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2020 DIGILAW 344 (JHR)

Geeta Weigh Bridge v. State of Jharkhand

2020-02-20

RAVI RANJAN, SUJIT NARAYAN PRASAD

body2020
JUDGMENT : The instant intra-court appeal is under Clause 10 of the Letters Patent directed against the order/judgment dated 12.09.2019 passed in W.P.(C) No. 2553 of 2010 by learned Single Judge of this Court whereby and whereunder the order impugned dated 29.03.2010, passed by Respondent No.2 Secretary, Department of Industries, Government of Jharkhand, has been declined to be interfered with by which the appeal preferred by the writ petitioner being Appeal No. 5 of 2009 challenging the order of cancellation dated 29.07.2008 passed by the Respondent No.3 – Adityapur Industrial Area Development Authority, in short AIADA, as also refusing to interfere with the order dated 29.07.2008 passed by the Respondent No.3 by which the allotment of Plot No. 12(P), 5th Phase, Industrial Area, Adityapur measuring 7,500 sq. ft. in favour of M/s. Geeta Weigh Bridge was cancelled and the amount deposited towards the cost of land has been forfeited. 2. The brief facts of the case which require to be enumerated and which are proper for the lis, read hereunder as :- The land measuring 7,500 sq. ft. situated at Plot No. 12(P), 5th Phase, Industrial Area, Adityapur on payment of Rs.26,980/- was allotted to the petitioner vide Allotment Order No. 367/ADA dated 12/13.03.1997. The possession of the land was delivered in favour of the petitioner on 21.03.1997. According to the petitioner, the factory plan as per the terms and conditions of the Allotment Order for approval in triplicate copies was submitted on 05.04.1997. The respondent AIADA issued a show cause notice dated 11.11.1997 to the writ petitioner and in response to the show cause notice, the writ petitioner made reply that three copies of factory plan were already submitted but as yet no decision about the approval of the aforesaid plan has been received and, therefore, no work could be done over the allotted land and as such, request was made to approve the factory plan at the earliest so that necessary action can be taken. It is the further case of the writ petitioner that similar requests were made on several occasions but no decision was taken. In the result, the purpose for which the plot was allotted could not be achieved due to non-commencement of the project because of the laches on the part of the authorities. It is the further case of the writ petitioner that similar requests were made on several occasions but no decision was taken. In the result, the purpose for which the plot was allotted could not be achieved due to non-commencement of the project because of the laches on the part of the authorities. It is the further case of the writ petitioner that all of a sudden the order of allotment was cancelled with the forfeiture of the earnest money deposited that too, without issuing any notice and as such the order of cancellation is not sustainable for want of violation of principle of natural justice and also for no fault committed on the part of the writ petitioner. 3. While on the other hand, the case of respondent – AIADA as has been agitated by way of counter affidavit filed before the writ court is that the question of maintainability of writ petition itself was raised on the ground that the writ petition was filed by M/s. Geeta Weigh Bridge through its partner Sri Ashish Agarwal and according to respondent – AIADA since Sri Ashish Agarwal is not the allottee of the plot in question, rather the plot was allotted in favour of Smt. Geeta Devi as the Proprietor of the firm, wife of Sri Amod Prasad Ram, Proprietor of M/s. Geeta Weigh Bridre, on 13.03.1997 and, therefore, Sri Ashish Agarwal through whom the writ petition was filed was having no locus standi to file the writ petition. It is the further case of respondent – AIADA that the said Ashish Agarwal claims himself to be a partner of M/s. Geeta Weigh Bridge whereas the respondent – AIADA has never allowed or permitted for change in the constitution of the firm which is the pre-condition as per Clause 7 of land allotment order as also in pursuance to clause 6(ii) of the lease deed and as such, as per the above clauses of the allotment order and the lease deed, if nature of the firm is to be changed, it is with the consent of the respondent – AIADA but having not done so, the said Ashish Agarwal, who claims to be partner of M/s. Geeta Weigh Bridge, is having no locus to question the cancellation of allotment since the allotment was not made in favour of the partner of M/s. Geeta Weigh Bridge. Further ground has been taken in the counter affidavit that due notice was issued to Smt. Geeta Devi, the proprietor of the firm which was received by said Geeta Devi. It has been stated that after cancellation of the allotment, the said plot has already been allotted in favour of M/s. Vencon Industries after completing all the formalities but very surprisingly the new allottee M/s. Vencon Industries has not been impleaded party to the writ petition. Further, the order of cancellation has also been sent to Smt. Geeta Devi on the address of the Unit and was affixed on the wall of the Unit. 4. The writ court, after considering the rival submissions of the parties has declined to interfere with the impugned order by dismissing the writ petition, however, directing the respondent – AIADA to indemnify with respect to the cost incurred by the petitioner, namely Ashish Agarwal in construction of the boundary wall over the said plot. 5. Mr. Amritansh Vats, learned counsel appearing for the appellant – writ petitioner has assailed the aforesaid order mainly on the ground that there is violation of principle of natural justice since, according to him, no prior notice was issued before cancellation of the allotment and further on the ground that it is the laches committed on the part of the authority in not approving the project. 