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2005 DIGILAW 255 (CAL)

W. J. ALCOCK AND COMPANY PRIVATE LIMITED v. EXECUTIVE DIRECTOR, WEST BENGAL SMALL INDUSTRIES DEVELOPMENT CORPORATION LIMITED

2005-04-18

SOUMITRA PAL

body2005
SOUMITRA PAL, J. ( 1 ) THE petitioner, a private limited company, by virtue of a registered indenture of lease dated 14. 8. 69 executed between the Cottage and Small scale Industries on behalf of the State of West Bengal and the petitioner, was granted lease for a period of 99 years commencing from 1. 9. 68 in respect of a shed Y-30 in an industrial estate. The said lease deed which has been annexed to the writ petition provided for payment of rent. Clause 3b of the lease deed also provided that if the rent was unpaid for six months after becoming payable or if the premises was not used for a continuous period of six months for the purposes mentioned, the lessor or the Government could at any time determine the lease and reenter the premises. Clause 3 (vi) (b) of the said lease stipulated that the lessee, that is, the petitioner after expiry of 30 years from the date of commencement of the lease and after having fully paid all the dues would have the option to acquire ownership of the shed and structures. Thereafter, on compliance of certain conditions the petitioner would be deemed to be the full and absolute owner of the shed. It is stated that the petitioner had deposited arrear rent for the first 30 years out of 99 years of the tenure of the lease. On 5. 2. 2001, in accordance with the terms of the lease, the petitioner exercised its option to acquire ownership of the said shed. Pursuant to the option exercised, the Officer on special Duty on 13. 8. 2002 addressed a letter to the Managing Director, west Bengal Small Industries Development Corporation Limited (for short "the WBSIDC") requesting him to take necessary action as per the terms and conditions of the lease. Failing to receive reply, the petitioner on 18. 2. 2003 addressed a letter praying for ownership of the shed, enclosing therein copy of the letter dated 13. 8. 2002, copy of the SSI registration certificate, names of the directors and the volume of turn over. Thereafter, on 11. 4. 2003 the respondent No. 1 requested the petitioner to liquidate the outstanding dues on account of rent and interest upto 31. 3. 2003. 8. 2002, copy of the SSI registration certificate, names of the directors and the volume of turn over. Thereafter, on 11. 4. 2003 the respondent No. 1 requested the petitioner to liquidate the outstanding dues on account of rent and interest upto 31. 3. 2003. Request was also made to submit the SSI registration certificate, the details of share holding pattern, annual production return submitted to the DIC and form 32, if there was any change of directorship. On 27. 5. 2004, the respondent No. 1 again requested the petitioner to submit necessary papers along with the payment. On 17. 6. 2004, in reply, it was intimated that necessary documents had already been submitted. However, the respondent No. 1 by a letter dated 27. 9. 2004 rejected the request of the petitioner exercising option on the ground that the unit was reported to be lying non-functioning for more than one year and notice in form 'a' terminating the lease and intimating to vacate the shed was served on the petitioner. The petitioners, being aggrieved by the said letter dated 27. 9. 2004, and the form 'a1 moved the writ petition. ( 2 ) PURSUANT to directions affidavits have been filed. On 18. 10. 2004 an interim order was passed. It was submitted by the respondents that though interim order had expired, the respondents have not taken any action since the writ petition is pending. ( 3 ) MR. Soumen Sen, learned Advocate for the petitioner, reiterating the statements in the writ petition submitted that the letter dated 27. 9. 2004 is not a speaking order. According to him, there is no indication in the letter as to how the respondents came to the conclusion. Moreover, as the option for ownership for the shed had been exercised in 2001, the said letter and the notice are illegal. According to Mr. Sen, from February, 2001 till June, 2004 there was no allegation by the respondents that the unit was not functioning. Reference was made to the certificate dated 11. 6. 91 issued by national Small Industries Corporation the letter dated 10. 2. 2000 issued by the Defence Research and Development Organisation and the letter dated 21. 1. 2004 issued by Naval Materials Research Laboratory in support of the claim that the unit was registered and functioning. Reference was made to the certificate dated 11. 6. 91 issued by national Small Industries Corporation the letter dated 10. 2. 2000 issued by the Defence Research and Development Organisation and the letter dated 21. 1. 