A B C D E F G H 45 THE STATE OF JHARKHAND AND ORS. v. BRAHMPUTRA METALLICS LTD., RANCHI AND ANR. (Civil Appeal Nos. 3860-3862 of 2020) DECEMBER 01, 2020 [DR. DHANANJAYA Y CHANDRACHUD AND INDU MALHOTRA, JJ.] Bihar Electricity Duty Act, 1948 – s.9 – Jharkhand Industrial Policy, 2012 – The Industrial Policy 2012 was notified by the State government on 16.06.2012 providing an exemption from payment of 50 per cent of the electricity duty for a period of five years – The policy envisaged that the industrial units will be entitled for reimbursement/payment of subsidy etc. under the different categories only from the next financial year of the date of production – It was also stipulated in the policy that notifications enforcing the terms of the industrial policy would be issued within a period of one month by the Departments of the State government – The Departments of the State government failed to comply with the one month time schedule – Eventually, the State government issued an exemption notification on 08.01.2015 but made it effective from the date on which it was issued – Writ petition by the respondent – Before the High Court, the respondent claimed that the clause in the notification making it prospective should be effaced since it was contrary to the representation that was held out by the Industrial Policy 2012 – Alternately, the respondent sought a direction that it would be entitled to an exemption from electricity duty for a period of five years from the date of the issuance of the notification – High Court held that there was no specific reason for delay and that ‘but for the lethargic approach of the state authorities’ the exemption should have been issued within a month of the issuance of the Industrial Policy 2012 – The High Court concluded that the notification dated 08.01.2015 issued by the Commercial Tax Department of the State government ought not to be construed with prospective effect and the clause making it prospective would have to be struck down – The notification was deemed to be in effect from the date of the Industrial Policy 2012 (1 April 2011) – The electricity duty deposited for FYs 2011-12, 2012-13 and 2013-14 was directed to be adjusted against [2020] 14 S.C.R. 45 45 A B C D E F G H 46 SUPREME COURT REPORTS [2020] 14 S.C.R. the future liability of the respondent towards electricity duty – On appeal, held: The State government issued a statutory notification u/s. 9, but by doing so prospectively with effect from 08.01.2015 it negated the nature of the representation which was held out in the Industrial Policy 2012 – Absolutely no justification bearing on reasons of policy or public interest has been offered before the High Court or before the Supreme Court for the delay in issuing a notification – Since the State has offered no justification for the delay in issuance of the notification, or provided reasons for it being in public interest, such a course of action by the State is arbitrary and is violative of Art.14 – In the instant case, the respondent is entitled to a rebate/deduction from electricity duty – However, the respondent would not be entitled to a rebate/deduction for FY 2011- 12 – In terms of the Industrial Policy 2012, the entitlement ensues from the financial year following the commencement of production – The respondent commenced production on 17.08.2011 – Therefore, the order of the High Court for the FYs 2012-13 and 2013-14 is confirmed. Principles/Doctrines – Promissory estoppel – Origins and evolution – discussed. Principles/Doctrines – Promissory estoppel and legitimate expectation – Difference between – discussed. Disposing of the appeals, the Court HELD: Expectations breached by the State of Jharkhand 1. In the present case, this Court is unable to perceive any substance in the submission of the State which was urged in defense before the High Court. Not only did the State in the present case hold out a solemn representation, this representation was founded on its stated desire to encourage industrialization in the State. The policy document spelt out: (i) The nature of the incentives; (ii) The period during which the incentives would be available; and A B C D E F G H 47 (iii) The time limit within which follow-up action would be taken by the State government through its departments for implementing the Industrial Policy 2012. [Para 43][78-F-H] 2. The State having held out a solemn representation in the above terms, it would be manifestly unfair and arbitrary to deprive industrial units within the State of their legitimate entitlement. The State government did as a matter of fact, issue a statutory notification under Section 9 of the Bihar Electricity Duty Act, 1948 but by doing so prospectively with effect from 8 January 2015 it negated the nature of the representation which was held out in the Industrial Policy 2012. Absolutely no justification bearing on reasons of policy or