Jharkhand High Court
M/S Accropoly Metal Industries vs State Of Jharkhand & Ors on 25 April, 2012
Equivalent citations: 2013 (1) AJR 244, AIR 2013 (NOC) (SUPP) 268 (JHAR.)
Author: Prakash Tatia
Bench: Chief Justice, Aparesh Kumar Singh
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 204 of 2011
M/s Accropoly Metal Industries Private Limited ... Appellant
Versus
The State of Jharkhand and others ... Respondents
------
CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE APARESH KUMAR SINGH
------
For the Appellant : Mr. Sachin Kumar
For the Respondents.: G.P.I
Mr. C.A. Bardhan
Mr. Sumeet Gadodia
------
Reportable Dated 25th April, 2012.
Heard learned counsel for the parties.
2. The writ petitioner-respondent no.4, M/s Hardrock Fabrication Private
Limited, having its registered office at Phase-VI, Plot No. A-33/34 (P),
Jamshedpur applied for the allotment of a piece of land which is Plot No. M-10,
situated at IVth Phase, Adityapur Industrial Area having an area measuring 3.48
acres which was earlier alloted by the respondent Adityapur Industrial Area
Development Authority to the M/s Jamshedpur Steel Private Limited. The
petitioner's contention is that, it obtained a surrender deed from the said M/s
Jamshedpur Steel Private Limited and, thereafter, his case was considered for
allotment of the land by the Adityapur Industrial Area Development Authority (in
short-AIADA) and even after payment of more than Rs. 80 Lakhs to the M/s
Jamshedpur Steel Private Limited and after taking proceedings for allotment of
the land to writ petitioner respondent no.4, on 21.10.2009, the lease granted in
favour of the M/s Jamshedpur Steel Private Limited, was illegally cancelled by
the AIADA. The petitioner, therefore, preferred the writ petition to challenge the
order dated 21.10.2009 cancelling the lease of M/s Jamshedpur Steel Private
Limited and also sought relief in the form of direction to allot the said piece of
land in favour of the writ petitioner.
3. The present appellant was the non-petitioner in the writ petition and his
case was that before the writ petitioner obtained the deed of surrender from the
said M/s Jamshedpur Steel Private Limited- the said non-petitioner/appellant
obtained the surrender deed from the same M/s Jamshedpur Steel Private
2
Limited on 29.06.2009 and his project of establishment of industrial unit was
already approved by the AIADA and the writ petitioner, who are three in
numbers, out of whom the writ petitioner nos. 2 and 3 had no project at all, they
became rival claimants for the property. According to non-petitioner/appellant,
the appellant was entitled to allotment of the said piece of land.
4. Learned Single Judge after considering the rival contentions found that
AIADA is lessor of the plot of land in question and it allotted the land to
Jamshedpur Steel Pvt. Ltd., the non-petitioner no. 4 of the writ petition, who is
respondent no. 7 in the L.P.A. and lease of Jamshedpur Steel was cancelled by
order dated 21.10.2009, but AIADA has no legal procedure and the criteria for
allotment of land and if there are five or six industrial units to go through
scrutiny process of approval for projects of such units, then AIADA has no fixed
criteria as to whom the plot should be alloted. In view of the above, learned
Single Judge proceeded to issue following directions, which are in sub para (V)
of para 9, which is quoted as under :
(V) I, therefore, direct respondent no. 2 as under:
(a) Initially, advertisement will be given in three newspapers having
wide circulation, inviting applications from industrial units, who are
in need of the plot in question, i.e. M10, 4th Phase, Industrial Area,
Jamshedpur, along with area required, complete project report along
with Map, proposed investment in the establishment of the unit, no
objection certificate from pollution control board, chartered
accountant's report and such other relevant details, which are thought
fit by respondent no. 2.
b) Reserved price for the plot in question will be fixed by the
respondent no. 2, which will be published while inviting applications
from the industrial units.
c) These applications will be considered by respondent no. 2 by
appointing proper committees, like Project Approval Committee or
Land Approval Committee or such other committees constituted by
respondent no. 2 and the list of industries, which get through the
scrutiny process, will be prepared.
d) After preparing aforesaid list, public auction will be held from
amongst the aforesaid short listed industries.
e) The industrial unit, which is offering the highest price for the land
in question, will be alloted the plot, in question.
f) So far time limit is concerned, respondent no. 2 is directed as under:
(i) Publication of notice inviting applications from the
industrial units will be made within a period of four
weeks.
3
(ii) Scrutiny of the applications will be made by
respondent no. 2 or by the committees appointed by the
respondent no. 2 within a further period of four weeks
and thereafter,
(iii) within a further period of 6 weeks the auction process
will be completed.
(g) The aforesaid guideline is given by this Court because
respondent no. 2 has no fixed procedure to be followed for
allotment of industrial plots. The aforesaid arrangement
will be continued till the exact procedure for allotment of
the industrial plots will be finalized by respondent no. 2.
(h) The aforesaid procedure will be valid for the plot in
question, i.e. M10, situated at 4th Phase, Industrial Area,
Jamshedpur, District East Singbhum, and measuring 3.48
acres.
5. Aggrieved against the order of the learned Single Judge dated 10 th May,
2011, passed in W.P. (C) No. 1213 of 2010, this L.P.A. has been preferred by
the appellant-non-petitioner. The matter was taken up by this Court initially on
13.07.2011and after hearing the argument of the parties, this Court observed as under:
"............. It is admitted case that plots given after cancellation and surrender are not notified nor applications are invited thereafter. The application can be submitted even prior to availability of the land and the project can be approved by the AIADA and direction can be issued to the said applicant to search out the appropriate plot for himself. Primafacie, entire procedure appears to be quite strange for which a reasonable notice is required to be given to AIADA to explain how they are dealing with the property vesting with them and for which they have granted lease in favour of the industrialists and who have defaulted and for all these issues, it will be appropriate to look into the entire record of the plot no.M10, 4th Phase, Industrial Area, Adityapur, Jamshedpur wherein the cases of the writ petitioners and present appellant have been considered and orders may have been passed by the competent authority so as to know the level at which decisions are taken in this particular case. Therefore, Adityapur Industrial Area Development Authority (AIADA), Jamshedpur is directed to submit the original record of plot no.M10, 4th Phase, Industrial Area Adityapur, Jamshedpur along with all proceedings taken at the request of both the parties i.e., appellant and writ petitioner as well as if any order was passed for the defaulting company and they may also disclose that these transactions of payment to the Bihar State Financial Corporation and the surrender of plot of the defaulting company and acceptance of the land in 4 question was in consequence to the decision taken by the competent authority of AIADA."
