 - Clauses 22(2)(i) and 24 - Sales tax exemption - Sick company . :...

Assistance to the company for restructuring agreed by financial institutions, on the condition that it obtained sales tax exemption from State Government - Repeated assurance by State Government to issue sales tax exemption Notification - Writ petition seeking direction to issue the Notification - State first informed the High court that it would issue Notification after approval of proposal of Notification - Later informed the Court that State has decided not to grant sales tax incentives to sick companies - High Court quashed the decision of the State and directed it to issue the Notification - On appeal, Supreme Court by interim order directing the company to deposit an amount equivalent to sales tax payable by it in a Bank - The amount to be payable to the party which ultimately succeeded - State issuing the Notification - Failure of company to deposit the amount taking the plea that it was sick - Held: Denial of sales tax exemption is arbitrary - The State initially having given repeated assurances, was estopped from denying the grant of exemption at later stage - Company rightly invoked the doctrine of promissory estoppel - State cannot take advantage of its own lapses in implementing the Industrial Policy for denying the claim of the company - The decision making process culminating into orders denying grant of exemption is seriously flawed - However, the company, in view of its financial condition, cannot be permitted .

. LTD_ to retain the amount collected from the customer on sale of its product - This would amount to unjust enrichment - Direction to release the amount deposited by the company pursuant to interim order of Supreme Court, to the State - Doctrine of Promissory estoppel - Unjust Enrichment. Administrative Law - Doctrine of promissory estoppel lnvokabi/ity of - Discussed. Taxation - exemption of tax and refund of tax - Difference between. Words and Phrases - 'Sick unit' - Meaning of, in the context of Industrial Policy, 1995. Respondent-Company was declared as a sick unit, by the Board for Industrial and Financial Reconstruction. 0 The company, in order to rehabilitate itself sought assistance from financial institutions for restructuring package.

The proposal for financial assistance and restructuring was approved by various financial institutions subject to the condition that the company obtained a sales tax exemption for a period of 5 years from the State Government, in terms of Industrial Policy, 1995. The company applied for grant of sales tax exemption. Thereafter the matter remained pending for consideration by the State Government and financial institutions. In various meetings of the State, the Company and the financial institutions, categoric assurances were given by the State that necessary sales tax exemption Notification would be issued. However, no such Notification was issued. The company filed a writ petition seeking direction to the State to issue necessary Notification. The State stated that it would be possible to issue the Notification after approval of proposal of Notification by the Chief (Finance) Minister. Thereafter the State informed the Court that the State by order dated 6. 1.

2001 had decided not to grant any sales tax incentives to sick industrial units, and therefore the claim of the company was rejected. The company, therefore, amended the petition, challenging the decision dated 6. 1. 2001. The State in its further affidavit stated that the decision of the State was later considered by the Cabinet on 5. 3. 2001 and it was decided not to issue any Notification. High Court allowed the writ petition quashing the decisions dated 6. 1. 2001 and 5. 3. 2001. The Court directed the State to issue follow up Notification to give effect to the provisions of the Policy. Hence the present appeal. Supreme Court by an interim order dated 18. 11. 2002 directed the respondent-company to deposit an amount equivalent to the sales tax payable by it as and when it became due, in an interest bearing account of a Bank; and that the amount so kept would be payable to the party which ultimately succeeded. £ The State filed IA No.

3 of 2006, seeking stay of the judgment of High Court. It was stated in the application that the State issued the Notification in pursuance of order dated 18. 11. 2002, granting exemption for five years or till disposal of SLP. The respondent-company, however, informed the State that it was unable to comply with the directions because of its sickness. As the company failed to comply with the directions, prayer was made to recall the same. Dismissing the appeal, and allowing the application, the Court HELD: 1. 1. In order to invoke the doctrine of promissory estoppel, it must be established that (a) a party must make an unequivocal promise or LTD.

representation by word or conduct to the other party (b) the representation was intended to create legal relations or affect the legal rel~tionship, to arise in the future (c) a clear foundation has to be laid in the petition, with supporting documents (d) it has to be shown that the party invoking the doctrine has altered its position relying on the promise (e) it is possible for the Government to resile from its promise when public interest would be prejudiced if the Government were required to carry out the promise (f) the Court will not apply the doctrine in abstract [Para 26) [956-B-E] 1. 2. From the facts of the case, it is apparent that the State Government had been consistently giving assurances not only to the company but also to the financial institutions that the necessary sales tax exemption Notification will be issued. The company had laid a clear, sound and a positive foundation for invoking the doctrine of 'promissory estoppel'.

The company as well as the financial institutions were entitled to rely upon the repeated assurances given by the State Gov. ernment. [Paras 56 and 59) [969-C-D; 971-C] 1. 3. Having made the statement before the High Court that it would be possible to issue necessary Notification after approval of the proposal by the Chief (Finance) Minister, the Government has resiled from the unequivocal representations in the decisions dated 06. 01. 2001 and 05. 03. 2001. Therefore, strong reliance was placed on clauses 22 and 24 of the Industrial Policy, 1995 and the doctrine of 'promissory estoppel' in support of the plea that the action of the State Government in issuing orders· dated 06. 01. 2001 and 05. 03. 2001 are wholly arbitrary and unjust. [Para 61) [972-A-B] 1. 4.

The conclusion reached by the High Court that when the State Government gives an assurance and undertaking, in form of a policy then in fact it allures person/ industries to enter into the individual ventures, invest money on the assurances contained in the policy, it would not be justified on the part of the State Government to say later on that on a second thought they were withdrawing the policy and the benefits flowing from that policy, is based on due consideration of the material placed before it. There is no reason to differ with the opinion expressed by the High Court. [Paras 62 and 63] [972-D-F; G) Mangalore Chemical and Fertilizer Ltd. vs. Deputy Commissioner of Commercial Taxes and Ors. (1992) Suppl. 1 SCC 21; State of Punjab vs. Nestle India Ltd. and Anr. (2004) 6 SCC 465; Southern Petrochemical Industries Co. Ltd. vs. Electricity Inspector and ETIO and Ors. (2007) 5 SCC 447; MRF Ltd. Kottayam vs. Asstt. Commissioner (Assessment) Sa/es Tax and Ors.