public interest has been offered before the High Court or before this Court for the delay in issuing a notification. The pleadings are completely silent on the reasons for the delay on the part of the government and offer no justification for making the exemption prospective, contrary to the terms of the representation held out in the Industrial Policy 2012. [Para 44][79-A-C] 3. It is one thing for the State to assert that the writ petitioner had no vested right but quite another for the State to assert that it is not duty bound to disclose its reasons for not giving effect to the exemption notification within the period that was envisaged in the Industrial Policy 2012. Both the accountability of the State and the solemn obligation which it undertook in terms of the policy document militate against accepting such a notion of state power. The state must discard the colonial notion that it is a sovereign handing out doles at its will. Its policies give rise to legitimate expectations that the state will act according to what it puts forth in the public realm. In all its actions, the State is bound to act fairly, in a transparent manner. This is an elementary requirement of the guarantee against arbitrary state action which Article 14 of the Constitution adopts. A deprivation of the entitlement of private citizens and private business must be proportional to a requirement grounded in public interest. This conception of state power has been recognized by this Court in a consistent line of decisions. [Para 45][79-C-F] THE STATE OF JHARKHAND v. BRAHMPUTRA METALLICS LTD. A B C D E F G H 48 SUPREME COURT REPORTS [2020] 14 S.C.R. 4. Therefore, it is clear that the State had made a representation to the respondent and similarly situated industrial units under the Industrial Policy 2012. This representation gave rise to a legitimate expectation on their behalf, that they would be offered a 50 per cent rebate/deduction in electricity duty for the next five years. However, due to the failure to issue a notification within the stipulated time and by the grant of the exemption only prospectively, the expectation and trust in the State stood violated. Since the State has offered no justification for the delay in issuance of the notification, or provided reasons for it being in public interest, such a course of action by the State is arbitrary and is violative of Article 14. [Para 46][80-A-C] 5. The narrow issue is whether the respondent is entitled to a rebate/deduction from electricity duty which is answered in the affirmative. It is necessary, however, to clarify that the respondent would not be entitled to a rebate/deduction for FY 2011-12. In terms of Clause 35.7(b) of the Industrial Policy 2012, the entitlement ensues from the financial year following the commencement of production. The respondent commenced production on 17 August 2011. Hence, the order of the High Court would have to be confirmed for FYs 2012-13 and 2013-14. In conclusion, this Court in agreement with the conclusion of the High Court that the respondent was entitled to an exemption from electricity duty, although for the reasons indicated in this judgment. Further, the relief granted would stand confined to FYs 2012-13 and 2013-14. [Para 51][85-B-D] National Buildings Construction Corporation vs S. Raghunathan (1998) 7 SCC 66 : [1998] 1 Suppl. SCR 156; Monnet Ispat and Energy Ltd. vs Union of India (2012) 11 SCC 1 : [2012] 7 SCR 644; Union of India vs Lt. Col. P.K. Choudhary (2016) 4 SCC 236 : [2016] 2 SCR 426; Food Corporation of India vs Kamdhenu Cattle Feed Industries (1993) 1 SCC 71 : [1992] 2 Suppl. SCR 322; NOIDA Entrepreneurs Assn. vs NOIDA (2011) 6 SCC 508 : [2011] 8 SCR 25; Indian Council for Enviro-Legal Action vs Union of India (2011) 8 SCC 161: [2011] 9 SCR 146 – relied on. A B C D E F G H 49 State of Bihar v. Kalyanpur Cement Limited (2010) 3 SCC 274 : [2010] 1 SCR 928 Manuelsons Hotels Private Limited vs State of Kerala (2016) 6 SCC 766 : [2016] 3 SCR 718; Motilal Padampat Sagar Mills Co. Ltd. v. State of UP (1979) 2 SCC 409: [1979] 2 SCR 641 ; State of Madhya Pradesh v. Bhailal Bhai AIR 1964 SC 1006 : [1964] SCR 261; Suganmal v. State of Madhya Pradesh AIR 1965 SC 1740; Mafatlal Industries Ltd. v. Union of India (1997) 5 SCC 536:[1996] 10 Suppl. SCR 585; Amarjit Singh Ahluwalia (Dr) vs State of Punjab, (1975) 3 SCC 503 : [1975] 3 SCR 82; Sukhdev Singh vs Bhagatram Sardar Singh Raghuvanshi, (1975) 1 SCC 421 : [1975] 3 SCR 619 (concurring opinion of Justice K K Mathew) and Ramana Dayaram Shetty vs International Airport Authority of India, (1979) 3 SCC 489 : [1979] 3 SCR 1014; High Court of Judicature of Patna vs Madan Mohan Prasad (2011) 9 SCC 65 :[2011] 13 SCR 972; Dayal Singh vs Union of India (2003) 2 SCC 593 : [2003] 1 SCR 714; Hindustan Petroleum Corporation Ltd. vs Dolly Das (1999) 4 SCC 450 – referred to. Crabb v. Arun DC [1976] 1 Ch 179 27;Combe v. Combe [1951] 2 K.B. 21529; Wyvern Development, Re, [1974] 1 W.L.R. 1097 Tungsten Electric Co Ltd. vs Tool Metal Manufacturing Co. Ltd., [1955] 1 W.L.R. 761,Baird Textiles Holdings Ltd. vs Marks and Spencer Plc., [2002] 1 All ER (Comm) 737, Waltons Stores (Interstate) Ltd vs Maher, (1988) 164 CLR 387. 