6. This Court also passed an interim order directing the respondents that no further proceedings be taken with respect to the plots in dispute. After above order dated 13.07.2011, the AIADA submitted supplementary counter affidavit and this Court observed that, after going through the provisions of the Bihar Industrial Area Development Authority Act, 1974, and Rules framed thereunder i.e., Bihar Industrial Area Development Authority Rules, 1981, the Court was of the considered opinion that, prima-facie, it is a case where the Government land is allowed to be distributed without there being any transparency, fairness as well as may be at the loss of the State exchequer and the industrial plots which have been originally allotted or subsequently allotted after cancellation of the original allotment of industrial plot of any other prior allottee, that is given only by absolutely discreet method and, this fact has been admitted in the counter affidavit of the AIADA filed after the order of this Court referred earlier. This Court also observed that it is also doubtful whether AIADA has framed any Rules as provided under Section 15 of the Act of 1974 with prior approval of the State Government by publishing a Resolution in the Official Gazette for carrying out the purpose of the Act of 1974 ? Finding such procedure which has been indicated in the counter, is in the process, for allotment of industrial plots in industrial area by AIADA, then AIADA was asked to show-cause why their allotment of land may not be stayed till they frame a proper Rules or Regulations for allotment of land under the Act of 1974. This Court also issued notice to the State Government for this purpose so that the State Government may also give its stand.
7. After the order dated 12th October, 2011, the matter again taken-up for consideration on 15th February, 2012 and this Court found necessary to serve notice upon respondent no. 7, Jamshedpur Steel Pvt. Ltd also, who was defaulter and whose almost all known liabilities for this unit were cleared from money of the either of the petitioner or of the respondents and he did not choose to challenge the order of cancellation of lease even after getting the money running in more than Rs. 80 Lakhs from only one party and who left two parties 5 to fight out and win the plot. After taking note of the contents of the earlier orders, this Court on 15th February, 2012 found that in the supplementary counter affidavit of the AIADA, annexed a decision dated 30.09.2011, alleged to have been taken to meet with the objections and observations made by this Court. The State Government also submitted an affidavit on 28.11.2011, wherein, it has been stated that, "in this view of the matter, the State Government agrees with the stand taken by the Adityapur Industrial Area Development Authority." This Court questioned how and under what circumstances and who has given this approval to the stand of the AIADA on behalf of the State Government but that has not been answered by the State.
8. In the facts and circumstances referred above, this Court observed that the decision dated 30.09.2011 is nothing but is a decision taken in the same line which allows allotment of industrial plots, totally arbitrary by the AIADA and that too, to the blue eyed persons, obviously of the officers of the AIADA, in discriminating manner and even in the matter where AIADA has power not only to cancel the leases but to take possession of the industrial plots. In view of the above reasons, a blanket stay order was passed by this Court that till the decision of this L.P.A., the AIADA shall not proceed to finalize any proposal for any transfer of the industrial plots vesting in it or it may vest in it because of the cancellation of the lease made by the AIADA or surrender of any lease.
9. We may recapitulate that, in impugned order of learned Single Judge, it has been held that virtually there is no procedure of allotment of plot by the AIADA and there is no guidelines, therefore, the AIADA may proceed to allot the plot in dispute after following the directions/guidelines(quoted above) issued by the learned Single Judge for allotment of industrial plots.
10. Therefore, in the L.P.A. preferred by one of the non petitioner in the writ petition, above issue of legality in the matter of allotment of industrial plots by AIADA has come-up for consideration before this Court. Before considering the issue, this Court made observations in the order referred above and gave opportunity to AIADA as well as the State Government to show what is the procedure for allotment of the industrial plots in industrial area of AIADA? 6
11. Learned counsel for the AIADA as well as learned counsel for the Managing Director, AIADA separately appeared and placed reliance upon the contentions which have been made in the counter affidavit filed on 10.4.2012. The stand of the AIADA and its Managing Director will be considered in detail. However, before that, it may be relevant to mention here that, on behalf of the State, learned counsel for the State submitted that they are supporting the stand of the AIADA. Therefore, whatever is the policy and procedure in the matter of implementation of the industrial policy of the State and giving effect to the Act of 1974 and Rules of 1981 framed under the Act of 1974, the procedure as given in the counter affidavit dated 10.4.2012 and procedure as given in the brochure as well as procedure as given in the authorities Board Meeting dated 30.9.2011 is the only procedure for allotment of Industrial Plots in Adityapur Industrial Area, which is said to be most important and valuable Industrial Area in the entire State of Jharkhand.
12. At the outset and before mentioning the argument of the learned counsel for the AIADA and learned counsel for the Managing Director, AIADA as well as learned counsel for the State we may straight way state that the stand taken by these three authorities are not only strange but shocking which have been advanced not only orally but has been made in writing in the counter affidavit dated 10.4.2012. In counter affidavit it has been admitted as :-
"It is admitted case now by the AIADA that AIADA has been established to achieve the object "to provide for planned development of industrial area"
and "promotion of industries and "matters appurtenant thereto" as mentioned in the preamble of the Bihar Industrial Area Development Authorities Act, 1974."
