Rajasthan High Court - Jodhpur
Yunus Dyeing vs Rajasthan State Industrial ... on 6 September, 2019
Author: Dinesh Mehta
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 14774/2018 Hitesh Finishing, through Proprietor Shri Khem Raj S/o Teja Ram Jat, aged about 46 years, R/o Bero Ke Paas, Ramdeo Taka, Ward No.1, Balotra, District Barmer (Raj.).
----Petitioner Versus
1. Rajasthan State Industrial Development and Investment Corporation Limited (RIICO), through its Managing Director, Udyog Bhawan, Tilak Marg, Jaipur.
2. The Regional Manager, Rajasthan State Industrial Development and Investment Corporation Limited (RIICO), Balotra, District Barmer.
3. The Divisional Commissioner Cum Allotment Committee, Jodhpur.
----Respondents
For Petitioner(s) : Mr. Vikas Balia
Mr. Hemant Ballani
Mr. M.S. Champawat for Mr. Devi
Kishan Vyas
For Respondent(s) : Mr. Sanjeet Purohit
JUSTICE DINESH MEHTA
Judgment
Reportable September 6th, 2019
1. Present writ petition and others enlisted in the schedule appended herewith involve common grievance and seek to challenge common order, thus they are being disposed of conjointly by this common order. The facts of S.B. Civil Writ Petition No.14774/2018 Hitesh Finishing Vs. RIICO & Ors. are however being taken into consideration, as a lead case.
2. Before adverting to the skeleton facts, it would be appropriate to give a brief background: this Court in S.B. Civil Writ (Downloaded on 09/09/2019 at 08:58:57 PM) (2 of 14) [CW-14774/2018] Petition No.759/2002 Mahavir Nagar Vikas Samiti Vs. State of Raj. and S.B. Civil Writ Petition No.2481/2002 Mahesh Pareek Vs. State of Raj., issued directions to close down industrial activities in non- conforming/residential area in Pali and Balotra and directed the RIICO to develop industrial area(s) and shift such units operating in non-conforming area to the new industrial area to be developed. Accordingly, RIICO was obliged to set up industrial area within a period of six months from the order and industrial units were to be accommodated in such area.
3. An advertisement then came to be published on 30.08.2008, whereby applications were invited from all eligible industrial units interested in getting allotment of industrial plots on payment of development charge @ Rs.800/- per Sq. meter.
4. All the units situated in Balotra could not be allotted plots, thus, another advertisement came to be published on 01.11.2011. In this advertisement also, development charges for the industrial plots remained the same i.e. Rs.800/- per Sq. meter.
5. The petitioner submitted his application for allotment of plot on 11.11.2011, while tendering requisite amount of Rs.4,16,000/-, by way of the Bankers cheque.
6. The concerned Allotment Committee headed by the District Collector in its meeting held on 12.09.2012, proposed allotment of industrial plot admeasuring 2000 Sq. meter to the petitioner. However, said proposal did not culminate into a concrete decision and the matter remained pending at the end of RIICO, for no fault of the petitioner.
7. In the meeting held on 26.11.2015, the Allotment Committee took a decision that it would be appropriate to allot plots of 2000 Sq. meters in size to the industrial units, which (Downloaded on 09/09/2019 at 08:58:57 PM) (3 of 14) [CW-14774/2018] according to it was the minimum area required for establishing a printing & dyeing unit. Said decision was however, kept subject to the approval by the head office of RIICO.
8. The above referred decision of the Allotment Committee was after due approval, communicated by the State Government vide its letter dated 03.02.2016.
9. Respondent No.2 - Regional Manager of RIICO sent a letter dated 17.02.2016 to the petitioner, interalia, informing that it has been found eligible for allotment of plot admeasuring 2000 Sq. meters, subject to payment of the amount, shown in demand notice within a period of 15 days from the date of issuance of the letter. It is to be noted that the RIICO had calculated the amount payable while taking the development charges as Rs.1500/- per Sq. meter.