(2006) 8 SCC 702; Motilal Padampat Sugar Mills Co. Ltd. vs. State of UP (1979) 2 SCC 409, relied on. Kasinka Trading vs. Union of India (1995) 1 SCC 274; STO vs. Shree Durga Oil Mills (1998) 1 SCC 572; Baku/ Cashew Co. vs. STO (1986) 2 SCC 365; Sharma Transport VS. Govt. of A. P. (2002) 2 sec 188; Shri Baku/ Oil Industries vs. State of Gujarat (1987) 1 SCC; Motilal Padampat Sugar Mills Co. Ltd. vs. State of UP (1979) 2 SCC 409; DCM Ltd. vs. Union of India (1996) 5 SCC 468; Shrijee Sa/es Corpn. vs. Union of India (1997) 3 SCC 398; Pf! wan Alloys and Castings (P) Ltd. UPSEB (1997) 7 SCC 251; Bannari Amma Sugars Ltd. VS. Commercial Tax Officer (2005) 1 sec 625; Rom Industries Ltd. vs. State of J & K (2005) 7 SCC 348; State of Jharkhand VS. Ambay Cements (2005) 1 sec 368; M. P. Mathur vs. OTC (2006) 13 SCC 706; Excise Commissioner vs. Ram Kumar (1976) 3 SCC 540, referred to. Central London Property Trust, Ltd. vs. High Trees House, Ltd. (1956) 1 All ER 256, referred to. LTD.

'Statutory Interpretation' by Francis Bennion 1984 edn. 683, referred to. 2. 1. h1 the present case, the claim of the Government is based on a change in policy advocated in the Chief Ministers' Conference. These Conferences have taken 8 place before the affidavit is filed on 05. 12. 2001. Therefore, the High Court concluded that the Government has not been candid in disclosure of the reasons for passing the order dated 06. 01. 2001. The aforesaid decisions with regard to the discontinuance of the sales tax exemptions from 01. 01. 2000 could not have affected the rights of the company under the Industrial Policy, 1995. Necessary application was made to the Government seeking exemption on 21. 11. 1997. For more than 3 years, the Company and the financial institutions h3d been assured by the Government that the Notification will be issued forthwith. However, it was not issued. The action of the · appellants is arbitrary and indefensible. [Para 68) [981-A- E] 2. 2.

A perusal of the aforesaid policy clearly shows that the Government was determined to take effective measures to render all possible assistance for amelioration of the continuing problem of industrial sickness in the State. It was viewed as a matter of great concern for the Government. Clause 22(2) deals with sickness in large and medium sectors. Under clause 22(2)(i) of Industrial Policy, 1995 a Committee headed by the Industrial Development Commissioner, was to recommend concessions and facilities which were considered necessary for revival of the-potentially viable non-BIFR sick industrial units. The Company was, therefore, eligible under Clause 22(2)(ii). The Industrial Policy, 1995 did not envisage sickness in its strict terms . as defined under the Sick Industrial Companies (Special Provisions) Act, 1985. The policy was of a wider application and included industrial sickness not only qua A BIFR companies but also in relation to non-BIFR potentially viable sick companies.

[Para 70) (984-F-H; 985- A-B] 2. 3. The definition of 'sick unit' in Clause 6 of annexure to the Policy, makes it abundantly clear that the 8 sickness of the company (SLEC) could also be decided by the State Level empowered Committee headed by the Chief Secretary. The exemption claim of the company was duly considered by the Committee constituted under C Clause 22(2)(i). Its recommendations were duly placed before the SLEC under Clause 22(2)(ii). The recommendations were not implemented only because the Government failed to issue a Notification under Clause 24 of the Industrial Policy, 1995 within the stipulated period of one month. Even if it is accepted that D the provisions contained in Clause 24 was mandatory, the time of one month for issuing the Notification could only have been extended for a reasonable period. It is inconceivable that it could have taken the Government 3 years to issue the follow up Notification.

The failure of the E appellants to issue the necessary Notification within a reasonable period of the enforcement of the Industrial Policy, 1995 has rendered the decisions dated 06. 01. 2001 and 05. 03. 2001 wholly arbitrary. The appellant cannot be permitted to rely on its own lapses in implementing its F policy to defeat the just and valid claim of the company. [Para 71) (985-E-H; 986-A) 2. 4. It is not correct to say that no relief can be granted to the Company as the Policy has lapsed on G 31. 08. 2000. Accepting such a plea would be to put a premium and accord a justification to the wholly arbitrary action of the appellant, in not issuing the Notification in accordance with the provisions contained in Clause 24 of the Industrial Policy, 1995. [Para 72) [986-8-C] H LTD. 2. 5. The assurances given in various meetings were reiterated before the High Court in the Affidavit dated 05. 12. 2000. It was clearly stated that the draft Notification was being prepared and being approved.

It was thus obvious that the Notification merely had to be published in the Official Gazette. After making the aforesaid statements in the affidavit, order dated 06. 01. 2001 was issued. It was no longer open to the appellant not to issue the Notification on the ground that the Policy had lapsed on 31. 08. 2000. The second reason that the exemption could not be granted to the company as no Notification had been issued under Clause 24 cannot be accepted as the appellant-State'cannot be permitted to take advantage of its own wrong. The third reason given is that the State-Level Empowered Committee (SLEC) had not approved the rehabilitation package. This clearly is 0 against the record. Not only the exemption was recommended by the competent Committees under the Industrial Policy, 1995, emphatic assurances were given that the Notification will be issued within a very short period.

The fourth reason with regard to the resolution passed at the Chief Ministers' Conference is equally extraneous to the issue. The company had made the application for exemption at a much prior time in 1997. No material has been placed either before the High Court or before this Court about the legal enforceability of the resolutions passed at the Chief Ministers' Conference. The decision making process which culminated in passing of the orders dated 06. 01. 2001 and 05. 03. 2001 is seriously flawed, therefore, the same have been justifiably quashed by the High Court. [Para 73) [986-E- H; 987-A-C] State of UP and Anr. vs. Dinakar Sinha (2007) 10 SCC 548; Mis. Ve/ji Lakhamsi and Co. and Ors. vs. Mis. Benett Coleman and Co. and Ors. (1977) 3 SCC 160; District Mining A Officer and Ors. vs. Tata Iron and Steel Co. and Anr. (2001) 7 sec 358, referred to. 3. 1.

