Patna High Court
M/S Cts Industries Ltd vs The State Of Bihar & Ors on 28 September, 2015
Author: Vikash Jain
Bench: Vikash Jain
Patna High Court CWJC No.1755 of 2011 dt.28-09-2015
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1755 of 2011
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M/S CTS Industries Ltd. Collegiate School Road, Jagio, Mohalla Begusarai, P.S.
Town, District Begusarai, through its Director Purushottam Kumar Tulsyan, son of
Sri Sitaram Tulsayan, resident of Jagir Mohalla, Collegiate School Road, P.S.
Begusarai, District Begusarai
.... .... Petitioner
Versus
1. The State of Bihar, through the Secretary, Industrial Deptt., New Secretariat,
Patna
2. The Bihar Industrial Area Development Authority, through its Managing
Director, Bihar Udyog Bhawan, Patna.
3. The Managing Director, B.I.A.D.A., Udyog Bhawan, Patna
4. The Executive Director, B.I.A.D.A., Udyog Bhawan, Patna
5. The Bihar Industrial Area Development Authority, Darbhanga through its
Executive Director
.... .... Respondents
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Appearance :
For the Petitioner : Mr. Sanjeet Kumar
Mr. Dhananjaya Nath Tiwary, Advocates
For the BIADA : Mr. Lalit Kishore, Sr. Advocate
Mr. Piyush Lall, Advocate
For the State : Mr. Suman Kumar Jha, AC to AAG5
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CORAM: HONOURABLE MR. JUSTICE VIKASH JAIN
CAV JUDGMENT
Date: 28-09-2015
The present writ petition has been filed for setting
aside the letter no. 84 dated 28.01.2010 issued by the Bihar
Industrial Area Development Authority, Darbhanga (respondent
no. 5) calling for the undernoted payments from the Petitioner
for purposes of transfer of the land of M/s Ranjan Chemicals
Limited (In liquidation) in favour of the petitioner -
(i) Towards transfer of land
and change in constitution Rs. 1,84,25,880.00
(ii) Towards maintenance charges Rs. 61,41,960.00
Patna High Court CWJC No.1755 of 2011 dt.28-09-2015
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Total Rs. 2,45,67,840.00
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2. The short facts of the case are that a sale notice
dated 29.03.2007 in respect of the assets/properties of M/s
Ranjan Chemicals Limited (In liquidation) was published and in
due course, the confirmation of sale of the factory land
admeasuring 10 acres was made in favour of the petitioner, it
being the highest bidder, and upon its depositing the full and
final sale consideration of Rs. 60 lacs on 21.06.2007, physical
possession was accordingly handed over to the petitioner. A deed
of assignment was also executed on 12.07.2008 in its favour on
payment of stamp duty and registration fee by it. The petitioner
then approached the respondent authority for its consent for
mortgaging the land in connection with obtaining bank finance, in
response to which however the respondent authority raised the
aforesaid demand of Rs. 2,45,67,840/-. The petitioner's objection
dated 15.01.2009 against the demand on grounds that the land
had been acquired by means of a bid taken through the official
liquidator and hence it was not entering into a fresh agreement
and the old agreement was applicable, did not however find
favour with the respondent authority which reiterated its demand
in terms of the impugned letter dated 28.01.2010. Reliance is
placed on Samarendra Nath Sinha and Another vs. Krishna
Kumar Nag reported in AIR 1967 SC 1440 on this point.
Patna High Court CWJC No.1755 of 2011 dt.28-09-2015
3. Learned counsel for the petitioner submits that the
demand raised by the respondent authority is arbitrary and
without authority of law and the petitioner cannot be saddled
with such a liability considering that it had acquired the land in
auction sale in the winding up proceedings of M/s Ranjan
Chemicals Limited (In liquidation). It is submitted that this was
not a voluntarily sale and would thus not attract the cost of
transfer, fee etc. as was being required to be deposited by the
respondent authority.
4. Learned counsel appearing on behalf of the
respondent authority on the other hand submits that the cost of
transfer etc. have rightly been demanded from the petitioner. He
refers to his counter affidavit and invites attention to the office
order dated 18.11.2003 of the respondent authority, wherein a
decision had been taken in its third meeting to permit change in
constitution of a unit on payment of 15% of the value of the land
then fixed and its up-to-date dues. In its subsequent office order
dated 12.03.2004 the respondent authority had taken a decision
in its fourth meeting that such policy would also be applicable in
all cases of transfer of ownership by way of sale and purchase;
transfer or change in constitution as a result of purchase of a
Unit in an auction from BSFC; and merger and de-merger of
units resulting in change of constitution and transfer. It was
clarified that in all such cases, 15% of the value of the land then
Patna High Court CWJC No.1755 of 2011 dt.28-09-2015
fixed would be payable to the respondent authority.
5. Learned counsel for the Respondent authority relies
on the order dated 12.03.2010 passed by a learned Single Judge
of this Court disposing of I.A. No. 6250 of 2009 in Company
Petition No. 11 of 1996 [M/s Misrilall Jain (P) Ltd. vs. M/s Nacro
Chemicals Ltd.] which in turn noticed an earlier decision of this
Court dated 09.07.2009 passed in I.A. No. 1145/2009 in
Company Petition No. 1/1991 [In the matter of Hathwa Metals &
Tubes Limited (in liquidation)] and the matter decided on similar
lines, repelling the identical contention of the applicant therein as
in the present case to the effect that the assets of the Company
in liquidation had been purchased in course of winding up
proceedings and as such the policy decision of the respondent
authority could not be applied.