30; R vs North and East Devon Health Authority, ex p Coughlan [2001] QB 213; Regina (Bibi) vs Newham London Borough Council [2002] 1 W.L.R. 23734; Vitarelli vs Seton 359 US 535 (1959); East Sussex County Council [2003] 1 WLR 348; Attorney General for New South Wales vs. Quinn (1990) 64 Aust LJR 327 : (1990) 170 CLR 1; Regina (Reprotech (Pebsham) Ltd) vs East Sussex County Council [2003] 1 WLR 348 – referred to. THE STATE OF JHARKHAND v. BRAHMPUTRA METALLICS LTD. A B C D E F G H 50 SUPREME COURT REPORTS [2020] 14 S.C.R. Hugh Beale, Chitty on Contracts (32nd edn., Sweet & Maxwell 2017). Harry Woolf and others, De Smith’s Judicial Review (8th edn, Thomson Reuters 2018). M.P. Jain and S.N. Jain, Principles of Administrative Law (7th edn., EBC 2013) – referred to. Case Law Reference [2010] 1 SCR 928 referred to Para 11 [2016] 3 SCR 718 referred to Para 11 [1979] 2 SCR 641 referred to Para 11 [1964] SCR 261 referred to Para 14(x) AIR 1965 SC 1740 referred to Para 14(x) [1996] 10 Suppl. SCR 585 referred to Para 14(xii) [1975] 3 SCR 82, referred to Para 38 [1975] 3 SCR 619 referred to Para 38 [1979] 3 SCR 1014 referred to Para 38 [1998] 1 Suppl. SCR 156 relied on Para 39 [2012] 7 SCR 644 relied on Para 40 [2016] 2 SCR 426 relied on Para 41 [1992] 2 Suppl. SCR 322 relied on Para 42 [2011] 8 SCR 25 relied on Para 42 [2011] 13 SCR 972 referred to Para 42 [2003] 1 SCR 714 referred to Para 42 (1999) 4 SCC 450 referred to Para 48 [2011] 9 SCR 146 relied on Para 50 CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3860- 3862 of 2020 From the Judgment and Order dated 11.12.2019 of the High Court of Jharkhand in Writ Petition (T) No. 4274 of 2019, Writ Petition (T) No. 4275 of 2019 and Writ Petition (T) No. 4320 of 2019 A B C D E F G H 51 Tapesh Kumar Singh, AAG, Aditya Pratap Singh, Ms. Bhashwati Singh, Devashish Bharuka Mrs. Jaya Bharuka, Ravi Bharuka, Ms. Sarvshree, Justine George, Ms. Srishti Agarwal, Advs. for the appearing parties. The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J. A The appeal B The issue C Captive power plant : assessment to electricity duty D Industrial Policy 2012 E Exemption from Electricity Duty F Before the High Court G Submissions of Counsel H Analysis H.I A State in breach of policy commitments H.2 Building on Motilal Padampat H.3 Promissory estoppel – origins and evolution H.4 From estoppel to expectations H.5 Indian Law and the doctrine of legitimate expectations H.6 Expectations breached by the State of Jharkhand H.7 The technical defences to the claim I Conclusion 1. Leave granted. A. The appeal 2. This appeal arises from a judgment of the High Court of Jharkhand. While allowing a petition instituted by the respondents under Article 226 of the Constitution, the Division Bench: (i) struck down the last paragraph of a notification dated 8 January 2015 issued by the State government in its THE STATE OF JHARKHAND v. BRAHMPUTRA METALLICS LTD. A B C D E F G H 52 SUPREME COURT REPORTS [2020] 14 S.C.R. Department of Commercial Taxes, giving prospective effect to the rebate/deduction from electricity duty offered under the Jharkhand Industrial Policy, 20121; (ii) directed that the notification shall be deemed to be in effect from 1 April 2011, when the Industrial Policy 2012 was enforced with retrospective effect; and (iii) upheld the claim of the respondent that it was entitled to a rebate/deduction from electricity duty in terms of the representation held out in the Industrial Policy 2012, and that the denial of the exemption by the State government for FYs2011-12, 2012-13 and 2013-14 was contrary to the doctrine of promissory estoppel. The State is in appeal to challenge the judgment dated 11 December 2019. B. The issue 3. The issue for determination is whether the respondent is entitled to claim a rebate or deduction of 50 per cent of the amount assessed towards electricity duty for FYs 2011-12, 2012-13 and 2013-14.The respondent claims its entitlement on the basis of the Industrial Policy 2012 (notified by the appellant on 16 June 2012) and a statutory notification dated 8 January 2015 issued under Section 9 of the Bihar Electricity Duty Act 19482. The Bihar Act 1948 was adopted with effect from 15 November 2000 for the State of Jharkhandunder the provisions of the Bihar Reorganization Act 2000. C. Captive power plant : assessment to electricity duty 4. The respondent was granted a certificate of commencement of commercial production on 31 May 2013. The certificate records that the integrated manufacturing unit of Sponge Iron and Mild Steel Billets, together with a captive thermal plant of 20 MW capacity set up