It would not be possible to accept the plea of the company that in view of the financial condition of the company, it may be permitted to retain the amount 8 collected under the orders of Supreme Court. The amount was collected from the consumer to offset the tax liability. Such amount cannot be permitted to be retained by the company. Exemption and refund of tax are two different legal and distinct concepts. The objective of the C exemption is to grant incentive to encourage industrialization. It is to enable the industry to compete in the market. On the other hand, refund of tax is made only when it has been realized illegally or contrary to the provisions of law. Tax lawfully levied and realized cannot D be refunded. [Para 79] [989-E-G] 3. 2. The company has collected more than Rs. 60 crores on the sale of cement by virtue of the directions issued by Supreme Court in the Order dated 18. 11. 2002. E The company cannot be permitted to retain the amount collected from the customers.

This would amount unjust enrichment. Therefore, a direction is required to be issued that the amount deposited by the company with the Bank pursuant to the orders of this Court, be released F to the appellant-State. Even if the delay in issuance of the exemption Notification by the State has crippled the company financially, ~hen the company is trying to revive itself through financial restructuring. The survival of the company now depends on the approval of the Financial Restructuring Package prepared by respondent No. 2. G This package has been submitted to the Chief Minister of Bihar which is still on the consideration of the Government. [Para 78] [988-G-H; 989-A-D] 3. 3. Direction is, therefore, issued that the amount H deposited by the company in the designated account LTD. opened and operated pursuant to the order of this Court dated 18. 11. 2002 together with accrued interest shall be released to the appellant-State, forthwith. (Para 80) (989- H; 990-A) Prestige Lights Ltd. vs.

StateBank of India (2007) 8 SCC 449; Amrit Banaspati Co. Ltd and Anr. vs. State of Punjab (1992) 2 sec 411, referred to. Case Law Reference: (1956) 1 All ER 256 Referred to. Para 24 (1995) 1 sec 214 Referred to. Para 25 (1998) 1 sec 572 Referred to. Para 27 (1986) 2 sec 365_ Referred to. Para 28 (2002) 2 sec 188 Referred to. Para 29 (1987) 1 sec 31 Referred to. Para 30 (1996). 5 sec 468 Referred to. Para 33 (1997) 3 sec 398 Referred to. Para 36 (1997) 1 sec 251 Referred to. Para 35 (~005) 1 sec 625 Referred to. Para 37 (2005) 1 sec 348 Referred to. Para 38 (2005) 1 sec 368 Referred to. Para 42 2006) 13 sec 706 Referred to. Para 44 (1976) 3 sec 540 Referred to. Para 45 (2001) 8 sec 449 Referred to. Para 46 (1992) 2 sec 411 Referred to. Para 47 (2001) 1o sec 548 Referred to. Para 48 (1977) 3 sec 160 Referred to. Para 49 (2001) 1 sec 358 Referred to. Para 50 (1992) Suppl. 1 sec 21 Relied on. Para 64 (2004) 6 sec 465 Relied on. Para 64 (2007) 5 sec 447 Relied on.

Para 66 (2006) 8 sec 102 Relied on. Para 67 (1979) 2 sec 409 Relied on. Para 68 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5181 of 2002. From the Judgment & Order . dated 24. 4. 2002 of the High Court of Judicature at Patna in C. W. J. C. No. 6838 of 2000. Dr. Rajiv Dhawan, Dii:iesh Dwivedi, Mohit Kumar Shah, Gopal Singh, Ravi Bhushan, Pallavi Mohan for the Appellants. Ravi Shankar Prasad, Ranjit Kumar (for Suresh A. Shroof & Co. ), Suprarna, Srivastava, Rajiv Ranjan, Sudershini Ray, Ram Swarup Sharma for the Respondent. The Judgment of the Court was delivered by SURINDER SINGH NIJJAR, J. 1. This appeal has been filed by the State of Bihar challenging the judgment and order dated 24. 04. 2002 of the High Court of Judicature at Patna in CWJC No. 6838 of 2000, whereby, the High Court has allowed the writ petition filed by the respondent herein. The respondent - M/s. Kalyanpur Cement Ltd.

(hereinafter referred to as 'the Company'), is a public sector company incorporated in the year 1937 as a Lime-producing Company. It is engaged in the business of cement manufacturing and marketing operations since 1946. It had commenced production with a capacity of 46000 metric tonnes. It underwent a series of expansion in 1958, 1968 and 1980. Nowadays, the Company is operating one-million-tonne cement plant. In view of the changes in the technology worl~wide, it has set up a brand new state-of-art 'dry process' plant in 1994 at a capital cost of Rs. 250-260 crores. This was made possible with financial assistance of World Bank and the All India Financial Institutions. Its advisor and financial collaborator is Holder Bank (HOLCIM) at Switzerland. The ·Company claims to be one of the very few large scale surviving industrial units in the State of Bihar. It is the only large scale industry in central part of the State. Over 2000 persons are in the employment of the Company.

The Company claims that due to circumstances beyond its control such as recession in the cement industry as well as Government related problems; delayed decision in granting Sales Tax Deferment benefit the Company began to suffer heavy losses. This was accentuated by the non-availability of the sanctioned working capital from the financial institutions in the absence of the sale tax exemption under the Industrial Policy, 1995. There was continuous loss in 0 production for a number of years. This has resulted in erosion of Net-Worth of the Company, as the total Net-Worth of the Company was less than its accumulated losses in December, 2002, it has registered with Board for Industrial and Financial Reconstruction (hereinafter referred to as 'BIFR') as a sick unit. It has been actually declared as sick Company by BIFR on 28. 05. 2002. Its reference case is pending with the BIFR.

The Company in order to rehabilitate itself sought the assistance from financial institutions for restructuring package. The Company's proposal for financial assistance and restructuring has been approved by'various financial institutions, in principal. However, the same has been made conditional on certain preconditions being met. One of the conditions imposed by the financial institutions was that the restructuring package would be made available only on the Company obtaining a Sales Tax exemption for a period of 5 years from the State Government, in terms of Industrial Policy, 1995. Accordingly, Company submitted an application to the State Government on 21. 11. 1997 for grant of Sales Tax exemption under the Industrial Policy, 1995 for a period of 5 years w. e. f. 01. 01. 1998. Thereafter, the matter remained pending for consideration by the State Government and the financial institutions.