6. Learned counsel for the respondent authority
especially relies on the undernoted observations of this Court in
its decision dated 09.07.2009 in Company Petition No. 1/1991
referred to above, to submit that the policy decisions of the
respondent authority had statutory force and binding effect
having regard to the BIADA Act 1974, which thus required to be
obeyed by the Petitioner --
"The applicant-company having purchased the assets of the
company in liquidation is required to obey all local and national
laws for the purpose of running its industry in the State of
Jharkhand."
Patna High Court CWJC No.1755 of 2011 dt.28-09-2015
7. It is further pointed out that the order dated
12.03.2010in Company Petition No. 11 of 1996 was carried in Company Appeal (DB) No. 8 of 2010 which was dismissed by a Division Bench of this Court, expressing the view that the policy decision of the respondent authority dated 12.03.2004 was in force on 15.02.2007 being the date on which the auction sale had been approved by the learned Company Judge.
8. It is therefore submitted that the view expressed in Company Petition No. 11 of 1996 as upheld by the Division Bench in appeal squarely covers the facts and issues in the present case. Moreover, the contention of the Petitioner that the Hon'ble Single Judge had left it open to the applicant to approach the appropriate forum, could also not be understood out of context. Learned Counsel for the Respondent authority relied upon the well-settled principles of binding precedents as reiterated in Union of India vs. Dhanvanti Devi [(1996) 6 SCC 44] in the following terms, pointing out that the applicability of the policy decisions had been upheld and it was that part which constituted the binding ratio of the case --
"The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, Patna High Court CWJC No.1755 of 2011 dt.28-09-2015 when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution."
9. Learned counsel for the respondent authority then invites attention to the common judgment dated 11.05.2015 passed in LPA No. 68 of 2008 [BIADA and others vs. Sri Amit Kumar and others] and analogous cases, wherein the Hon'ble Division Bench considered the view taken by the Learned Single Judge in some Writ Petitions (including Badri Mehrotra's case) to the effect that no levy whatever could be made for transfer, as well as the view expressed in other Writ Petitions (including Shankar Saw Mills) that the levy shall be on BIADA rates. The view in the latter category of cases was approved. The attempt of Learned Counsel for the Petitioner to distinguish the decision in the LPA by pointing out that the matters therein involved sale by private parties to other private parties and were not cases of auction sales of properties of Companies in liquidation through the Official Liquidator, was resisted by the Respondent authority submitting that the distinction would not make any different to the end result, the validity of the levy itself having been upheld.
10. It is therefore submitted by Learned Counsel for the Respondent authority that the binding principle emanating from the decision of the Hon'ble Division Bench is that the levy for permission to transfer stands validated. He however fairly submits that as regards the calculation of 15% of the value of Patna High Court CWJC No.1755 of 2011 dt.28-09-2015 the land to be applied, the matter stands concluded in the same decision, holding that the levy of 15% shall be on BIADA rates and not with respect to circle rates, as existing on the date of according permission for transfer.
11. Having heard the parties at length and on careful consideration of the materials on record, this Court is an agreement with the submissions made on behalf of the respondent authority. In view of the order dated 12.03.2010 in Company Petition No. 11 of 1996 as upheld in Company Appeal (DB) No. 8 of 2010, this Court is satisfied to hold that the respondent authority is competent to levy the transfer fee, etc. and the petitioner shall be liable to pay the same for purposes of obtaining permission for transfer of land in its favour. It is not disputed that the office orders of the respondent authority dated 18.12.2003 and 12.03.2004 referred to above are in operation. The same shall therefore have to be given effect to as and when the respondent authority considers the matter and accords permission for transfer of the land in favour of the petitioner. The amount of the transfer fee however shall be calculated at the prescribed rate of 15% with reference to the BIADA rates and not with reference to circle rates as held in LPA No. 68 of 2008 and analogous cases.
12. The decision in Samarendra Nath Sinha's case (supra) relied upon by Learned Counsel for the Petitioner does Patna High Court CWJC No.1755 of 2011 dt.28-09-2015 not appear to apply in the facts and circumstances of the present case, being in the context of applicability of Section 52 of the Transfer of Property Act and the doctrine of lis pendens.
13. Before parting with this judgment, another submission made on behalf of the Petitioner may be noticed. It is claimed that the total demand of Rs. 2,45,67,840/- raised by the Respondent authority includes some amount towards past dues relatable to M/s Ranjan Chemicals Pvt. Ltd. (In Liquidation) which is not legally exigible from the Petitioner. No such averment has however specifically been made in the Writ Petition. In the interest of justice and as prayed, the Petitioner is granted liberty to approach the Respondent authority with a representation in this regard, which if done, shall be considered and disposed of on its own merits in accordance with law.
14. The writ petition accordingly stands disposed of.
(Vikash Jain, J) Md. Ibrarul/-
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