by the respondent commenced commercial production on 17 August 2011. A certificate of registration was granted to the respondent on 22 November 2011 under Rule 4 of the Bihar (Jharkhand) Electricity Duty Rules 19493, according to which it was liable to pay duty for distribution and/or 1 “Industrial Policy 2012” 2 “the Bihar Act 1948” 3 “the Bihar Rules 1949” A B C D E F G H 53 consumption of the energy from 1 October 2011. On the basis of the returns submitted by the respondent in Form-III, read with Rule 9 of the Bihar Rules 1949, assessment orders were passed by the assessing officer for FY 2011-12 on 9 December 2014, for FY 2012-13 on 18 December 2015 and for FY 2013-14 on 16 December 2016. D. Industrial Policy 2012 5. The Industrial Policy 2012 was notified by the State government on16 June 2012. Some of the salient features of the Industrial Policy 2012need to be visited: (i) Clause 32.10 provided an exemption from the payment of 50 per cent of the electricity duty for a period of five years, for captive power plants established for self-consumption or captive use: “32.10 Incentive for captive power plant New or existing industrial units setting up captive power plant shall be exempted from the payment of 50% of electricity duty for a period of five years for self- consumption or captive use (i.e. in respect of power being used by the plant) from the date of its commissioning”. (ii) Clause 35.7(b) envisaged that the entitlement would ensue from the financial year following the Date of Production (DoP): “35.7(b) Industrial units will be entitled for reimbursement/ payment of subsidy / incentives under different categories only from the next financial year of DoP.” (iii) Clause 38(b) stipulated that notifications enforcing the terms of the industrial policy would be issued within a period of one month by the Departments of the State government: “38. Monitoring and Review (b) All concerned departments and organizations would issue necessary follow up notifications within a month to give effect to the provisions of this Policy. The implementation of this policy will be duly monitored by THE STATE OF JHARKHAND v. BRAHMPUTRA METALLICS LTD. [DR. DHANANJAYA Y CHANDRACHUD, J.] A B C D E F G H 54 SUPREME COURT REPORTS [2020] 14 S.C.R. Government at the level of Chief Secretary atleast once in a quarter, so that the State Government may carry out a mid-term review of this Policy.” E. Exemption from Electricity Duty 6. Though the Industrial Policy 2012 which was notified on 16 June 2012 envisaged that notifications by the Departments of the State government would be issued within one month, there was a failure to comply with the time schedule. In order to give effect to the exemption from electricity duty, a notification under Section 9 of the Bihar Act 1948 was necessary. Section 9 recognizes the power of the State government to grant exemptions4. 7. Rule 6 of the Bihar Rules1949 casts a duty on every assessee to pay the duty which falls due within two calendar months of the month to which it relates. Rule 9 requires the submission of a return in Form-III within a period of two calendar months from the expiry of the month to which the return relates5. 8. Since an exemption notification was not issued by the State of Jharkhand under Section 9, a writ petition was filed under Article 226 of the Constitution before the High Court of Jharkhand by a company by the name of Usha Martin Limited6. Eventually, the State government issued an exemption notificationon 8 January 2015 but made it effective from the date on which it was issued. The exemption notification is extracted below: “S.O.67 dated 8th January, 2015 – In the light of Para 32.10 of Jharkhand Industrial Policy, 2012 and in exercise of the powers 4 “Section 9. Power of State Government to grant exemptions- The State Government shall have power to exempt any person or class of persons notified in this behalf from the duty payable under this Act and such exemptions, may be subject to such conditions and exemptions if any, as may be mentioned in the said notification.” 5 Rule 6. Payment of duty. - Every assessee shall pay the full amount of the duty due from him under section 4 within two calendar months of the month to which the duty relates. Rule 9. Submission of Returns. - Every assessee shall submit to the appropriate inspecting authority of the Circle or sub-circle as the case may be, a return in Form III, within two calendar months from the expiry of the month to which the return relates. The return shall be verified in the manner indicated therein and shall be signed by the assessee or by his authorised agent. When an assessee holds more than, one license, separate returns shall be submitted in respect of each license. 