There were a series of joint meetings of the Government, Financial Institutions and the Company, over the next three years. In all these meetings, as well as correspondence categoric assurances were given that the necessary Sales Tax exemption notification would be issued shortly. However, no such notification was issued causing great hardship to the Company. It was, therefore, constrained to file writ petition (CWJC No. 6838 of 2000) in the High Court at Patna. 2. In this writ petition, the prayer was for issuance of the writ in the nature of mandamus directing the State of Bihar to issue necessary Notification under Clause 24 of the 1995 Policy. The claim of the Company was that Notification under Clause 24 of the Industrial Policy, 1995 ought to have been issued within one month of the release/publication of the Policy in September, 1995.

Voluminous record was produced before the High Court in support of the submission that the Company is entitled to exemption under the 1995 Policy. The State of Bihar contested the writ petition by filing a counter affidavit. Supplementary counter affidavit was filed on behalf of the Government through Secretary-cum-Commissioner, Department of Commercial Taxes (respondent No. 4 in the writ petition) on 05. 12. 2000. In paragraph 5 of the aforesaid affidavit it is stated as under:- "5. That the Hon'ble Minister, Department of Commercial Taxes has approved the proposal along with draft. notification regarding extension of Sales Tax related incentives to sick industrial units. " · 3. In paragraph 8 of the affidavit it is averred UThat the deponent states that it shall be possible to issue necessary notification after approval of the proposal of the relevant notification by the Hon'ble Chief (Finance) Minister of the Cabinet.

" It is also stated in the affidavit "That the deponent has further requested the Secretary-cum-Commissioner, STATE OF BIHAR & ORS. v. KALYANPUR CEMENTS94L Department of Finance, vide Jette; dated 28. 11. 2000 to take necessary approval earliest as the same has to inform to the Hon'ble Court. "Thereafter. yet another supplementary counter affidavit dated 09. 01. 2001 was filed by Shri Krishan Nand Roy, Assistant Commissioner. Commercial Taxes, Bihar. In the affidavit, it was contended that the State Government in meeting under the Chairmanship of the Chief Minister held on 06. 01. 2001 has decided upon due deliberation not to grant any Sa,les Tax incentives to sick industrial units. Therefore, the claim of the Company has been rejected. The four stated reasons justifying the aforesaid decision were as under:- "(1) The period of Industrial Policy 1995 was from 1. 9. 1995 to 31. 8. 2000. Therefore, this policy is not · effeCtive to date.

(2) The question to provide facility to those sick units are mentioned in clause 22 of the above policy. No notification has been issued by the Government to provide facility of Sales Tax till now, on whose basis, there could be right of any specialized person/unit to get the facility. (3) So far as the question of applicants' Unit in petition No. CWJC No. 6838/2000 is concerned, his matter has not yet been approved by the High Level Empowered Committee under the Chairmanship of Chief Secretary under Clause 22(1) of Industrial Policy, 1995. It is worth mentioning here that in absence of above mentioned, even approval cannot be provided. (4) Tax reforms at All India Level, which has been continuing last one year it has been decided at the conference of Chief Ministers that except States of Special Category Sales Tax facility must be ended by rest all other States. The States would not do this, there could be possibility of cut down the payable Central Assistance to those States. " ~ 4.

Therefore, the Company amended the writ petition and challenged the decision dated 06. 01. 2001 of the State Government. It was pleaded by the Company that the grounds for rejection of the Company's case and non-issuance of the Notification was not in accordance with law It appears that another counter affidavit was filed on 16. 02. 2001 by respondent No. 4. This was followed by yet another supplementary counter affidavit filed by Virendra Kumar Singh, Joint Commissioner, Commercial Taxes, Headquarter, Patna on 02. 08. 2001. In this affidavit it was brought to the notice of the Court that the decision taken on 06. 01. 2001 was considered by the Cabinet in its meeting held on 05. 03. 2001 wherein it was decided not to issue any notification for granting any concession/facility to sick industrial units in the State. This decision was duly conveyed by letter dated 05. 03. 2001 to the IDC Bihar, Patna.

In view of the aforesaid decision the Secretary Industries 0 Department rejected the company's application and communicated the decision to the Company on 14. 05. 2001. Both the decisions were sought to be justified by the State Government. 5. The High Court considered the entire issue. The Company as well as the State made detailed reference to the documents which were placed on the record. Ultimately, the writ petition has been allowed. The decisions dated 06. 01. 2001 and 05. 03. 2001 have been quashed. Further directions issued to the State Government are as follows; "The concerned departments and organizations are hereby directed to issue follow up notification to give effect to the provisions of the policy within one month from today.

After the notification is issued a Committee headed by the Industrial Development Commissioner would be constituted to evolve suitable measures for potentially viable non BIFR sick industrial unit (the present petitioner) and the said Committee would submit its recommendations before the State Level Empowered ; LTD. [SURINDER SINGH NIJJAR, J. ] Committee which in its turn shall place the said recommendations before the Government. After receiving the said recommendations from the State Level Empowered Committee, the Government shall take final decision in the matter. The petition is thus allowed. " . 6. This decision has been challenged by the appellant- State. 7. At this stage it would be appropriate to notice the orders passed by this Court during the proceedings. On 18. 11,2002, following directions were issued:- "Heard learned counsel for the parties.