6. Mr. R.C.P. Sah, learned counsel appearing for the respondent – AIADA, on the other hand, has defended the order passed by the writ court inter alia on the ground that the writ petition since has been filed by Sri Ashish Agarwal who happens to be the partner of M/s. Geeta Weigh Bridge but the allotment was made in favour of the proprietor of the firm i.e., Smt. Geeta Devi and after allotment of the land, the proprietory firm has been changed to that of partnership firm and therefore the condition of the allotment order has seriously been flouted that too, without any permission from the AIADA and as such, the allotment since was made in favour of the proprietor of the petitioner establishment, hence the partner namely Sri Ashish Agarwal is having no locus to assail any decision of the AIADA. Further, the project was never submitted by the petitioner M/s. Geeta Weigh Bridge through its proprietor Smt. Geeta Devi, rather it was submitted through its partner namely Sri Ashish Agarwal and hence the said project has rightly not been approved since the condition of allotment has seriously been violated. So far as the ground about violation of principle of natural justice is concerned, submission has been made that there is no question of issuance of show cause notice upon Sri Ashish Agarwal since he is not a party to the agreement. Rather, the notice was issued upon proprietor of the petitioner unit, i.e., in favour of Smt. Geeta Devi who had received the same, as would be evident from the stand taken in the counter affidavit which has not been reverted by the writ petitioner. According to learned counsel for the AIADA, after taking into consideration all these aspects of the matter, learned Single Judge has rightly not interfered with the impugned decision hence the order impugned may not be interfered with. 7. This Court, after having heard the learned counsel for the parties and on appreciation of their rival submissions, has found some admitted facts that the land in question was allotted in favour of M/s. Geeta Weigh Bridge through its proprietor namely Smt. Geeta Devi, in pursuance to the land allotment order No. 367/ADA dated 12/13.03.1997. It is evident from the land allotment order which contains a condition at Condition No.7 whereby and whereunder it has been stipulated that prior to making any change in the constitution of the firm as partnership, private limited company etc., the allottee will have to obtain written permission of the authority. If the land has been allotted to the unit as proprietory concern, the same may be changed into partnership or private limited or limited company, but prior consent of the authority will have to be obtained for the purpose. The aforesaid provision is being reproduced hereunder for ready reference :- “7. That the allottee will have to obtain written permission of the Authority, prior to making any change, in the constitution of the firm (as partnership, private limited co. etc.), if the land has been allotted to the unit as proprietory concern, the same may be changed into partnership or private limited or limited company, but prior consent of the authority will have to be obtained for the purpose.” 8. etc.), if the land has been allotted to the unit as proprietory concern, the same may be changed into partnership or private limited or limited company, but prior consent of the authority will have to be obtained for the purpose.” 8. It is also not in dispute that proprietory firm has been converted to that of a partnership firm as would be evident from the deed of partnership inducting Sri Ashish Agarwal as one the partner. 9. Admittedly, the proposal for its approval was submitted by Sri Ashish Agarwal, in the capacity of partner of the petitioner unit but no proposal was submitted by the proprietor of the petitioner unit namely, Smt. Geeta Devi. 10. The stand taken by the writ petitioner that laches not lies in its part in not commencing the project on account of the fact that the proposal for approval of the project had already been submitted but it was not approved by the authority while on the other hand, the respondent – AIADA has taken the plea that such proposal was rightly not considered on account of the reason that the same was submitted not by the proprietor of the petitioner unit who has entered into an agreement with the respondent – AIADA but it was submitted by Sri Ashish Agarwal who, subsequent to the agreement, entered into the picture and therefore, Sri Ashish Agarwal was having no locus to submit any proposal for its approval, the same has not been taken into consideration. 11. This Court, after considering the aforesaid submission is of the view that the contention which has been raised by the learned counsel appearing for the respondent – AIADA cannot be disagreed to, it is for the reason that as per the condition of land allotment order, as contained in Clause 7 quoted hereinabove, it restricts the allottee to change the constitution of the firm save and except with the prior written permission of the authority. Admittedly, no such permission has been brought on record and it is the admitted case of the writ petitioner namely Mr. Ashish Agarwal, that no such permission was obtained from respondent – AIADA. 12. Admittedly, no such permission has been brought on record and it is the admitted case of the writ petitioner namely Mr. Ashish Agarwal, that no such permission was obtained from respondent – AIADA. 12. The authority after knowing about the fact that the proposal for approval of the project was not submitted by the proprietor of the petitioner unit and further coming to know about the fact that Clause 7 of the land allotment order was flouted by changing the constitution of the firm from proprietory to that of the partnership as also the project has not been commenced, issued show cause notice to Smt. Geeta Devi on her address, as would appear form the stand taken by the respondent – AIADA at paragraph 10 to the counter affidavit, and not to Sri Ashish Agarwal and rightly done so as because Sri Ashish Agarwal had no locus to be heard prior to cancellation or taking any adverse decision by the respondent – AIADA and, therefore, notice was issued to Smt. Geeta Devi, the proprietor of the petitioner unit, in whose favour the land in question was allotted and it was received by Smt. Geeta Devi. The statement as has been made at paragraph 3A of the rejoinder filed in the writ petition to the effect that M/s. Geeta Weigh Bridge, the petitioner unit, has been represented by Sri Ashish Agarwal in the capacity of partner for which Smt. Geeta Devi and Sri Ashish Agarwal has entered into deed of partnership on 24.04.2008, therefore, the fact about service of notice to Smt. Geeta Devi has not been disputed. 13. In view thereof, according to considered view of this Court, the plea which has been agitated by the learned counsel for the appellant that adverse decision has been taken against it without following the principle of natural justice has got no substance, rather the show cause notice was issued to Smt. Geeta Devi but no reply was furnished and she had chosen not to appear before the respondent – AIADA. 14. The learned Single Judge, after considering the entire aspect of the matter, has declined to interfere with the impugned order and hence this Court has found no reason to show any interference with the same. 15. 14. The learned Single Judge, after considering the entire aspect of the matter, has declined to interfere with the impugned order and hence this Court has found no reason to show any interference with the same. 15. Further, so far as the cost which is said to have been incurred by the said Sri Ashish Agarwal is concerned, the order has been passed to indemnify and the said part of the order since is not being assailed by the respondent – AIADA, therefore, this Court is not making any remark upon that. 16. In that view of the matter, the appeal fails and accordingly dismissed.