Yet learned counsel appearing for the Managing Director of the AIADA, who in view of the delegation of power, is the Authority responsible under Section 2, very rightly submitted that the object referred above is the object of the Act and purpose of the Act is only, as enumerated in the Sub Clause (a) to
(e) of Section 14 and according to learned counsel, the provision "to carrying out the purpose of this Act", has limited meaning and purpose and to the extent provided, either in Section 14 or in Section 15 and the subject of allotment of 7 land is not covered and therefore, State or Authority frame rules for allotment of industrial plots ! Sections 14 and 15 are as under:
14. The State Government may, by Notification in the Official Gazette, make Rules to carry out the purposes of this Act and in particular provide for
(a) removal of encroachments on lands belonging to the Authority;
(b) removal of unauthorized structures;
(c ) demolition of buildings which may interfere with the planning or which may have been erected in contravention of the Regulation of the Authority;
(d) the submission of reports and returns by the Authority to the State Government on matters relating to the duties, powers and responsibilities of the Authority;
(e) the issue of directions by the State Government laying down broad principles for the fulfillment of aims and objects of the Act.
15. The Authority may, with the prior approval of the State Government, by a Resolution published in the Official Gazette, make Regulation to carry out the purpose of this Act."
13. On the courts drawing attention, learned counsel for the Managing Director, AIADA read Sub-Section 2 of Section 6 of the Act, whereunder, duty of allotment of plots and the power of cancellation of such plots has been given to the Authority. Sub-section 2 of Section 6 is as under :
"6. General duties and powers of the Authority: (1)................
(2) The Authority shall be responsible for planning, development and maintenance of the Industrial Area and amenities thereto and allotment of land, execution of lease and cancellation of such allotment or lease, realization of fees, rent, charges and matters connected thereto."
14. Therefore, we cannot accept the argument of the learned counsel for the Managing Director, AIADA that in the Act and the Rules there is no provision which gives power to frame Rule for allotment of Industrial Plots of AIADA. As per sub Section 2 of Section 6, the Authority is responsible for planning, development and maintenance of Industrial area and specifically for allotment and cancellation of plots. Rule making power of the State Government shows that the State Government may make rules to carry out the purposes of the Act and we cannot accept the contention of learned counsel for the Managing Director of AIADA that use of the words in Section 15 of the Act and "in particular provided for" in Sub-Clause (a) to (e) under Section 14 of the Act of 8 1974, indicate power of the State Government of making rule is limited to the subject mentioned in Sub-Clause (a) to (e) of Section 14, then the State Government has only power to make rule with respect to removal of encroachment, removal of unauthorized structures, demolition of buildings which may interfere with the planning or which may have been erected in contravention of the Regulations of the authority, the submission of report and returns by the authority to the State Government on matters in relation to duties, powers and responsibility of the authority and the issue of directions by the State Government laying down board principles for the fulfillment of aims and objects of the Act but there cannot be rules for allotment of Industrial Plot in the AIADA'S Industrial Area. At one place it is admitted that the object of the Act is of planned development of the industrial area in the State of Jharkhand under the Act of 1974 but yet it is submitted that the subject of allotment of plot is not covered under Rule 14(e).
15. Not only this, further argument is that, even the authority is not required to make Regulations for allotment of the industrial plots because of the reason that the words provided for making Regulations "to carrying out the purposes of this Act" does not include making Regulations for the allotment of the plot. Learned counsel for the AIADA while interpreting Section 15 submitted that Section 15 nowhere provides for publication of any Regulation in Official Gazette.
16. So far as State power to make rule by exercising power under Section 14 of the Act, 1974 is concerned, the State has exercised that power and framed the rules which are Bihar Industrial Area Development Authority Rules, 1981. In the Rules of 1981, for the obvious reason that authority is an autonomous body vested with power under Section 15 to make Regulations to carry out the purposes of the Act of 1974, the State Government had kept the power to issue guidelines in the matter of allotment of industrial plots by the AIADA by framing Clause (e) under Rule 10 of the Rules of 1981. Rule 10 is as under:
"10. Directive by the State Government under Section 14(d) of the Act.9
The State Government may, from time to time, issue directions to the Authority laying down principles for fulfilment of aim and objects of the Act particularly regarding:
a) Nature of development work to be undertaken by the Authority.
(b) Priorities of different development works to be undertaken.
(C ) Nature of services to be provided to Industrial Units in the Area and fees chargeable therefor.
(d) Nature and extent of municipal and other functions to be performed by the Authority as authorised by the State Govt. from time to time.
(e) Any other policy matter such as fixation of price of land, allotment of land, realisation of instalments of land etc."
17. The Clause (e) under Rule 10 clearly indicate that the State Government is required to issue directions to the authority laying down principles for fulfillment of aim and objects of Act including allotment of land obviously to the public. Neither the AIADA nor the State has placed on record any of the document evidencing that the State ever issued any direction to the authority laying down principles for allotment of land nor the AIADA itself has any rule or prescribed guidelines as such for allotment of Industrial Plots. Mere taking decision taken in the meetings, here and there for one or some issues raised at the time of allotment of one or two plots is not a policy decision nor is a complete procedure. This procedure is also not made known to public. Rather the procedure as has been shown, is not a fair and just and transparent procedure and further it is absolutely vague procedure.
18. In view of the above reasons, we are of the considered opinion that neither there are guidelines of the State Government to AIADA, who is authority established under the Act of 1974 in the matter of allotment of the land nor there is any Regulation for allotment of the land. The arguments which have been referred to be shocking because of very simple reason that even after considering the observations of this Court made in the earlier orders, the stand of the Managing Director, AIADA, ignoring Sub Section 2 of Section 6, is that Sections 14 & 15 do not cover the subject of allotment of land and if this stand of AIADA is accepted, then no Rule and no Regulation can be framed for the purpose. If it is so, then how the object of the Act will be achieved is not known even to AIADA. The argument of learned counsel that no guidelines can be issued by the State Government in the matter of allotment of the land by AIADA 10 nor any Regulation can be framed by the AIADA, is contrary to the Rule 10 of the Rules of 1981 whereunder a provision has been made under the Statutory Rules that by virtue of Section 14 (e) of the Act of 1974, the State Government shall be entitled to or is bound to lay down broad principles for the fulfillment of aims and objects of the Act including for the allotment of the land by AIADA.