As an interim arrangement during the pendency of this appeal, with a view to protect the interests of either 0 side, we direct the respondent to deposit an amount equivalent to the sale tax payable by it as and when it' · becomes due in an interest bearing account in nationalized bank. This amount and the amount accrued during the pendency of the appeal, shall not be withdrawn by either side. The amount so kept in deposit shall become payable to the party which ultimately succeeds in this appeal. The appellants are directed to issue the exemption orders and on receipt of such order, the above said amount shall be deposited. The issuance of the exemption orders is without prejudice to the case of the parties in this appeal. The IA is thus disposed of. " 8: Thereafter IA No. 3 of 2006 was filed by the appellant seeking stay of the judgment of the High Court, it has.

been stated that the application has been necessitated because of the intervening circumstances and the conduct of the Company. It was further stated that pursuant to the direction issued by this Court on 18. 11. 2002, the appellant issued Notification No. S0- 174 dated 18. 10. 2004 granting exemption to the Company. The Notification was to have effect for five years from the date of publication in the Official Gazette or till the disposal of the Special Leave Petition. The Notification was issued on the following terms:- "2. Terms and conditions- (a) Tax payable by Mis Kalyanpur Cement Ltd. shall be deposited per month in an interest-bearing account in a nationalized bank. (b) M/s Kalyanpur Cement Ltd. shall provide information of such bank account to the circle where he is registered. (c) Mis Kalyanpur Cement Ltd. shall submit the details regarding amount of payment in the bank account as mentioned in para (a) above along with brief abstract each month. 9.

Thereafter the appellant requested the company to comply with the directions of this court. The Company, however, informed the appellant that it was unable to comply with the directions because of its 'sickness'. Since the Company failed to comply with the aforesaid order, a prayer was made for recalling the same. 10. The Company in its reply elaborately explained the efforts being made by the financial institutions to ensure the survival of the Company. It reiterated that the Company had acted honestly and in good faith on assurances/approval given by the appellant at various stages. The Company continued with its operation in anticipation of receiving the appellant's approval at some point of time. Had the appellant not given the assurances, the Company could have suspended its operation. The Government gave assurances and granted approval on 07. 01. 1998, 23. 01. 1998, 12. 03. 1998, 21. 01. 1999, 12. 07. 1999, 29. 10. 1999, 02. 12. 1999, 17. 12. 1999, 25. 01. 2000, 31. 03. 2000, 29.

05. 2000 and 30. 06. 2000. It was also pointed out that even the officers of the Commercial Taxes Department including Commissioner, Commercial Taxes to the effect that the Notification was in the process of being issued. It was also pointed out that even after the VAT regime being introduced, Sales Tax related incentives to industries are being given to industries by various States. In fact under the Industrial Policy 2003 as well as the Industrial Policy, 2006, Sales Tax incentives in some form or the other have been retained/provided. It is further pointed out that the Notification dated 18. 10. 2004 was issued after expiry of two years from the date of the order passed by this Court. The delayed action of the Appellant practically crippled the Company financially and jeopardized efforts for revival as the Sales Tax benefit is crucial for the Company's revival and continued operations.

It is reiterated that the Company is entitled to get the benefit under the Industrial Policy, 1995. With regard to the non-deposit of the "amount equivalent to the Sales Tax payable by it as and when it becomes due~ it is stated that the Company had bona fide opened the Bank account with a Nationalized Bank but could not deposit the amount equivalent to the Sales Tax due because · of circumstances beyond its control. 11. During the pendency of the Interim Application, proposal for the approval of the recon~truction package of the Company was under the active consideration of the State. Therefore, the proceedings were adjourned from time to ti[11e. 12. During this period an application was also filed by the Assets Reconstruction Company (I) Ltd. for being impleaded as a party. The aforesaid application has been allowed by this Court on 04. 09. 2006 and the applicant has been impleaded as respondent No. 2. 13. We have heard the Counsel for the parties. Dr. Rajiv Dhawan and Mr.

Dinesh Dwivedi, Senior Advocates made the submissions on behalf of the appellant. Dr. Dhawan submits A that in the aforesaid judgment the High Court has held that: i. the petitioner had a right to be granted sales tax exemption under 1995 Industrial Policy; ii the decision of 6 January 2001 denying such B exemption was arbitrary (which was challenged but alleged not to be on record); iii. the decision of 5 March 2001 was wrong, even though not on record and not challenged. c 14. According to Dr. Dhawan the High Court has wrongly quashed the order dated 06. 01. 2001 on the basis that it was an arbitrary somersault after 05. 12. 2000. This conclusion is erroneous as the aforesaid order had given four cogent reasons in support of the decisions which have been duly D noticed by the High Court. The aforesaid reasons could not be said to be extraneous to the decision dated 06. 01. 2001.

Thereafter, it is submitted that the relevant rule/clauses 22 and 24 were wrongly interpreted because it stated "Clause 22. 2 of the policy would come into force after a notification under E Clause 24 is issued. "The High Court has wrongly held that the precondition of revival under Clause 22 came into effect after the final decision under Clause 24. According to the learned senior counsel the High Court failed to notice that clause 22. 2 was about revival of the Company and not just granting Sales F · Tax exemptions. Furthermore, Clause 22. 3 barred exemption/ deferment to be given to such sick and closed industrial units which have once availed of such facilities in the past. This Company has availed the deferment in the past and had not paid the sums due. It is then emphasized that Clause 24 was G a monitoring Clause, but the time period of one month was simply a target. Therefore, it was neither mandatory nor directory. 15.

Learned Senior counsel then submitted that the High H Court has wrongly base ORTS (2010] 1 S. C. R. A recognised as a legitimate defence in equity was held to found a cause of action against the Government, even when, and this needs to be emphasised, the representation sought to be enforced was legally invalid in the sense that it was made in a manner which was not in conformity with B the procedure prescribed by statute. " "26. This principle was built upon in Union of India v. Anglo Afghan Agencies where it was said (SCR at p. 385): (AIR p 728, para 23) C "23. Under our jurisprudence the Government is not exempt from liability to carry out the representation made by it as to . its future conduct and it cannot on some undefined and undisclosed ground of necessity or expediency fail to carry out the promise solemnly made by D it, nor claim to be the judge of its own obligation to the citizen on an ex parte appraisement of the circumstances in which the obligation has arisen.

" xxxx xxxx xxxx xxxx E "44. Of course, the Government cannot rely on arepresentation made without complying with the procedure. prescribed by the relevant statute, but a citizen may and• can compel the Government to do so if the factors• necessary for founding a plea of promissory estoppel arei F established. Such a proposition would not "fall foul of ouri constitutional scheme and public interest". On the othen hand, as was observed in Motilal Padampat Sugar Millsi case and approved in the subsequent decisions: (SCC p. 442; para 24) G "It is indeed the pride of constitutional democracy anc rule of law that the Government stands on the same footin~ as a private individual so far as the obligation of the la11 is concerned: the former is equally bound as the latter. 11 is indeed difficult to see on what principle can H t Government, committed to the rule of law, claim immunity from the doctrine of promissory estoppel. " · "46............