6 WP (T) No. 6008 of 2014, decided on 3/4 February 2015. A B C D E F G H 55 conferred by the Section 9 of the adopted Bihar Electricity Duty Act, 1948, the Governor of Jharkhand is pleased to exempt new or existing industrial units setting up captive power plant for self- consumption or captive use (in respect of power being used by the plant) from the payment of 50% of Electricity Duty from the date of the commissioning of the power plant. This notification shall be effective from the date of issue and shall remain effective till the period mentioned in the relevant provisions of the Jharkhand Industrial Policy, 2012.” 9. The Industrial Policy 2012 announced an incentive in the form of a rebate or deduction on electricity duty for a period of five years from the commencement of production. If a notification under Section 9 had been issued by the State government within a month,in terms of the representation held out by the Industrial Policy 2012, the respondent would have had the benefit of almost the entire period of exemption contemplated by the policy. But since the exemption notification dated 8 January 2015 was made prospective, the respondent (and other similar units) would receive the benefit of the exemption from electricity duty for a much lesser period. Faced with this situation, the respondent instituted writ proceedings before the High Court of Jharkhand in August 2019. F. Before the High Court 10. Placing reliance on the doctrine of promissory estoppel,the respondent sought, in its submissions before the High Court, one of two reliefs or directions. First, the respondent claimed that the clause in the notification making it prospective should be effaced since it was contrary to the representation that was held out by the Industrial Policy 2012. Alternately, the respondent sought a direction that it would be entitled to an exemption from electricity duty for a period of five years from the date of the issuance of the notification (the period of five years being the envisaged period under the Industrial Policy 2012). 11. The High Court accepted the first of the two courses of action noted above, placing reliance on the decisions of this Court in State of Bihar vs Kalyanpur Cement Limited7 (“Kalyanpur Cement Ltd.”) and Manuelsons Hotels Private Limited vs State of Kerala8 7 (2010) 3 SCC 274. 8 (2016) 6 SCC 766. THE STATE OF JHARKHAND v. BRAHMPUTRA METALLICS LTD. [DR. DHANANJAYA Y CHANDRACHUD, J.] A B C D E F G H 56 SUPREME COURT REPORTS [2020] 14 S.C.R. (“Manuelsons Hotels Pvt. Ltd.”). These decisions are premised on the doctrine of promissory estoppel enunciated in Motilal Padampat Sagar Mills Co. Ltd. vs State of UP9 (“Motilal Padampat”). The High Court held that a promise was made by the State government to give the benefit of an exemption of 50 per cent in electricity duty for a period of five years, for self-consumption or captive use, to all new and existing industrial units setting up captive power plants in the State of Jharkhand. The High Court observed that it was not the case of the State government that it did not intend to give the benefit to these industrial units since, as a matter of fact, it had issued a notification, though belatedly, on 8 January 2015. 12. Finding fault with the delay on the part of the government in issuing an exemption notification, the High Court held that there was no specific reason for the delay and that “but for the lethargic approach of the state authorities” the exemption should have been issued within a month of the issuance of the Industrial Policy 2012. The effect of the belated notification was to deny industrial units of the benefit of the promise held out by the State government. The High Court noted that the benefit was to be given with effect from FY 2011-12 for a period of five years which ended in FY 2015-16. Since the exemption notification was issued on 8 January 2015, the unit of the respondent and similarly placed units would receive the benefit for only one or two years instead of promised five years,as the Industrial Policy 2012 envisaged. In this backdrop, the conclusion of the High Court was that the failure of the State to issue an exemption notification within time should not stand in the way of the industrial units getting the benefit which was promised and its denial of such benefit for FYs 2011-12, 2012-13 and 2013-14 was contrary to the doctrine of promissory estoppel. The issuance of an exemption notification being a ministerial act, the High Court held that it should not stand in the way of industrial units obtaining relief under the doctrine as a result of the unconscionable delay caused by the State government. It was on this rationale that the High Court concluded that the notification dated 8 January 2015 issued by the Commercial Tax Department of the State government ought not to be construed with prospective effect and the clause making it prospective would have to be struck down. The notification was deemed to be in effect from the date of the Industrial Policy 2012 (1 April 2011). The electricity duty 9 (1979) 2 SCC 409. A B C D E F G H 57 deposited for FYs 2011-12, 2012-13 and 2013-14 was directed to be adjusted against the future liability of the respondent towards electricity duty. Since the amount has already been deposited no refund, but an adjustment of future payments was directed. 