19. At this juncture, one recent Judgment of the Hon'ble Supreme Court delivered in the case of Centre for Public Interest Litigation and others vrs. Union of India and others reported in (2012) 3 SCC 1 is relevant, which has been relied upon by both the learned counsels, for AIADA as well as learned counsel for the Managing Director, AIADA. In that case, Hon'ble Supreme Court not only considered the question of Government policy of allotment of certain contracts on the principles of the first-come-first-served policy but also reiterated that what is the best way to give the contract and to alienate the properties and benefits of the State. Paragraphs-94, 95 and 96 of the said judgment are relevant, which are as under:
"94. There is a fundamental flaw in the firstcomefirstserved policy inasmuch as it involves an element of pure chance or accident. In matters involving award of contracts or grant of licence or permission to use public property, the invocation of firstcomefirstserved policy has inherently dangerous implications. Any person who has access to the power corridor at the highest or the lowest level may be able to obtain information from the Government files or the files of the agency/instrumentality of the State that a particular public property or asset is likely to be disposed of or a contract is likely to be awarded or a licence or permission is likely to be given, he would immediately make an application and would become entitled to stand first in the queue at the cost of all others who may have a better claim.
95. This Court has repeatedly held that wherever a contract is to be awarded or a licence is to be given, the public authority must adopt a transparent and fair method for making selections so that all eligible persons get a fair opportunity of competition. To put it differently, the State and its agencies/instrumentalities must always adopt a rational method for disposal of public property and no attempt should be made to scuttle the claim of worthy applicants. When it comes to alienation of scarce natural resources like spectrum etc., it is the burden of the State to ensure that a non discriminatory method is adopted for distribution and alienation, which would necessarily result in protection of national/public interest.
96. In our view, a duly publicised auction conducted fairly and impartially is perhaps the best method for discharging this burden and the methods like firstcomefirstserved when used for alienation of natural resources/public property are likely to be misused by unscrupulous people 11 who are only interested in garnering maximum financial benefit and have no respect for the constitutional ethos and values. In other words, while transferring or alienating the natural resources, the State is duty bound to adopt the method of auction by giving wide publicity so that all eligible persons can participate in the process."
20. Hon'ble Supreme Court in above case, though declaring with allotment of natural resources, and in a catena of other judgments have laid down that the public authorities must adopt transparent and fair method in the matter of allotment of public property so that all eligible person may get a fair opportunity to compete. We need not to multiply by mentioning several other judgments in view of above recent judgment delivered in the case of Centre for Public Interest Litigation and others(Supra) and now in the light of the above, we may proceed to examine what is the procedure adopted by the AIADA for allotment of land to the industrialists. We may reiterate here that no guideline which is required to be issued by the State Government under Rule 10 of the Rules of 1981 framed under the Act of 1974 nor any regulation framed by the authorities under Section 15 of the Act, whether published in the Gazette or not, has been placed before us dealing with any of the subject relating to the dealing of the property by the AIADA. Therefore, firstly, this stand is sufficient to hold that what to say of transparent policy, there is no policy of the AIADA in the matter of allotment of the plots to the public or/and prospective entrepreneurs. As we have already held that some decisions taken by AIADA in its meetings, here and there, and not making such decision known to public is neither policy decision nor guidelines.
21. It is stated by the AIADA that, if no rules or resolution of AIADA is found in the matter of allotment of plots by AIADA, then the long practice adopted by AIADA is valid way of allotment of industrial plots by AIADA. Therefore, we may examine the practice of the AIADA in the matter of allotment of the plots because learned counsel for the AIADA and learned counsel for the Managing Director of the AIADA vehemently submitted that they have given complete procedure for allotment of industrial plots in their counter affidavit dated 12 10.04.2012. In Sub para-1 of the paragraph 5 of the said counter affidavit, it has been stated that '........ It is most respectfully submitted that actions relating to the setting up of industries, such as allotment and cancellation of land does not come within the ambit of "carrying out the purposes of this Act". The purposes of the Act, as also evident from a reading of Sections 14 and 17 of the Act, cannot be construed to the allotment of land or setting up of industries but for promotion of industries which has to be interpreted in the light of the Industrial Policy within the State as propounded from time to time ........'
22. Therefore, not only in oral argument which may be misunderstood, in writing it has been made clear that the allotment of industrial plot and their cancellation does not come within the ambit of "carrying out the purposes of this Act". We rightly observed that this stand is shocking. This has been repeated in the same paragraph in following words:
Therefore, allotments of land or actions relating to setting up of industries do not fall within the ambit of either "planned development of industrial area" or "promotion of industries" or "matters appurtenant thereto".
23. Such stand can be taken only by the AIADA which is situated in the State of Jharkhand. If the allotment of land ( in fair and transparent manner) to the public/entrepreneurs is not required for "planned development of industrial area"
or "promotion of industries", then what for the AIADA was constituted, has not been explained and it is the stand taken by the learned counsel for the Managing Director of the AIADA that, purposes of the Act is only as enumerated in the Sub Clause (a) to (e) of Section 14 of the Act of 1974, then the purpose is only demolition and nothing more. No development, no industry what to say of "planned development of industrial area" and "promotion of industries".
Regulations are also not required for allotment of land by the AIADA, then still it is its transparent mode of allotment !
24. It was also one of the contentions, that even came from the learned counsel for the appellant that when there is no procedure prescribed by rules and the practice is followed and said practice is not contrary to the Rules, then that practice can not be questioned. This may be true and no doubt if under discretionary power of the authority, some decisions are taken, which can be 13 justified otherwise and which do not run contrary to the statutory provisions, then that procedure followed by long time itself can be accepted to be a valid procedure. As we have already stated that procedure must be transparent, fair and must give reasonable opportunity to all eligible aspirants. Therefore, we will examine the procedure, which is according to the AIADA, is the procedure for allotment of the industrial plots.