The facts in the present case are similar to those prevailing in Godfrey Philips. There too, as we have noted earlier, the statutory provisions required exemption to be granted by notification. Nevertheless, the Court having found that the essential prerequisites for the operation of promissory estoppel had been established, directed the issuance of the exemption notification. " 66. In Petrochemical (supra), this Court has clearly reiterated the promissory estoppel would apply where a p;:irty alters his position pursuant to or in furtherance of the promise made by a State. It is also clearly held that such a policy decision can be expressed in notifications under statutory provisions or even by executive instructions. Whenever the ingredients for invoking the principle of promissory estoppal are established, it could give rise to a cause of action. Not only may it give rise to a cause of action but would also preserve a right. The relevant observations are as under:- "121.

The doctrine of promissory estoppel would undoubtedly be applicable where an entrepreneur alters his position pursuant to or in furtherance of the promise made by a State to grant inter alia exemption from payment of taxes or charges on the basis of the current tariff. Such a policy decision on the part of the State shall not only be expressed by reason of notifications issued under the statutory provisions but also under the executive instructions. The appellants had undoubtedly been enjoying the benefit of (sic exemption from) payment of tax in respect of sale/consumption of electrical energy in relation to the cogenerating power plants. " "122. Unlike an ordinary estoppel, promissory estoppel gives rise to a cause of action. It indisputably creates a right. It also acts on equity. However, its - ' application against constitutional or statutory provisions is impermissible in law. " "130. We, therefore, are of the opinion that doctrine of promissory estoppal also preserves a right.

A right would be preserved when it is not expressly taken away but in fact has expressly been preserved. " 67. This Court in MRF Ltd. Kottayam (supra) considered the legality of a notification withdrawing the exemption granted by an earlier notification. Relying on the representations contained in the earlier notification, MRF had altered its position. Whilst setting aside the subsequent notification withdrawing the exemptions, this Court held that the whole actions of the State including exercise of executive power has to be tested on the touchstone of Article 14 of the Constitution of India. It was held that the action of the State must be fair. In this context we may notice the observations made in paragraph 38 and 39 of the judgment:- "38. The principle underlying legitimate expectation which is based on Article 14 and the rule of fairness has been restated by this Court in Bannari Amman Sugars 1 Ltd. v. CT02 • It was observed in paras 8 and 9: (SCC pp. 633-34) "8.

A person may have a 'legitimate expectation' of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice. The doctrine of legitimate expectation has an important place in the developing law of judicial review. It is, however, not necessary to explore the doctrine in this case, it is enough merely to note that a legitimate expectation can provide a sufficient interest to enable one who cannot point to the existence of a substantive right to obtain the leave of the court to apply for judicial review.

It is generally agreed that 'legitimate expectation' gives the applicant sufficient locus standi for judicial review and that the doctrine of legitimate expectation to be confined mostly to right of a fair hearing before a decision which results in negativing a promise or withdrawing an undertaking is · taken. The doctrine does not give scope to claim relief straightaway from the administrative authorities as no crystallised right as such is involved. The protection of such legitimate expectation does not require the fulfilment of the expectation where an overriding public interest requires otherwise. In other words, where a person's legitimate expectation is not fulfilled by taking a particular decision then the decision-maker should justify the denial of such expectation by showing some overriding public interest. (See Union of India v. Hindustan Development Corpn) 9.

While the discretion to change the policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for discernible reasons, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualised than precisely defined.

A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness. " (emphasis supplied)" "39. MRF made a huge investment in the State of Kerala under a promise held to it that it would be granted exemption from payment of sales tax for a period of seven years........ "....... The action of the State cannot be permitted to operate if it is arbitrary or unreasonable. This Court in E. P. Royappa v. State of T. N observed that where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14.

Equity that arises in favour of a party as a result of a representation made by the State is founded on the basic concept of "justice and fair play". The attempt to take away the said benefit of exemption with effect from 15-1-1998 and thereby deprive MRF of the benefit of exemption for more than 5 years out of a total period of 7 years, in our opinion, is highly arbitrary, unjust and unreasonable and deserves to be quashed. " 68. We are also unable to accept the submission with the decisions dated 06. 01. 2001 and 05. 03. 2001 had been taken due to the change in the national policy. This was sought to be justified by Dr. Dhawan on the basis of the Conferences of Chief Ministers/Finance Ministers. It is settled law as noticed by Bhagwati, J in Motila/ Padampat (supra) that the Government cannot, claim to be exempt from liability to carry out the promise, on some indefinite and undisclosed ground of necessity or expediency.

The Government is required to place before the Court the entire material on account of which it claims to be exempt from liability. Thereafter, it would be for the Court to decide whether those facts and circumstances are such. as to render it inequitable to enforce the liability against the Government. Mere claim of change of policy would not be sufficient to exonerate the Government from liability. It is only A when the Court is satisfied that the Court would decline to enforce the promise against the Government. However, the burden would be upon the Government to show that it would be inequitable to hold the Government bound by the promise. The Court would insist a highly rigorous standard of proof in B the discharge of this burden. In the present case, the claim of the Government is based on a change in policy advocated in the Chief Ministers' Conference. These Conferences . have taken place before the affidavit is filed on 05. 12. 2001.

Therefore, the High Court concluded that the Government has c not been candid in disclosure of the reasons for passing the order dated 06. 01. 2001. In our opinion, the aforesaid decisions with regard to ttie discontinuance of the Sales Tax exemptions from 01. 01. 2000 could not have affected the rights of the Company under the Industrial Policy, 1995. Necessary 0 application was made to the Government seeking exemption on 21. 11. 1997. For more than 3 years, the Company and the financial institutions had been assured by the Government that the notification will be issued forthwith. However, it was not issued. We are of the opinion that the action of the appellants E is arbitrary and indefensible. 69. Learned Senior counsel for the appellants had also submitted that it was not necessary to issue the notification within one month as stipulated in clause 24 of the Industrial Policy, 1995.

