Allowed

Pepsico India Holdings Private Limited v. the State of Maharashtra and Ors.

Bombay HC26 Nov 2008WP/7064/2008

Case brief

AI extract

What is this about?

PepsiCo challenged a departmental order ignoring prior High Court directions and party submissions. The single-judge bench quashed the cryptic order for violating procedural mandates and directed a fresh decision with an opportunity for further written submissions within four weeks.

What did the court decide?

Impugned order dated 27-08-2008 quashed. Fresh decision to be made after petitioner submits fresh written submissions within four weeks. Speaking order required.

Pepsico India Holdings Private Limited… — Constitutional and Fundamental Rights | Bombay HC (2008)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.7064 OF 2008

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PepsiCo India Holdings Pvt. Ltd. V/s. The State of Maharashtra & Ors.

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..... Petitioner

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.....Respondents

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Mr.G.S. Jetly, Sr.Counsel, for the petitioner. Mr.V.A. Sonpal, A.G.P., for respondent Nos.1 to 5.

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CORAM : SHRI P.B. MAJMUDAR & SHRI J.P. DEVADHAR, JJ.

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DATED : 26^th NOVEMBER, 2008.

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ORAL ORDER ( PER P.B.MAJMUDAR, J)

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Rule.

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The learned A.G.P. waives service of rule for respondent Nos.1

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to 5. With the consent of the learned Advocate for the petitioner and the learned A.G.P., the matter is taken up for final hearing.

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By filing this petition, the petitioner has challenged the addendum dated 07-07-2004 (Exh.H) as well as the order dated 27-08-2008 which is at Exh.X. So far as the order dated 07-07-2004 is concerned, the incentive granted to the petitioner under Package Scheme of Incentive was reduced.

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The petitioner had initially challenged the said order by filing Writ Petition before this Court bearing No.7146 of 2006 and the Division Bench of this Court, to which one of us (J.P. Devadhar, J) was a party, by its order dated 17-11-2006 directed the Development Commissioner to decide the representation of the petitioner dated 10-05-2005. Relevant observations of the Division Bench in the said judgment reads as under : -

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“5. Accordingly we direct the Development Commissioner to decide this representation dated 10^th May 2005 within four weeks hereafter. In the event the petitioner wants to add anything more, it will be permitted to make a further written submissions which the petitioner may make within one week hereafter.

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Before arriving at a decision, the Development

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Commissioner will call the representatives of the petitionercompany to attend before him and permit them to make any oral representation, if they want to make it.”

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It is required to be noted that even though the Division Bench earlier directed the Development Commissioner to decide the representation by permitting the petitioner to make further written submissions in connection with the subject matter. By way of a cryptic order of two lines, the Additional Director of Industries, for Development Commissioner (Inds), has confirmed the earlier decision dated 7^th July, 2004 by the impugned order dated 27-08-2008. The petitioner has challenged the said decision by way of this petition.

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The learned counsel for the petitioner vehemently submitted that

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when the High Court has passed specific order earlier, asking the Development Commissioner to pass afresh order after considering the representation of the petitioner in this behalf, the concerned officer has passed the impugned order in a very casual manner and the said order has been passed without taking into consideration the say/submissions of the petitioner.

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On the other hand, the learned counsel for the respondents submitted that it is true that the impugned order at Exh.X cannot be said to be a speaking order, but he states that on merits he can justify the action of the department.

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We have heard both the learned counsel appearing in the matter and have gone through the writ petition and documents forming part of the petition. In our view, the Additional Director of Industries has passed a very cryptic order without taking into consideration the observations made by the Division Bench in the earlier order. Least respect has been shown by the concerned Officer in connection with the earlier order passed by this Court. In our view, the observations of the Division Bench have been

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treated in a summary manner by making only reference of the writ petition in the subject matter. It is expected of an Officer of such a rank to decide the matter after considering the various submissions and the High Court order should not be treated in such a casual way by not even observing the submissions made by the petitioner in the said order. When the High Court had directed the concerned Officer to decide the matter, after hearing the petitioner, the Officer was required to give detailed reasons in the order. It seems that the Officer has tried to complete the formality only by passing the order. Prima facie, the order passed by the Officer is in clear violation of the directions of the High Court regarding passing the order after hearing the petitioner. The way in which the order has been passed, one can safely said that the concerned Officer has passed the order ignoring the observations of the High Court order and in a given case, it may even amount to contempt of this Court's order. When the matter is sent back to the Officer with certain observations, the observations made by the High Court in its order should be taken into consideration in an appropriate way. The concerned Officer could not have passed the order in such a cavalier and casual manner. Even the observations of the High Court is required to be taken into consideration in an appropriate manner and such observations cannot be taken so lightly or even without taking the same into account while passing the order. We

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express our displeasure for the way in which the matter has been dealt with by the concerned Officer. We hope that in future, appropriate care will be taken by the concerned Officers while deciding the cases keeping in mind the observations of the High Court while passing the order and the observations made by the Court's order should be properly reflected in the order itself.

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Considering the aforesaid aspect of the matter and the fact that the impugned order is passed, which cannot be said to be a speaking order and the observations made by this Court in the judgment dated 17-11-2006 have not been taken into account, nor the submission of the petitioner at the time of taking decision was taken into consideration, the impugned order at Exh.X dated 27-08-2008 is quashed and set aside. The Additional Director of Industries, for Development Commissioner (Inds) is now directed to take a fresh decision in connection with the representation of the petitioner in accordance with law and before passing fresh order, the petitioner is permitted to make a fresh written submissions before the concerned Officer within a period of four weeks from today. Needless to say that the concerned officer shall pass fresh order after giving opportunity of being heard to the petitioner and ultimate decision may be taken by passing a speaking order. It is clarified that we have not

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expressed any opinion on the merits of the issue and it is for the concerned officer to take appropriate decision as per law and such decision shall be communicated to the petitioner forthwith. If such decision is against the petitioner, it will be open to the petitioner to challenge the same in accordance with law.

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In the meanwhile, even if any decision is taken, the same may not be enforced against the petitioner in connection with the curtailment of the benefits under the Entitlement Certificate, till the decision is taken on the representation as indicated in the order. Rule is made absolute only to the aforesaid extent.

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( J.P.DEVADHAR, J. ) ( P.B.MAJMUDAR, J. )

Pepsico India Holdings Private Limited v. the State of Maharashtra and Ors.

Case brief

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Pepsico India Holdings Private Limited v. the State of Maharashtra and Ors.

Case brief

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