25. The AIADA in its counter affidavit in sub-para (ii) of Paragraph 5 seriously controverted this allegation that there is no fixed procedure and submitted that there is set procedure and policies stipulated by the respondent no. 2 (AIADA) based on the decision taken on behalf of the respondent no. 2 from time to time, which are duly notified and publicized so as to be well known to the "prospective entrepreneurs" who seek and apply for allotment of industrial land from respondents no. 2. This set procedure and polices stipulated for allotment of land are never varied so as to suit any particular entrepreneur. Then, it has been stated in Sub-para (iii) of Paragraph 5 of the counter affidavit that the Resolutions passed in these meeting are widely publicized and duly notified, however, so as to inform (only) all such parties who are the stake-holders in AIADA, including the representatives of the entrepreneurs and the prospective entrepreneurs. The Resolutions passed in such meetings have never been publicized in the Official Gazette for the reason that the same were considered as not covered within the purview of Section 15 of the Act. Therefore, the fixed and transparent procedure adopted by the AIADA is by taking decision by the AIADA itself from time to time. In spite of demand, no such said fixed procedure and decision taken by the AIADA has been placed before this Court prescribing the complete procedure of declaration of the availability of the industrial plot to the AIADA, procedure for making it known to the public at large, procedure for making application, procedure for scrutiny of the application, procedure prescribing considerations, which will be relevant for the purpose of finding out the suitable candidate out of the eligible candidates and thereafter, procedure for allotment and thereafter, conditions which are required to be fulfilled after obtaining the allotment.
14
26. We have one brochure published by the AIADA which has been annexed with the affidavit dated 10.4.2012 filed by the respondents. This brochure nowhere says which of the authority of the AIADA declared it to be the procedure and when this procedure was prescribed. This brochure must have been preceded by any decision of the AIADA and the said decision is not before us in spite of demand. When this brochure was published, it is also not mentioned in the document. Be that as it may, assuming that this may be the procedure prescribed by the AIADA. Admittedly, it has not been published in the Official Gazette, which is mandatory requirement under Section 15 of the Act of 1974. It is not the case of the AIADA that any other resolution framed under Section 15 ever has been published in the Official Gazette.
27. If it is the practice which has been given in the brochure, then the stand of the AIADA is that such decisions are widely publicized and duly notified so as to inform all such parties, "who are stake-holders in the AIADA", including "the representatives of the entrepreneurs" and "the prospective entrepreneurs". So admittedly, this procedure may be known to above persons only and admittedly is not known to public. Learned counsel for the AIADA could not show that how such decisions are "widely publicized" and "duly notified" and particularly when stand of the AIADA is that, such decisions are made known to only representatives of entrepreneurs and stake holders only.
Learned counsel for the AIADA vehemently submitted that these decisions are notified on the Notice Board of the AIADA and this information is given to the industrial entrepreneurs. However, procedure as such is not prescribed. Even assuming this is the procedure, then it is known to the stake- holders in the AIADA, but who are the stake-holders, is not explained. Admittedly, the availability of plots are not published in any known form of publication, which may reach to the public at large or even to the industrial entrepreneurs, who may be stake-holders in the AIADA. It is, therefore, admitted case of AIADA that these plots are disposed off without giving any opportunity to even industrial entrepreneurs of the State of Jharkhand and is only offered to the entrepreneurs of AIADA, not even known to new entrepreneurs. Therefore, 15 even if it is a procedure adopted by the AIADA since its creation and even after framing of Rules of 1981, then this procedure is absolutely arbitrary and gives authority to inform the availability of plots to the persons of their choice. Very strange is that in spite of repeated asking of the Court, no explanation or no reason has been given that why the plots available in AIADA are not notified, if AIADA intend to dispose of any of the industrial plots. We are of the considered opinion that AIADA or any such authority is not required to dispose of its all available vacant plots by one notification or even only by one procedure and has right to keep plots reserved for allotment to the entrepreneurs in future and may prescribe different procedure for new entrepreneurs and may give plots on concessional price, but it should be by their rules, guidelines and decisions and which is known to all eligible persons. However, whatever plots or even one plot, if available with the AIADA for its disposal, there must be fair and transparent procedure for allotment. There are different types of plots, different nature of industrial unit and different facts and circumstances, like the plots, which originally came in the ownership of the AIADA by virtue of the transfer of the land by the Government under Industrial Policy by acquisition or otherwise and the plots of the land, which comes in the hands of the AIADA because of their own efforts after initial efforts for establishment of the entire industrial area. Thereafter, the AIADA can start for planned development of industrial area by carving out plots, roads and the necessary amenities and such projects can be in phase manner by declaring industrial area Phase-I, II and so on. Second category of plots may be, which may come in the hands of the AIADA upon surrender of plots by the original allottee and entrepreneurs. Third category may be the plots, which will be cancelled by the AIADA because of the condition of violation of lease of the allottee/lessee.
28. For all these matters, there may be separate procedure and there may be open competition of the prospective buyers and there may be limited competition in a situation, which may be decided by the AIADA or under the industrial policy by the State Government or under the decision taken by the AIADA in the matter of policy of allotment of lands. However, we are not 16 prescribing the procedure for allotment of land of any type referred above as it is the duty of the State Government to guide the authority of the AIADA to implement the policy. But, whatever the procedure in the opinion of such authorities is just fair and reasonable and gives full opportunity to all the eligible persons to compete which is required to be framed, in accordance with law, rules and should be known to all, who may be interested and one of the recognized mode is by publishing it in the Gazette.
29. We are considering all the facts that the authority like AIADA is not the authority established to do the business of land nor they are established to earn the profit. Such authorities are created under National and State's policy for industrial development and to fulfill the aims and objects of the Act by and under which such authorities are created and established, are supposed to allot the industrial land on very concessional rate so as to invite more new entrepreneurs who cannot compete already established industrial establishment. There are large many issues for which, in our opinion, probably no mind has been applied resulting into giving arbitrary power to AIADA and its officers to take a resolution in their meeting and then to paste such decision in its Notice Board in its office and if it is true, then to circulate among the representatives of the entrepreneurs (how it is done, it is a serious question) and if the stand of the AIADA is correct that the prospective entrepreneurs are also informed then, admittedly that statement is absolutely wrong statement of fact in view of the clear stand of the AIADA that the plots are not required to be notified to all, as has been stated in unequivocal terms at para-7 of the counter affidavit dated 10.4.2012 in the words "since there exists a long queue with AIADA of intending entrepreneurs who require land and whose projects have been cleared by the Project Clearance Committee (P.C.C.) there is hardly any necessity of notifying or inviting application for allotment of plots." Therefore, the procedure of the AIADA is that first the applicant will come with project report and thereafter they will search out a defaulter who is ready to negotiate with such entrepreneur and then, he will enter into contract with that defaulter entrepreneur and that defaulter entrepreneur's financers and then will again 17 approach the AIADA and then AIADA may allot the plot to such person. This strange procedure is the practice of the AIADA in allotment of the industrial plots is an admitted fact, as has been admitted in the counter affidavit filed by the AIADA, wherein it has been clearly stated that the entrepreneurs, who are having projects in their hand, may submit its project report and the project report can be considered by the Project Clearance Committee and the Land Allotment Committee.