In order to appreciate the aforesaid submission, F it would be necessary to make a reference to the relevant clauses of the Industrial Policy, 1995. Clause 22, 23 and 24 are as under:- · "REVIVAL OF SICK UNITS. G The continuing problems of industrial sickness is a matter of great concern for the Government. Closure of units leads to unemployment and locking up of capital · deployed in such ventures. The State Government is determined to take effective measures and to render all H A possible assistance for the amelioration of this malaise. 22. 1. INDUSTRIAL SICKNESS IN SS/ SECTION The State Government proposes to take the following measures for the revival of SSI units: B i. there are scores of medium and small scale units which are sick but have the potential of becoming viable.

For such SSI units which are outside the purview of the Bureau of Industrial and Financial Reconstruction (BIFR), the State Government · c proposes to form an apex body on the lines of BIFR with Director of Industries as its Head to consider their revival. ii. The State level apex body for rehabilitation of sick D industry would be vested with adequate powers so that it can effectively implement management and financial restructuring. iii. The sick SSI units would be identified as per guidelines E given by RBI/IDBI. Appropriate packages of reliefs and concessions for such units would be approved for their rehabilitation. iv. Sick units undergoing rehabilitation will not have to take sickness certificate every year. The approved revival F package for each sick unit would indicate the period of revival. v. The Apex Body shall monitor the progress of the revival package. G vi.

A sick unit being revived would be entitled to Sales Tax exemption/deferment exemption from Minimum Guarantee etc. as determined in the revival package. · vii. The State level Apex body would besides H representatives of Government Department/ A Organisations/ financial institutions will also have its members one representative each of confederation of Indian Industries, Bihar Industries Association and Bihar Chamber of Commerce. B The rehabilitation package would be implemented within a fixed time frame so that the process of revival is not delayed. 22. 2 SICKNESS IN LARGE AND MEDIUM SECTOR c i. A committee with Industrial Development Commissioner as its head will be constituted to evolve suitable measures for potentially viable non-BIFR sick industrial units including PSUs in the large and medium sector.

The Committee will recommend concessions and D facilities including those in this policy statement if considered necessary for revival of the Unit; These recommendations would be placed before the Government through State level Empowered Committee (SLEC) already constituted under the chairmanship of Chief E Secretary for final decision. ii. Concessions and facilities identified under the Scheme of rehabilitation prepared by the Board for Industrial and Financial Reconstruction (BIFR) or by Inter-Institutional F Committee of IRBI, BICICO/BSFC and Bank would be placed before the Committee headed by the Industrial Development Commissioner for consideration and recommendation to Government through SLEC for approval. G iii.

Rehabilitation measures for sick but potentially viable industrial units may, inter alia, include reliefs ·and concessions or sacrifice from various government departments/ organizations and or additional facilities H A including allocation of power from BSEB/DVC and any other agency/statutory body/local authority. " 22. 3. Such closed and sick industrial units which have once availed of the facility of Sales Tax exemption/ deferment under a rehabilitation package prepared by B BIFR shall not get the same facility again if they turn sick or are closed again. This will also apply to other facilities given to such sick and closed industrial units which have once availed of such facilities in the past. However, the State Government may consider extending such facilities c on case to case basis as required. · 23. Definition(s) given in the Annexure form(s) part of the policy. 24.

MONITORING AND REVIEW D All concerned departments and organizations will issue follow up notifications to give effect to the provisions of the policy within a month. This will be appropriately monitored by the Govt. E The State Government may carry out Mid Term Review of this Policy. " 70. A perusal of the aforesaid policy clearly shows that the F Government was determined to take effective measures to render all possible assistance for amelioration of the continuing problem of industrial sickness in the State. It was viewed as a matter of great concern for the Government. Under Clause 22(1), the State Government was to constitute an apex body on the lines of BIFR with Director of Industries to consider the G revival of sick Medium and Small Scale Units. Clause 22(2) deals with sickness in large and medium sector. Under clause 22(2)(i), a Committee headed by the Industrial Development Commissioner was to evolve suitable measures for potentially viable non-BIFR sick industrial units.

Under Clause 22(2)(ii) the H Committee was to recommend concessions and facilities which were considered necessary for revival of the unit. The Company was, therefore, eligible under the aforesaid Clause 22(2}(ii). The Industrial Policy, 1995 did not envisage sickness in its strict terms as defined under the Sick Industrial Companies (Special Provisions) Act, 1985. The policy was of a wider application and included industrial sickness not only qua BIFR companies but also in relation to non-BIFR potentially viable sick companies. The Clause 6 of the Annexure attached to the Policy defines a sick unit as under:- "Sick Unit: Sick unit means an industrial unit declared sick by the Board of Industrial and Financial Reconstruction under the Sick Industrial Companies (Special Provision) Act, 1985 or by the Apex Body headed by the Director of Industries for SSI or the High Level Empowered Committee headed by the Chief Secretary for large and medium sector. " 71.

The aforesaid definition makes it abundantly clear that the sickness of the Company could also be decided by the SLEC headed by the Chief Secretary. The exemption claim of the Company was duly considered by the Committee constituted under Clause 22. 2(i). Its recommendations were duly placed before the SLEC under Clause 22. 2(ii). The recommendations were not implemented only because the Government failed to issue a notification under Clause 24 of the Industrial Policy, 1995 within the stipulated period of one month. Even if we are to accept the submissions of Dr. Dhawan and Mr. Dwivedi that the provisions contained in Clause 24 was mandatory the time of one month for issuing the notification could only have been extended for a reasonable period. It is inconceivable that it could have taken the Government 3 years to issue the follow up notification.

We are of the considered opinion that failure of the appellants to issue the necessary notification within a reasonable period of the enforcement of the Industrial Policy, 1995 has rendered the decisions dated • 06. 01. 2001 and 05. 03. 2001 wholly arbitrary. The appellant cannot be permitted to rely on its own lapses in implementing its policy to defeat the just and valid claim of the Company. 72. For the same reason we are unable to accept the submissions of the learned senior counsel for the appellant that 8 no relief can be granted to the Company as the Policy has lapsed on 31. 08. 2000. Accepting such a submission would be to put a premium and accord a justification to the wholly arbitrary action of the appellant, in not issuing the notification in accordance with the provisions contained in Clause 24 of the Industrial Policy, 1995.