13 The State is in appeal. G. Submissions of Counsel 14. Mr Tapesh Kumar Singh, Additional Advocate General appearing for the State of Jharkhand submits that: (i) In terms of the rebate/concession admissible under the Industrial Policy 2012, the respondent was required by Column 6(iv) of Form-III to raise a claim for exemption from the payment of electricity duty; (ii) In all the three returns which were furnished by the respondent, a rebate/deduction was sought only towards “auxiliary consumption”, which was accepted and allowed by the assessing officer; (iii) In the absence of a claim for rebate/deduction sought before the assessing officer, the assessing officer could not have granted a concession to the respondent; (iv) The three assessment orders demonstrate that the respondent paid electricity duty without protest or demur, and the computation made by the assessing officer of the payable amount was accepted; (v) The three returns filed by the respondent for the corresponding assessment years were belated and an amount of Rs 2000/- was levied as penalty; (vi) The submission that the notification under Section 9 of the Bihar Act 1948 was belatedly issued on 8 January 2015 is not available to the respondent since two of the three assessment orders were issued eleven months and twenty- three months after the issuance of the notification.Hence, in the assessment orders of FYs 2012-13 and 2013-14, no prejudice has been caused to the respondent by the belated issuance of the notification; THE STATE OF JHARKHAND v. BRAHMPUTRA METALLICS LTD. [DR. DHANANJAYA Y CHANDRACHUD, J.] A B C D E F G H 58 SUPREME COURT REPORTS [2020] 14 S.C.R. (vii) For FY 2011-12, it has been conceded during the course of the hearingby the respondent that upon a correct construction of the relevant terms of the Industrial Policy 2012, it is not entitled in law to claim a rebate/deduction or adjustment in view of Clause 35.7(b); (viii) The relief which has been granted by the High Court to another similarly situated writ petitioner on 4 February 2015 shall operate erga omnes; (ix) In 2019, the respondent instituted three writ petitions for the corresponding three assessment years – FYs 2011-12, 2012-13 and 2013-14 with a view to overcome the period of limitation under the general law and these have erroneously been allowed by the common judgment and order of the High Court; (x) The law laid down in the judgments of the Constitution Bench in State of Madhya Pradesh vs Bhailal Bhai10 (“Bhailal Bhai”) and Suganmal vs State of Madhya Pradesh11 (“Suganmal”) continues to hold the field; (xi) The above judgments hold that any claim for refund could be made only within the period of limitation prescribed under the general law for the filing of suits for the recovery of amounts due and the High Court ought not to entertain a petition under Article 226 in the exercise of its extra-ordinary writ jurisdiction; (xii) In the absence of any pleading before the High Court,there is a presumption in law against the respondent that the amount claimed as rebate/deduction from electricity duty has already been passed on to its customers.Hence,the adjustment which has been granted by the High Court would result in unjust enrichment to the respondent. Reliance was placed on the decision of this Court in Mafatlal Industries Ltd. vs Union of India12 (“Mafatlal Industries”); (xiii) An alternative and efficacious statutory remedy of an appeal under Section 9A of the Bihar Act 1948 was available to 10 AIR 1964 SC 1006. 11 AIR 1965 SC 1740. 12(1997) 5 SCC 536. A B C D E F G H 59 the respondent against the orders of assessment,and hence the High Court should have refused to allow recourse to the extra-ordinary writ jurisdiction; and (xiv) Since the unit of the respondent commenced commercial production on 17 August 2011, whereas the Industrial Policy is of 2012, the doctrine of promissory estoppel cannot be extended “backwards in favour of the respondent”. 