30. Above procedure was followed in the case in hand. The appellant's contention is that this project was already approved by the Project Clearance Committee and admittedly, it was cleared on the day there was no land available with AIADA. But the core question is that if, there are several applicants, whose projects have been cleared by the Project Clearance Committee, then there is no procedure by which the AIADA can take a decision of allotment except in arbitrary manner for want of proper guidelines and provisions for finding out suitable applicant, out of the eligible applicants.
31. This fact has already been taken note by the learned Single Judge in the impugned order dated 10th May, 2011. A person has not applied for a particular plot but has applied for approval of his project report and obtained the approval for his project report, then how that very person will know that the land is available in this area developed by AIADA, is also a gap which has not been explained. It is also not clear because of absence of any rules and guidelines that up-to what period after the approval of the project, validity of approval of project will continue for the purpose of getting allotment of the industrial land which may be a relevant fact because in the time of sharp rising of price of all commodities, the project, which was found to be feasible some years ago, may not be viable at all at the time of allotment.
32. Learned counsel for the AIADA submitted that there are large number of applicants already before AIADA for allotment of plots and therefore, in that situation, no useful purpose can be served by notifying plots for allotment. If it is so, then it is the admitted case that the plots are not available for the public at large, who are the necessary participants in the matter of implementation of any 18 State's Industrial Policy, which may attract new persons who are not already having industries and thereby, by this process, the other persons who may be willing to establish industrial unit, which may be more suitable than any person who has already obtained approval for setting up of industry and that person is deprived of taking any chance of getting land and therefore, this clearly violates the principle under Article 14 of the Constitution of India.
33. Learned counsel for the Managing Director of AIADA drew our attention to paragraph 32 of the judgment of the Hon'ble Supreme Court rendered in the case of Harshad S.Mehta & Ors. Vs. State of Maharashtra reported in (2001) 8 SCC 257, the same is reproduced below:-
"The contention further is that the deficiency in the Act, if any, cannot be provided by the court particularly when the language is plain and simple and the assumed gaps cannot be filled by the court and that the wilful omission made by the legislature has to be respected by the court. On the legislature wilfully omitting to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the court is not competent to supply the omission under the guise of interpretation by analogy or implication, something what it thinks to be a general principle of justice and equity, reliance has been placed upon CST v. Parson Tools and Plants, Lord Howard De Walden v. IRC, Johnson v. Moreton and Harcharan Singh v. Shivrani. The contention is that any interpretation by this Court other than the one propounded would be entrenching upon the power of the legislature. On the principles of interpretation, on detailed consideration of various decisions of this Court and courts of other countries, in S.P. Gupta v. Union of India a Bench of seven Judges said:
"199. But there is one principle on which there is complete unanimity of all the courts in the world and this is that where the words or the language used in a statute are clear and cloudless, plain, simple and explicit, unclouded and unobscured, intelligible and pointed so as to admit of no ambiguity, vagueness, uncertainty or equivocation, there is absolutely no room for deriving support from external aids. In such cases, the statute should be interpreted on the face of the language itself without adding, subtracting or omitting words therefrom. (SCC p.
377, para 199)
* * *
273. (2) Where, however, the words or expressions used in the constitutional or statutory provisions are shrouded in mystery, clouded with ambiguity and are unclear and unintelligible so that the dominant object and spirit of the legislature cannot be spelt out from the language, external aids in the nature of parliamentary debates, immediately preceding the passing of the statute, the report of the Select Committees or its Chairman, the Statement of Objects and 19 Reasons of the statute, if any, or any statement made by the sponsor of the statute which is in close proximity to the actual introduction or insertion of the statutory provision so as to become, as it were, a result of the statement made, can be pressed into service in order to ascertain the real purport, intent and will of the legislature to make the constitutional provision workable.
We might make it clear that such aids may neither be decisive nor conclusive but they would certainly assist the courts in interpreting the statute in order to determine the avowed object of the Act or the Constitution as the case may be." [SCC p. 392, para 273 (2)]
34. With the help of above Judgment of the Hon'ble Supreme Court learned counsel for AIADA submitted that, if there is some gap in procedure followed by the AIADA then, the court can fill the gap to save the procedure in stead of holding the procedure to be bad in law. On the principle of interpretation, there is no difficulty in accepting the contention of the counsel but when there is no enactment, no decision and there is no procedure, the Court is not supposed to undertake a task of prescribing procedure.
35. In our opinion, the Act of 1974 is clear, its aims and objects are very clear and it has been enacted for the purpose of planned development of industrial area and promotion of industries and of the matters appertained thereto and we are not ready to accept the submission of the counsel for the Managing Director of AIADA that section 14 is the only purpose for which the Act of 1981 has been enacted. Learned counsel for the Managing Director of AIADA repeatedly stated that object of the Act is given in the preamble which we have referred and the purpose is given in section 14. If this contention of the learned counsel for the Managing Director of AIADA is accepted, then the purpose of the Act will be for removal of encroachment from the lands of AIADA and for removal of unauthorized structures and demolition of buildings only. Filling up of the gap is something which can be applied to the enactments and when there is no rule for allotment of land and when there is no regulation for allotment of land, how there can come any question for filling up of the gap by the Court?