The entire sequence of meetings adverted to above would clearly indicate that rehabilitation package for the Company was considered by the financial institutions keeping in view the provisions contained in the Industrial Policy, 1995. The two Committees constituted under the aforesaid policy had duly recommended granting of exemptions. This was much before the policy lapsed on 31. 08. 2000. 73. The assurances given in various meetings were reiterated before the High Court in the Affidavit dated 05. 12. 2000. It was clearly stated that the draft notification was being prepared and being approved. It was thus obvious that the notification merely had to be published in the Official . Gazette. After making the aforesaid statements in the affidavit, order dated 06. 01. 2001 was issued. The four reasons given in support of the decision are clearly arbitrary. It was no longer open to the appellant not to issue the notification on the ground that the Policy had lapsed on 31. 08. 2000.

The second reason that the exemption could not be granted to the Company as no notification had been issued under Clause 24 cannot be accepted as the appellant-State cannot be permitted to take advantage of its own wrong. The third reason given is that the State-level Empowered Committee (SLEC) had not approved · the rehabilitation package. This clearly is against the record which has been examined by us in the earlier part of the . judgment. Not only the exemption was recommended by the A competent Committees under the Industrial Policy,· 1995, emphatic assurances were given that the notification will be issued within a very short period. The fourth reason with regard to the resolution passed at the Chief Ministers' Conference is equally extraneous to the issue. The Company had made the B application for exemption at a much prior time in 1997.

No material has been placed either before the High Court or before this Court about the legal enforceability of the resolutions passed at the Chief Ministers' Conference. In our opinion the decision making process which culminated in passing of the c orders dated 06. 01. 2001 and 05. 03. 2001 is seriously flawed, therefore, the same have been ju::tifiably quashed by the High Court. 74. We may now consider the submissions made in IA No. 3 of 2006. On 18. 11. 2002, this Court passed the following D order: "As an interim arrangement during the pendency of this appeal, with a view to protect the interests of either side, we direct the respondent to deposit an amount E equivalent to the sale tax payable by it as and when it becomes due in an interest hearing account in a nationalized bank. This amount and the amount accused during the pendency of the appeal, shall not be withdrawn by other side.

F The amount so kept in deposit shall become payable to the party which ultimately succeeds in this appeal. The appellants are directed to issue the exemption orders and on receipt of such order, the above said amount G shall be deposited. The issuance of the exemption order is without prejudice to the case of the parties in this appeal.. The I. A. in the disposed of. " H 75. It is not in dispute for us that pursuant to the aforesaid directions the appellant has issued the Notification No. S0-174 dated 18. 10. 2004 granting exemption to the company. The notification was to have effect for five years from the date of publication in the official gazette or till the disposal of special leave petition No. 5181 of 2002, whichever is earlier. The notification was issued subject to the terms and conditions notice earlier in the judgment.

Under the aforesaid terms and conditions, the company was to deposit the tax payable per month with an interest bearing (wrongly typed in the order as hearing) account in a nationalized bank. The company was also to provide information of the bank account to the circle where it is registered. Details regarding amount of payment made each month was also to be supplied to the appellant. 76. It is now the submission of the learned counsel for the appellant that the company has neither complied with the order passed by this Court on 18. 11. 2002 nor the conditions stipulated in the notification dated 16. 10. 2004. It is further submitted that prayers in the application were to recall the order dated 18. 11. 2002 and to stay the operation of a judgment under appeal dated 24. 04. 2002. However the application was not finally disposed of, even though the pleadings were complete. 77.

During the pendency of the proceedings there have been some further development, which will now need to be taken into consideration by the Court, to do justice between the parties. 78. During the interregnum the company has been collecting the amount equivalent to the tax from the consumers. According to Dr. Rajiv Dhawan, Mr. Dwivedi during this period the company has collected more than Rs. 60 crores on the sale of cement by virtue of the directions issued by this Court in the Order dated 18. 11. 2002. In view of the law laid down by this Court in Amrit Banaspati (supra) the company cannot be permitted to retain the amount collected from the customers. This would amount unjust enrichment. Therefore, a direction is required to be issued that the amount deposited by the company with the bank pursuant to the orders of this Court be released to the appellant State. On the other hand, Mr.

Parshad has submitted that the delay in issuance of the exemption Notification by the State has crippled the Company financially. Even then the Company is trying to revive itself through financial restructuring. The survival of the Company now depends on the approval of the Financial Restructuring Package prepared by the respondent No. 2. This package has been submitted to the Chief Minister of Bihar which is still on the consideration of the Government. With regard to the non-deposit of amount equivalent to the tax due, Mr. Parshad reiterated that the Company had made bona fide efforts, but was unable to deposit the amount due to its 'sickness'. On the one hand the revised rehabilitation package is kept under consideration, on 0 the other the appellants seeks the vacation of the order dated 18. 11. 2002. The application, according to the learned senior counsel, deserves outright dismissal. 79. We have considered the submissions made by the learned counsel.

It would be not possible to accept the submissions of Mr. Parshad that in view of the financial condition of the company it may be permitted to retain the amount collected under the orders of this Court. The amount was collected from the consumer to offset the tax liability. Such amount cannot be permitted to be retained by the company. In Amrit Banaspati case (supra) it has been held that exemption and refund of tax are two different legal and distinct concepts. The obj~ctive of the exemption is to grant incentive to encourage industrialization. It is to enable the industry to compete in the market. On the other hand, refund of tax is made only when it has been realized illegally or 'contrary to the provisions of law. Tax lawfully levied and realized cannot be refunded. In view of the settled 'position of the law, we decline to accept the suggestion made by Mr. Parshad. A 80.

Direction is, therefore, issued that the amount deposited by the company in the designated account opened and operated pursuant to the order of this Court dated 18. 11. 2002 together with accrued interest shall be released to the appellant State, forthwith. 8 81. I. A. No. 3 is therefore allowed in the aforesaid terms. 82. In view of the above, the appeal filed by the State challenging the judgment and order dated 24. 4. 2002 is dismissed, however, I. A. No. 3 is allowed to the extent indicated C above. K. K. T. Appeal dismissed and Application allowed.