15. On the other hand, opposing these submissions on behalf of the respondent and in support of the judgment of the High Court, Mr.Devashish Bharuka, learned Counsel urged the following submissions: (i) The act of the State government in making the exemption notification prospective in effect from 8 January 2015 is in derogation to the promise held out by the State in its Industrial Policy 2012. The High Court in placing reliance on the doctrine of promissory estoppel has correctly relied upon the decisions of this Court in Motilal Padampat (supra), Kalyanpur Cement Ltd (supra) and Manuelsons Hotels Pvt Ltd. (supra); (ii) As regards the claim of exemption by the first respondent: (a) The benefit of a rebate/deduction could not have been claimed in the returns for FYs 2011-12, 2012-13 and 2013-14. The exemption notificationwas issued only on 8 January 2015, and that too with prospective effect; (b) The first respondent has,as a matter of fact, received a rebate/deduction only for the period 8 January 2015 to 31 March 2015 and for FY 2015-16; (iii) As regards the submission that there has been a delay in instituting the writ petitions before the High Court under Article 226: (a) The issue of delay has not been raised by the State government either before the High Courtor in the Special Leave Petition; (b) Once the High Court entertained the writ petition on merits, this Courtought not to interfere on the ground THE STATE OF JHARKHAND v. BRAHMPUTRA METALLICS LTD. [DR. DHANANJAYA Y CHANDRACHUD, J.] A B C D E F G H 60 SUPREME COURT REPORTS [2020] 14 S.C.R. of delay alone, particularly when the judgment of the High Court is legally sustainable; (c) Delay by itself in filing a Writ Petition may not defeat theclaim unless the position of the opposite party has been so alteredthat it cannot be retracted on account of a lapse of time orinaction of the writ petitioner. The State has neither pleaded nor arguedany change in its position; (d) This is a case where the opposite party has not been put through any hardship by reason of the delay in approaching the High Court; and (iv) The decisions in Bhailal Bhai (supra) and Suganmal (supra) are distinguishable as they relate to a writ petition seeking refund of illegally collected tax. 16. On the above grounds, it has been submitted that the respondent is entitled to the benefit of a rebate for a period offive years as held out in clause 32.10 of the Industrial Policy 2012. 17. The respondent has submitted that the period of five years may commence from 17 August 2011 (the date of commercial production) or from FY 2012-13 (in accord with clause 35.7(b) of Industrial Policy 2012) or from 8 January 2015(the date of the notification). H. Analysis 18. The rival submissions will now be considered. H.I A State in breach of policy commitments 19. The Industrial Policy 2012 refers to the earlier Industrial Policy, which was formulated in 2001 after the formation of the State of Jharkhand. The policy notes that “considerable progress in industrialization has been achieved during the policy period”. Yet, according to Clause 1.8, there is a need to “boost economic activities to sustain the current level of growth and achieve even better pace of development”. Clause 1.9 takes notice of the fact that “there has been large scale change in (the) industrialization environment (sic) due to economic liberalization, privatization and globalization”. The policy document states in Clause 1.12 that it “aims at creating (an) industry-friendly environment for maximizing investment”: A B C D E F G H 61 “1.12. The present policy aims at creating industry-friendly environment for maximizing investment especially in mineral and natural resource based industries, MSMEs, infrastructure development and rehabilitation of viable sick units.The objective here is to maximize the value addition to state’s natural resources by setting up industries across the state, generating revenue and creating employment.” Clause 1.13 stipulates that the policy was drafted after intensive interaction with stakeholders and to accommodate their views. It was expected that the policy would, upon implementation, facilitate industrialization of the State, generate employment and add to its overall growth. 20. As an integral component of the policy, Clause 32.10 envisages the grant of an exemption from the payment of 50 per cent of the electricity duty for a period of five years both for new and existing industrial units setting up captive power plants for self-consumption or captive use The period of five years was to be reckoned from the date of the commissioning of the plant. Under Clause 35.7(b), the entitlement would ensue from the financial year following the date of production. The State government was cognizant of the need to implement the policy immediately to secure the benefit to eligible units over the entire term of five years. Recognizing this need, Clause 38(b) envisaged that notifications by its diverse departments to enforce the terms of the policy would be issued within a period of one month. 