36. After the Court's above observation made in the two orders dated 13.7.2011 and 12.10.2011, a meeting of the authority of AIADA was convened and its minutes are recorded in its 101st meeting. Learned counsel for the 20 AIADA submitted that in agenda no.3 and 11, procedure has been given by the AIADA. We are dealing with the process of allotment of land of the year 2009 and the decision has been taken on 30.9.2011 by the authority of AIADA in its meeting and admittedly neither it was there in the year, 2009 nor has been notified in the official gazette till today. The procedure as given in agenda no.3 and 11 also no where prescribes the complete procedure for allotment of land so as to make clear as to how the industrial plots, which are lying with AIADA either as original plots or as plots which the AIADA got after cancellation of lease, will be notified disclosing the intention of allotment of specific plots by the AIADA to allow the public at large and industrial entrepreneurs in India, if not restricted for persons of outside State by a valid law, to take part and compete for the plots offered by the AIADA. However, in the resolution dated 30.9.2011, while considering agenda no.3 by the decision no.4, it has been provided that if, there are more claimants for one plot, then such plot will be allotted by notifying limited open bid. However, it is not clear how the person will know to apply for allotment of industrial plot. These decisions (patches), which have been supplied by AIADA, also cannot make the practice of AIADA to be a fair and transparent procedure for the allotment of land to the industrial entrepreneurs. In view of the above reasons, we declare that there is no fair and transparent policy, guidelines or rule for allotment of the industrial plots of the AIADA.
37. Reverting back to the facts of the case. We may recapitulate the fact that the present writ petitioner's case is that he obtained one surrender deed dated 29.6.2009 from the said Unit, Jamshedpur Steel Pvt. Ltd., and the present appellant's case is that he obtained the surrender deed from the same Unit on 19.9.2009. The petitioner's contention in the writ petition is that his case was considered by the AIADA and vide letter dated 30.11.2009, it has been admitted by the AIADA that it was already decided before 30.11.2009 to place the petitioner's matter before the P.C.C and L.A.C and as per their note sheet in the file, it indicates that the petitioner's land surrender case was ordered to be placed before the PCC/LAC, whereas appellant's case is that he paid all the dues of the Bihar State Financial Corporation and State Bank of India on 21
9.10.2009, which were the dues of the defaulting unit, Jamshedpur Steel Pvt. Ltd. and he obtained the original lease deed from the defaulting unit and has submitted before the authorities of the AIADA and since the appellant already obtained the surrender lease deed from the Jamshedpur Steel Pvt. Ltd. on 19.10.2009 and paid the loan amount of the Bihar State Financial Corporation and State Bank of India, the appellant-non-petitioner, in that fact situation, had a better case, rather to say, he was the only person who could have claimed allotment of the plot. It is also the case of the appellant-non-petitioner, he even submitted a project report as back as on 12th December, 2008 and his project was cleared and approved in a meeting of AIADA on 4th July, 2009, whereas in contrast, writ petitioners are three in number, out of whom writ petitioner no.1 alone was incorporated body at that time and the petitioner nos.2 and 3 were even incorporated as late as on 22nd June, 2009 and 11th September, 2009 respectively. The writ petitioners' contention is that everything was manipulated at the instance and because of the collusion between the appellant-non- petitioner and the Officers and persons of AIADA so as to favour the appellant- non-petitioner, which is apparent from the receipts placed on record by the appellant. On the other hand, appellant's case is that he obtained the original lease deed or surrender deed from the defaulting unit because the appellant's case is that he paid the amount on 7th October,2009 and obtained the deed whereas from the receipts placed on record, it is clear that the amounts were paid to the bank on 12.3.2010 and thereafter, and therefore, the appellant-non- petitioner could not have obtained the deeds from the Bihar State Financial Corporation. Learned counsel for the appellant-non-petitioner controverted this fact by stating that in fact, the appellant-non-petitioner paid the amount of Rs.50 lacs to the defaulting unit, Jamshedpur Steel Pvt. Ltd., by cheque, who, in turn, deposited the amount and obtained the original lease deed, which was surrendered and submitted before the AIADA authorities. We have narrated these facts only for the purpose of placing on record the facts as submitted by the parties, i.e., the writ petitioners and the appellant-non-petitioner. The facts remains are that, admittedly, the appellant-non-petitioner had a sanctioned 22 project in hand whereas the writ petitioner had no sanctioned project with them and the writ petitioners preferred the writ petition because of the reason that at advanced stage of sanction of their project for establishing industrial unit according to petitioner, at the instance of the respondent-appellant the lease of the original lessee itself was cancelled. However, there is no decision of the AIADA shown to us whereby it has been provided that the person who already obtained approval of the project alone will be entitled to allotment of land. There is no decision of the AIADA brought to our notice wherein time of the sanction of the project report of any party by the AIADA has any preference over the person whose project report has been sanctioned subsequently. Assuming for the sake of argument, for allotment of plot for establishment of the industry, the approval of the project may be a condition precedent, even then there is no guideline or regulation of the AIADA upto what time that only applicant whose project has been sanctioned alone will be considered. Therefore, it is not clear from any of the decisions of the AIADA that any one can get the right of allotment because it applied first or it got the project approved first. It is also not clear that, what is the right of the person who got the project approved but other person applied for specific plot first, then got the project approved, then in that situation, what will be the position when that was the position ? Case in hand is of the year 2009 that is, prior to 13.11.2011 and at that time there was no decision of the AIADA to have an open bid procedure from all eligible candidates. Therefore, that decision of 30.11.2011 has no application to the facts of the present case. In view of the above, in our opinion, none of the parties had right to claim relief directly of allotment of the plot in dispute from the AIADA on the basis of their preparation for obtaining the land in question by obtaining surrender deed by spending rupees running more than lacs or crores for the defaulting unit for the purpose of discharging loan liability and payment of substantial consideration to the defaulting party also. This type of unfair competition for winning over the party is likely result of such type of procedure as is being adopted by the AIADA and this case is the example of millions of rupees being paid by the writ petitioner and the appellant-non-petitioner to the defaulting party and both tried 23 to over reach each other. These all can happen because of the reason of such absolutely farce procedure which has been sought to be defended here before this Court as late as in the year 2012, ignoring all previous judgments of the Hon'ble Supreme Court condemning such type of practice of not providing compete, fair and transparent procedure for allotment of land and therefore, we have mentioned the above facts which also demonstrate that if, the AIADA is allowed to proceed in the manner in which the AIADA is proceeding, then looser will be the bonafide person and the State Exchequer irrespective of the fact that AIADA tried to submit that the AIADA is an autonomous body and is subjected to income tax. Such submission is by ignoring the foundation of fact as to how AIADA was constituted, which are its constituents as per the Act and its constitution of the Board which consists of only Government Officials who are getting salary from the Government Exchequer and the AIADA is getting the land from the Government or through the Government and is discharging public duty of implementation of the National as well as State Policies of planned development of the industries, yet it has been stated that it is income tax payee autonomous body and therefore, there is no question of involvement of public exchequer as it has been stated in the counter-affidavit filed by the AIADA.
