1. Heard Ms. Vijayalakshmi, learned advocate for the petitioner and Mr. Yagnik, learned AGP for the respondents. Having regard to the contention raised in the petition and explanation tendered by the respondents in the reply affidavit, the petition requires consideration. Hence, Rule returnable forthwith.
2. Learned advocate for the petitioner has requested for early final hearing of the petition and submitted that the petitioner is old man and is suffering from cancer and his unit (salt works) suffered heavy damage due to earthquake but he has not been paid relief-compensation in accordance with the policy or at par with other persons.
3. Therefore, at the request of learned advocate for the petitioner and with consent of learned AGP, the petition is taken up for hearing and final decision today.
4. In present petition, the petitioner has prayed that:
“8(A) That this Hon'ble Court will be pleased to issue appropriate writ, order or direction in the nature of mandamus or any other appropriate writ, order or direction directing the respondents to pay the entire claim amount of Rs.19,88,000/- that was claimed by the petitioner under the relief scheme initiated by the State Government at Annexure- C to the petition;
8(B) That this Honourable Court may be pleased to issue a writ of mandamus or certiorari or any other appropriate writ, order or direction holding and declaring that the action of the respondents in disallowing the amount spent on earthwork by the petitioner and only granting 60% of the building repairing and machinery repairing work as illegal, unreasonable, arbitrary and violative of Articles 14 and 16 of the Constitution of India.”
5. So far as relevant facts involved in and leading to present petition are concerned, the petitioner has stated that the petitioner was a sole proprietor of proprietary concern, which carried on business in name and style of M/s. Bipin Salt Works.
The said proprietary concern was engaged in salt manufacturing activity, for which purpose, the said proprietary concern was granted land admeasuring about 280 acres of lease on lease by the respondent State for the purpose of constructing salt panes. It is also claimed by the petitioner that its salt works suffered having loss and damages on account of earthquake in the year 2001.
5.1 It has claimed that salt panes and other earthworks were completely destroyed. The petitioner has claimed that when, subsequently, the respondent State announced relief package for the earth affected persons / establishments, the petitioner made application-request for appropriate financial assistance as against the loss on the damages suffered by the petitioner's undertaking.
5.2 In support of the application-request, certificate issued by the Government Approved Valuer was also submitted.
5.3 According to the said certificate, the petitioner's undertaking had suffered loss to the extent of Rs.19,88,000/- (Rs.17,36,000/- for earthworks and Rs.2,52,000/- for machinery).
5.4 The petitioner has also claimed that the General Manager of District Industries Centre, Rajkot also issued certificate dated 20.2.2001 certifying the damage caused to the petitioner's unit at Rs.16,53,000/-.
5.5 On strength of such certificates, the petitioner made application-request for industrial unit. The petitioner has claimed that the respondent State had announced financial package under resolution dated 5.3.2001 and the application submitted by the petitioner complied all requirements and was in consonance with the requirements mentioned under the said resolution.
5.6 The petitioner has made reference of communication from office of respondent No.3 whereby the petitioner was informed that he should get all repairing works of the earthquake / construction, completed before 30.3.2003. The petitioner has claimed that accordingly, he got the repairing works of reservoir (earthquake), masonry, flooring, plastering, patch work, roofing work, etc. and the registered valuer certified the said work vide his certificate dated 27.2.2003.
5.7 According to the said certificate, the total repairing cost was to the tune of Rs.11,58,000/-. The petitioner has claimed that all these details were submitted to the competent authority in support of the request for financial assistance under the relief package announced by the respondent State.
5.8 After stating the aforesaid details, the petitioner has further submitted that the competent authority approved/sanctioned the relief/compensation only to the extent of Rs.2,18,851/- and disapproved the entire earthwork / repairing cost to the tune of about Rs.17,36,000/-.
5.9 Since the respondent authorities sanctioned only Rs.2,18,851/- towards relief/compensation to the petitioner, the petitioner, feeling aggrieved by the said decision, preferred present petition.
6. In response to the notice, the respondent authorities have filed reply affidavit opposing the petition. Respondent No.3 has filed affidavit dated 8.7.2011 and another affidavit dated 27.4.2012. The respondents have contended, inter-alia, that the details submitted by the petitioner were taken into consideration and after examining the documents and material supplied by the petitioner, the competent authority did not consider the package to the earthwork and/or expenditure towards repairing of earthworks, etc. and without considering the said damage/expenditure, other items were taken into consideration and accordingly, expenses to the tune of Rs.2,87,000/- for building repairs and Rs.77,752/- towards repairs of machinery, totalling to Rs.3,64,752/- came to be approved and since the relief/financial assistance was to be granted at the rate of 60% of the total loss/damages suffered by the petitioner, a sum of Rs.2,18,851/- (i.e. 60% of Rs.3,64,752/-) came to be paid to the petitioner. It is claimed that the decision of the competent authority is in consonance with the resolution dated 5.3.2001 and there is no illegality or arbitrariness or any error.