2004 issued by Naval Materials Research Laboratory in support of the claim that the unit was registered and functioning. Further, it was argued that the statements made in paragraphs 8 to 18 which disclose certain facts have not been dealt with by the respondents in paragraph 3 of the affidavit in opposition. In the said paragraph of the opposition there is no specific denial of the facts stated in the writ petition. According to him, it is an omnibus denial and is hit by the principles of doctrine of non-traverse. Mr. Sen relied on the judgements of Sushanta Kumar Basak v. State of West Bengal and ors. , reported in (1984)2 Cal LJ 19 and Sahu Jain Ltd. v. Deputy Secretary ministry of Finance and Ors. , reported in 70 Cal WN 399 in support of his contentions. ( 4 ) APPEARING on behalf of the respondents Mr. Sarkar submitted that from a perusal of the electricity bills annexed to the writ petition it is apparent that the unit is not functioning. From the petition itself it is evident that the certificate of registration had lapsed during 1981 and the notice is just, proper and correct. There are outstanding dues. Thus, the petitioner cannot exercise option and is not eligible to acquire ownership of the shed and structures. So far as the order dated 27. 9. 2004 is concerned it was submitted that after getting necessary information from the concerned officers, the letter along with the form 'a' had been issued. According to him, the contention regarding the doctrine of non-traverse is without any basis as the averments made in paragraphs 8 to 18 of the writ petition have been dealt with adequately in paragraph 3 of the affidavit in opposition and the allegations have been controverted. Reliance was placed on the judgements in Union of India v. Pandurang Kashinath More reported in AIR 1962 SC 630 and Hari Singh and ors. v. Dharam Singh and Anr. , reported in AIR 1980 Delhi 316 in support of his contentions. ( 5 ) I have heard the learned Advocates for the parties. ( 6 ) THE short question is whether the letter dated 27. 9. v. Dharam Singh and Anr. , reported in AIR 1980 Delhi 316 in support of his contentions. ( 5 ) I have heard the learned Advocates for the parties. ( 6 ) THE short question is whether the letter dated 27. 9. 2004 and the form 'a' intimating termination of the tenancy and directing the petitioner to vacate the shed was just and proper. The letter dated 27. 9. 2004 which is under challenge is as under: sub : Ownership of our Shed No. Y-30 baltikuri Industrial Estate, Howrah. Ref : SSI/16/04/1 dt. 17. 6. 2004 dear Sirs, please refer to the above. We are constrained to state that question of giving ownership of Shed No. Y-30 at Baltikuri I. E. does not arise as your unit has been reported to be lying non-functioning in the shed for more than one year. Notice in Form 'a' is also being issued for non-functioning. Yours faithfully, for The W. B. Small Industries Dev. Corpn. Limited. (Executive Director) (Emphasis supplied) ( 7 ) IN this context let the facts be examined. It is not in dispute that the industrial unit of the petitioner was established in the year 1969 pursuant to the lease deed. The petitioner by letter dated 5. 2. 2001 under the lease exercised its option to acquire ownership of shed. Since there was no reply the petitioner issued a reminder. Significantly, the Officer on Special Duty addressed a letter dated 13. 8. 2002 to the Managing Director, WBSIDC which is as under: sub : Ownership documents of the shed No. Y-30 Industrial Estate, Howrah. Sir, with reference to the letter of M/s. W. J. Alcock and Co. (P) Ltd. vide No. SSI/16/02/1, dt. 28th June, 2002 addressed to you on the above subject. I am directed to request you kindly to take necessary action as per terms and conditions of the lease deed and also to send a reply immediately. (Emphasis supplied) ( 8 ) THEREAFTER, the petitioner furnished certain particulars as sought for. Ultimately the application of the petitioner was rejected by the letter dated 27. 9. 2004 on the ground that the unit was reported to be non- functioning for more than one year. In my view, the letter dated 27. 9. 2004 cannot stand the test of scrutiny. Undisputedly, the petitioner by letter dated 5. 2. 2001 had exercised option under the lease. 9. 2004 on the ground that the unit was reported to be non- functioning for more than one year. In my view, the letter dated 27. 9. 2004 cannot stand the test of scrutiny. Undisputedly, the petitioner by letter dated 5. 2. 2001 had exercised option under the lease. Since option was exercised it was incumbent upon the State authorities to dispose of the application with utmost expedition on the basis of the situation which existed during 2001. That there was delay in disposing of the application is borne out by the fact that the Officer on Special Duty by letter dated 13. 8. 