21. The alacrity expected by the Industrial Policy 2012 of the State of Jharkhand did not find a resonance in its administrative apparatus. The High Court has justifiably referred to this as a case of bureaucratic lethargy. As a matter of first principle, there can be no gainsaying the fact that when a statute, such as the Bihar Act 1948, empowers the state to grant an exemption from its provisions, the State has the discretion to determine the date from which and the period over which the exemption will operate. An individual or entity cannot compel the State to issue a notification providing for an exemption or to insist upon the terms on which the government does so. Whether an exemption should be issued and if so, the terms for the exemption, have to be determined by the State. But this case does not rest on that principle nor did the claim of the respondent require the High Court to make a departure from it. The Industrial Policy 2012 contained a representation that a THE STATE OF JHARKHAND v. BRAHMPUTRA METALLICS LTD. [DR. DHANANJAYA Y CHANDRACHUD, J.] A B C D E F G H 62 SUPREME COURT REPORTS [2020] 14 S.C.R. rebate/deduction would be granted. It held out a representation that a notification would be issued in a month. These were solemn commitments made by the State of Jharkhand. What remained was their implementation by issuing a notification, which was to be done within one month. The State government evidently intended to implement and act in pursuance of its commitment. For, ultimately, it did issue a notification. But it did so on 8 January 2015 – after a period of a month envisaged under the Industrial Policy 2012 had dragged on for nearly three years. 22. It is time for the State government to take notice of the observations of the High Court in regard to administrative lethargy. If the object of formulating the industrial policy is to encourage investment, employment and growth, the administrative lethargy of the State apparatus is clearly a factor which will discourage entrepreneurship. The policy document held out a solemn representation. It contemplated the grant of a rebate/deduction from the payment of electricity duty not only to new units but to existing units as well who had or would set up captive power plants. The State, in the present case, held out inter alia a solemn representation in terms of Clauses 32.10 and 35.7(b) of the entitlement of the exemption for a period of five years from the date of production. Besides this, it also contemplated in Clause 38(b) that a follow-up exemption notification would be issued within one month. That period of one month stretched on interminably with the result that the purpose and object of granting the exemption would virtually stand defeated. The net result was that when belatedly, the State government issued a notification under Section 9 of Bihar Act 1948 on 8 January 2015, it was prospective. As a consequence, by the time that the exemption notification was issued, a large part of the term for which the exemption was to operate in terms of the Industrial Policy 2012 had come to an end. 23. The State government was evidently inclined to grant the exemption. This is not a case where due to an overarching requirement of public interest, the State government decided to override the representation which was contained in the Industrial Policy 2012. To the contrary, it sought to implement the representation albeit in fits and starts. Firstly, there was a delay of three years in the issuance of the notification. Secondly, by making the notification prospective, it deprived units such as the respondent of the full benefit of the exemptionwhich was originally envisaged in terms of the Industrial Policy 2012. A B C D E F G H 63 H.2. Building on Motilal Padampat 24. In this backdrop, the High Court has, with justification, adverted to two decisions of this Court. In Kalyanpur Cement (supra), an industrial policy had been notified in 1995 in the State of Bihar. The policy contained a provision for monitoring and reviewing and envisaged that all departments and organizations would issue a follow-up notification to give effect to the policy within one month. This was similar to clause 38(b) of the policy in the present case. No notification was issued by the State of Bihar to give effect to the industrial policy, which lapsed on 31 August 2000. The claim to sales tax exemption by the unit was rejected by the State government on the ground that it had decided not to grant an incentive to a sick industrial unit. A follow-up notification was issued during the pendency of the case before this Court. In the backdrop of these facts, this Court speaking through Justice S S Nijjar, observed: “85. Even if we are to accept the submissions…that the provisions contained in Clause 24 were 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 three 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 6-1-2001 and 5-3-2001 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. For the same reason we are unable to accept the submissions of the learned Senior Counsel for the appellant that no relief can be granted to the Company as the Policy has lapsed on 31-8-2000. 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.” 25. In the decision in Manuelsons Hotels Private Limited v. State of Kerala (supra), speaking through Justice Rohinton F Nariman, the Court had to constr