38. Not only the above, but learned counsel for the Managing Director of the AIADA may be very right, but it is pitiable that the Managing Director, according to the learned counsel for the Managing Director of the AIADA, is absolutely helpless because of the reason that the decisions are taken at higher level and not at the level of the Managing Director who has been delegated some of the powers of the authority of the AIADA. It has also been submitted that the Managing Director, Chief Executive Authority of the AIADA, is also again helpless because the decision of the feasibility of the project is decided by the competent Committee known as P.C.C and allotment of land is made by L.A.C. If this is the stand of the Officers upon whom law has reposed faith and assigned important task of implementation of industrial development policy and as per the Government's stand, this all is very good in the opinion of the State, then in that situation, no one can see industrial development through such weak 24 Officers. At this juncture, we may take judicial notice of the fact that Jamshedpur is one of the important industrial cities not only in the State of Jharkhand but is known industrial town of the entire country. In such an important industrial area, like in the industrial area of Adityapur Industrial Area Development Authority, in the year 2012 there are only 893 running units on the land provided by the AIADA which includes large scale, medium scale, small scale and tiny scale industries, generating only 27900 direct employment and the facts and figures have been provided by the AIADA itself in the supplementary counter affidavit dated 10.4.2012.
39. In these facts and circumstances, we are of the considered opinion that at present there is no better way than to direct the AIADA to auction the plot in dispute not between these two entrepreneurs but it may be a public auction, in which the writ petitioners and non-petitioner-appellant will be given opportunity to take part, after duly notifying it and after notifying the reserved price for the unit and that process may be completed expeditiously by the AIADA.
40. Now the question arises to think over the directions which have been given by the learned Single Judge. We are of the considered opinion that since presently the dispute is in relation to one plot and for that, this process can be applied because the land is available and buyers are also available and therefore, this process is only for the present alienation of the plot by the AIADA. However, in view of the stand taken by the State and even after going through the Industrial Policy as shown by the learned counsel for the non-petitioner- appellant, we are of the considered opinion that in a matter of implementation of the industrial policy to give effect to the provisions of the Act of 1974 and the Rules of 1981, the State be directed and is hereby directed to frame uniform guidelines for allotment of industrial land by any of the authorities constituted under the Act of 1974 and to ensure that all the authorities constituted under the Act of 1974 and Rules of 1981 shall make regulation under the provisions of section 15 of the Act of 1974 and shall publish the regulation in the official gazette. The respondent AIADA shall not alienate and process allotment of any of its land till it frames appropriate regulation and publishes in the official gazette 25 and the AIADA henceforth shall deal with the lands of the AIADA strictly in accordance with the guidelines of the State Government which may be issued under Rule 10 of Rules of 1981 and shall proceed to deal with the AIADA lands only in accordance with the regulation which may be framed by the AIADA and without such guidelines and such regulations, AIADA shall not alienate and transfer any of its land. We are passing this order because of the reason that such guidelines and regulations can be framed by no loss of time and if during this period, AIADA is allowed to proceed to deal with the transfer of land, then there is no procedure and AIADA has no authority to deal with the land without any procedure by taking help of the procedure which we have already discussed above, which is totally unfair, arbitrary and unjust and clearly deprives the public from fair competition in the matter of getting benefit of National as well as State Policies and which favours a few.
41. Learned counsel for the non-petitioner-appellant drew out attention to affidavit filed by the appellant today, wherein it has been alleged that the writ petitioner is having a number of plots in the AIADA, that is the area situated within the jurisdiction of AIADA alone and it is also submitted that the petitioner purchased one unit but that allotment was cancelled and the petitioner purchased the unit of another defaulter also.
42. We have taken note of this fact that allegation has been made in the affidavit only but we are of the considered opinion that any industrial entrepreneur has his own inherent right to take as many as industrial plots as it can afford but subject to any restriction contained in any Act or Rule or Guidelines framed for the purpose and not contrary to the objects of the Act. Motivation for the industry is not for philanthropic purpose and motivation results into earning of profit. Earning of profit certainly is the result of expansion of the industry as well as establishment of more units and this is the object which is required to be fulfilled by encouraging more setting up of industries by the entrepreneurs which will certainly generate public employment as well as give opportunity to many other industrial units of the area to set up. Therefore, having more industrial plots and expanding the industries rapidly by one entrepreneurs 26 is not sin but is a sign of progress of a country. Since the material facts are not with us, we are told that the industrial authorities established under the Act of 1974 in the entire State of Jharkhand are very less in number and as have been brought to our notice, these authorities also did not have much land with them and therefore, industrial growth in the State of Jharkhand is very poor so far as small scale and medium scale of industries are concerned. If it is the fact situation, then this is also a serious issue because of the reason that in the State of Jharkhand itself, there are very big industrial units which are having thousands of acres of land with it and doing the job of not only National but International importance in the State of Jharkhand. In that situation, development of small and medium scale industrial industries in the State of Jharkhand should have been not only merely more in number but it should have been in multiplication of the number at least in every five years. However, this is only a fact taken note of by us so that this matter be considered while issuing guidelines by the State Government and may be an important issue for the authorities under the Act of 1974 to be taken note of while making the regulations.
43. In view of the above discussion, directions issued in the impugned judgment stand modified to the extent of the directions issued by us in this L.P.A and this L.P.A. is disposed of with above directions to the State and AIADA.
(Prakash Tatia,C.J.) (Aparesh Kumar Singh, J.) Dey/Sudhir/Ajay