2002 requested the Managing Director of the WBSIDC to take necessary action as per terms and conditions of the lease and also to send a reply immediately. Instead the authorities, even thereafter, dilly dallied for more than two years and ultimately on 27. 9. 2004 rejected the application of giving ownership on the ground that it was reported to be lying non-functioning for more than one year. It is apparent from the letter under challenge that the authorities were considering the situation which might have existed during the latter half of 2003 and 2004. In my view, it was highly improper as option was exercised in the year 2001. The petitioner cannot be made to suffer for the inefficiency on the part of the authorities, which is glaring. Moreover, from the letter dated 27. 9. 2004, I find reference has only been made to the letter dated 27. 6. 2004 but not to the letter dated 5. 2. 2001 exercising option or the subsequent letter dated 18. 2. 2003 furnishing particulars as sought for. Hence, the letter under challenge cannot stand as it ought to have dealt with the letters issued by the petitioner particularly the letters dated 5. 2. 2001 and 18. 2. 2003. ( 9 ) I am further of the view that the letter dated 27. 9. 2004 is cryptic and does not deal with the aspects raised by the petitioners. It does not indicate the basis of the report. Though the respondents in its affidavit claims to have made an inspection when it was found that the unit had ceased its operation and was under lock and key, the petitioner in its affidavit in reply controverts the statements and claims the unit to be functioning. It does not indicate the basis of the report. Though the respondents in its affidavit claims to have made an inspection when it was found that the unit had ceased its operation and was under lock and key, the petitioner in its affidavit in reply controverts the statements and claims the unit to be functioning. In my opinion, nobody disputes the authority of the State respondents to determine the lease under certain circumstances. However, while dealing with the application of the petitioner in terms of the lease, the respondent No. 1 was acting in a quasi judicial manner. Hence, in such circumstances if an order is passed affecting the rights of a citizen, it should contain reasons with reference to the facts and issues raised thus making it transparent. It is an accepted proposition that valid reason should the very basis of an order. Anything short of it smacks of arbitrariness, since the person affected by such an order does not know what prevailed upon the authorities in passing such an order. Absence of cogent reasons with reference to the facts and issues raised makes an order vulnerable and susceptible as I find in the instant case, it assumes significance as the authorities in its letters dated 11. 4. 2004 and 27. 5. 2004 never intimated that the unit was closed. ( 10 ) THUS, in view of the above, the letter dated 27. 9. 2004 and the Form 'a' being annexed to the writ petition are set aside and quashed. The respondent No. 1 is directed to consider the question of option exercised on 5. 2. 2001 under lease agreement on the basis of the situation which existed during 2001 and the observations made in this judgement. Such consideration shall be made by passing a reasoned order within a period of five weeks from the date of the communication of this order after hearing the petitioner. At the time of hearing the petitioner shall be at liverty to furnish documents, electricity bills, certificates in support of his contentions. The reasoned order shall deal with the contentions raised by the petitioner. Regarding the question whether the petitioner No. 1 had a valid registration is also a question of fact. At the time of hearing the petitioner shall be at liverty to furnish documents, electricity bills, certificates in support of his contentions. The reasoned order shall deal with the contentions raised by the petitioner. Regarding the question whether the petitioner No. 1 had a valid registration is also a question of fact. While the petitioner with reference to the documents at pages 61, 63 and 64 of the writ petition contends that the unit has a valid registration and is functioning, the respondents with reference to page 23 of the writ petition and the electricity bills contests the claim and contends otherwise. These are questions of fact which shall be dealt with by the respondent No. 1 at the time of consideration. ( 11 ) THE writ petition is thus allowed. ( 12 ) I make it clear that I have not gone into the merits of the case and all the points are kept open. Since the writ petition is allowed on the basis of the affidavits. I am of the view that it is not necessary to deal with the judgements which lay down propositions which are settled principles of law. ( 13 ) THERE shall be no order as to costs.