7. Learned advocate for the petitioner has submitted that the petitioner submitted certificates of Government Approved Valuer and even the certificate issued by respondent No.3, certified substantial loss/damages suffered by the petitioner's unit. However, ignoring the certificates issued by the Government Approved Valuer as well as respondent No.3, the petitioner has not been awarded compensation as should have been awarded as per the resolution dated 5.3.2001 and the certificates issued by the Government Approved Valuer and respondent No.3. She also relied on the certificate issued by consulting engineer/structural designer Mr.Deepak Buddhadev. She also referred to letter dated 21.3.2003 addressed by respondent No.3.
8. Learned AGP has, while opposing the petition, so as to support his submissions, relied on the details mentioned in paragraphs No.5 to 9 from pages 57 to 61 of the reply affidavit dated 8.7.2011 and the details mentioned in paragraphs No.2 and 3 of the reply affidavit dated 27.4.2012. Paragraphs No.5 to 9 of the reply affidavit dated 8.7.2011 read thus:
“5. I say and submit that, as per the procedure prescribed under the Earthquake Rehabilitation Assistance Scheme vide Government Resolution dated 05-03-2001, a District Level Committee (referred hereinafter as DLC) was constituted to sanction the Assistance amount in each application. In the present case, a meeting of the DLC was held on dt. 31-12-03 under the Chairmanship of District Collector, Rajkot. As laid down in the G.R., the D.L.C. comprises of Collector, District Development Officer and representative of Industrial Associations. The Committee approved the Building repairing expenses of Rs.2,87,000/- and Machinery repairing expenses of Rs.77,752/-, totaling upto Rs.3,64,752/-. An assistance of 60% of the above expenses, i.e. Rs.2,18,851/- was sanctioned by the committee. The committee also noted that the applicant unit being Salt works, the damage claimed for earthquake is not considered to be eligible. The above is evident from the proceedings as produced at Annexure F by the petitioner in his petition.
6. I say and submit that, the representations made by the petitioner were reviewed every time and also replied vide letter Dtd-19/4/2008, 4/6/2008, 8/7/2009 and 4/6/2010 by the Industries Commissioner's Office, Gandhinagar that the decision taken by the DLC is correct and there is no ground to change the decision of the DLC. In this regard the petitioner was also heard by the Industries Commissioner in person on 15/9/2009.
7. I say and submit that, the decision taken by the DLC is as per the provisions of the GR Dtd-5/3/2001 and the procedure followed by the office for sanctioning subsidy is legal, proper and correct. It is to be stated that while arriving at damage assessment, each case was evaluated on its own merit, wherein, there cannot be comparison between two different units for the purpose of granting assistance.
8. I say and submit that, the basis of assessment were:
(A) preliminary site inspection by officials of District Industries Center (referred hereinafter as DIC) before rehabilitation (B) Chartered Engineer's Certificate (as produced at Annexure E) (C) Bank Appraisal, and (D) SOR of Govt. for civil Work etc.
9. I say and submit that, in the same line, the petitioner's unit was given damage certificate on the basis of the preliminary information of damage submitted by the petitioner for (i) earthwork of Rs.8,55,000/-, (ii) damage in Machinery of Rs.50,000/-, and (iii) for building damage. Rs.7,48,000/-. Then, on receipt of application for rehabilitation assistance by the unit, the case was prepared and placed before the DLC held on dated – 31/12/2003 wherein, on the basis of actual expenses, the following investments were recommended by DIC as eligible expense for considering sanction of the assistance by the DLC.
(i) Rs.11,58,000/- for civil work involving Rs.2,87,000/- for Bldg. repairing & Rs.8,71,000/- for earthwork
(ii) Rs.77752/- for Machinery
(iii) 60% of the (i) + (ii) above, i.e. Rs.12,35,752/- was recommended for the assistance, i.e. Rs.7,41,451/-.
A copy of the above agenda note is annexed herewith as ANNEXURE R-I to this Affidavit in Reply. However, the unit being a salt work, the DLC committee did not consider the assistance on expenditure of earthwork and approved building repairing expenses of Rs.2,87,000/- and Machinery repairing expenses of Rs.77,752/- totaling upto Rs.3,64,752/- and subsidy @ 60%, i.e. Rs.2,18,851/- was sanctioned. During the above DLC meeting, the representative of Industries Association, being a member was also present. The abstract of minutes of DLC meeting is as attached with the petitioner's petition at Annexure-F. On execution of prescribed agreement by the petitioner to accept and avail sanctioned relief and concessions under the scheme, the same had been paid by the DIL Rajkot to the petitioner.”
Paragraphs No.2 and 3 of the reply affidavit dated 27.4.2012 read thus:
“2. It is said and submitted that in view of the A.G.
Audit, this office had initiated the recovery process in case of the units which were paid assistance, a portion of which was found to be ineligible and therefore, excess; by the A.G. Office.
3. It is said and submitted that following the due procedure for government recoveries, this office had issued notices to the units from which the recovery had to be made, copies of which are attached herewith as annexure R1. On not getting the recoveries from such units, this office had issued Revenue Recovery Certificates (referred hereinafter as R.R.C.) and passed them on to the District Collector for initiating recovery of the govt. dues as land revenue arrears as per the applicable provisions of the Act concerned. The copies of such R.R.C. certificates are attached herewith as Annexure R2, for the kind perusal of this Hon. Court.”
9. I have considered the submissions made by the advocate for the petitioner and learned AGP and I have also examined the material available on record.
10. On perusal of the reply by the respondent authorities and from the submissions by the learned AGP, it appears that the respondent authorities have not considered the petitioner's claim towards loss/damages to the earthworks and the expenses incurred by the petitioner for repairing of earthwork.
11. Any material in support of the decision to exclude and to not consider the claim towards earthwork is not placed on record. It appears that the only document in light of which the decision had to be, and is required to be, taken is the resolution dated 5.3.2001. On perusal of the said resolution, it emerges that it does not contain any provision or instruction that loss/damage of any particular type is to be excluded or expenditure towards repairs, etc. or on any particular items are to be excluded.
11.1 The government resolution actually does not contain list of the items which should be included/considered or which should be excluded.
11.2 Under the circumstances, it cannot be accepted that the concerned authority has taken decision on the basis of or in light of the conditions or specifications or guidelines under resolution dated 5.3.2001.
11.3 If there are any other guidelines or instructions issued by the competent authority for taking decision as regards diverse claims, then such material is not made available on record of present petition until now and that, therefore, it could not be taken into consideration for the purpose of present order.
11.4 It is noticed that the resolution dated 5.3.2001 refers to loss/damage caused to the plant, machinery, foundation, etc. In case of salt work, salt panes are akin to 'plant' in any other industry and ought to be treated as 'plant' for salt works and there would be no justification to restrict the meaning of the term 'plant' used in the resolution dated 5.3.2001 so as to mean 'constructed plant' as ordinarily understood when the term 'plant' is considered and/or when the term 'plant' is used with reference to 'plant and machinery'.
12. Admittedly, the competent authority has not considered the expenditure and loss/damage to the earthwork which would include the loss/damage and repairing work of the aforesaid items.
13. As mentioned above, any guideline or instruction to exclude the said aspect is not placed on record.
14. This Court is conscious about the limitation on jurisdiction of writ court in a writ petition under Article 226. The Court would not venture into determining the extent of damage/loss suffered by the petitioner and/or its quantification or even into the field of deciding as to which items should be taken into consideration and which items should be excluded. The said and such decisions are required to be taken by the competent authority appointed by the respondent State for the said purpose.
15. However, so as to find out whether such exclusion is provided or not, the Court – despite such restraint – can certainly examine the policy, on which the decision is allegedly based.
16. A policy which is framed for allowing relief to force majeure victims / victims of natural calamity e.g. earthquake victims, has to be interpreted holistically so as to further and advance its object and spirit and not in a manner which would artificially restrict its scope.
17. In light of the resolution dated 5.3.2001, it is abundantly clear that the resolution does not exclude loss/damage and cost of repairs, etc. in respect of earthwork and/or to other items e.g. reservoir, masonry, flooring, plastering, patch work, roofing work, etc. and the impugned decision does not appear to be justified and/or based on said resolution or any other guideline or instruction issued for the said purpose, more particularly because the said items are not excluded by the resolution dated 5.3.2001.
18. Under the circumstances, it appears that present petition can be disposed of with below mentioned clarification and direction.
19. The decision of the competent authority, which is impugned in present petition, is set aside and the case is remitted to the competent authority for fresh decision. It would be open to the petitioner to submit a detailed calculation (narrating item-wise details of loss/damage and expenditure, etc.) with supporting documents e.g. Government Approved Valuer's certificate and/or certificate by respondent No.3 on or before 12.10.2012, along with request-application to re-consider the decision and after such request-application is received, the competent authority will consider afresh the said application-request and the details furnished by the petitioner, without being influenced by the earlier order, however, in accordance with the resolution dated 5.3.2001 and other guidelines/ instructions which might have been issued by the competent authority in that regard. If there are any other guidelines/instructions issued by the competent authority, copy thereof shall be supplied to the petitioner. Appropriate decision shall be taken by the competent authority, after hearing the petitioner, within a period of 4 (four) weeks after receipt of the application-request by the petitioner. The decision shall be conveyed to the petitioner.
With the aforesaid clarification and direction, the petition is disposed of and partly allowed. Rule is made absolute to the aforesaid extent. No costs.
Direct Service is permitted.
(K.M. Thaker, J.) Bharat*