The demand notice contained the following furcation of the amount payable:-
Ø- la- fooj.k jkf"k ¼:½ izpfyr vkoaVu nj :- 1500@& iz- o-eh- ds vuqlkj ns; 1 jkf"k = 7,80,000 2000 x 1500/- p. sqm. X 26% iwoZ esa rRle; izpfyr vkoaVu nj 800@& iz-o-eh- ls tek djkbZ xbZ jkf"k = 2 4,16,000 2000 x 800/- p. sqm. X 26% (-) 3 mDrkuqlkj tek djk;h tkus okyh "ks'k jkf"k ¼ 1 & 2 ½ = 3,64,000
10. It will not be out of place to reproduce the relevant para of the demand notice dated 17.02.2016, which reads thus:
"mijksDr izdj.kksa ds lEcU/k esa Jheku~ ftyk dysDVj egksn;] ckM+esj dh v/;{krk esa xfBr lfefr }kjk fopkj dj fy, x;s fu.kZ; dh jkT; ljdkj us vuqeksfnr dj fn;k gSA mDr fu.kZ; ds vuqlkj vkidks vkoaVu dh frfFk dks izpfyr vkoaVu nj ij 2000 oxZ ehVj {ks=Qy dk Hkw[k.M vkoafVr fd;k tkuk izLrkfor gSA vr% vkils fuosnu gS fd vki iwoZ esa tek djkbZ xbZ jkf"k dks de djrs gq, orZeku izpfyr nj ds vuqlkj fu/kkZfjr jkf"k (Downloaded on 09/09/2019 at 08:58:57 PM) (4 of 14) [CW-14774/2018] ¼ftldk fooj.k uhps vafdr gS½ i= tkjh gksus dh frfFk ls 15 fnol esa vko";d :i ls bl dk;kZy; esa tek djkus dk d'V djs%& "
It is to be noted that this decision was taken for total 39 units, forming of the present group of petitions.
11. As the RIICO had levied development charges of Rs.1500/- per Sq. meter, as against the rate at which the plots were offered and proposed to be allotted, the petitioner requested RIICO to allot the plot @ Rs.800/- per Sq. meter.
12. According to the petitioner, it did not deposit the remaining amount, as shown in the demand notice dated 17.02.2016 in a hope of getting reduction/relaxation in the amount.
13. After allotment to the petitioner and other 38 industrial units, who were initially found eligible, about 95 industrial units remained without allotment, for one reason or the other. In order to decide claim/rights of those 95 industrial units, a committee, headed by Divisional Commissioner, Jodhpur, was constituted, which committee in its meeting held on 13.05.2017, made following observation even qua these 39 units also:-
"95 i=kofy;ksa dh iqujh{k.k esa lEHkkxh; vk;qDr }kjk tkap dh x;h gSA iwoZ esa ftyk dyDVj dh v/;{krk esa fy;s x;s fu.kZ; esa 39 bdkbZ;ksa dks ik=rk ;ksX; ekuk x;kA tks orZeku esa laHkkxh; vk;qDr ds Lrj ij tkap esa 'kkehy ugha gSA ysfdu desVh ds lnL;ksa }kjk ;g fopkj&foe"kZ fd;k x;k fd iwoZ esa ik= ik;h x;h 39 vkosndksa dh i=kofy;ksa esa iwoZ eas fy;s x;s dsoy {ks=Qy fu/kkZj.k ds fu.kZ; dk iqu% voyksdu djrs gq;s ;g fu.kZ; fy;k x;k fd mDr ik=rk ;ksX; 39 bdkbZ;ksa ds {ks=Qy dk fu/kkZj.k Hkh lekuqikfrd :i esa djrs gq;s lekurk j[kh tkosaA {ks=Qy dk vk/kkj fcUnq la- 1 ds vuqlkj gksxkA"
14. It is pertinent that the committee headed by the Divisional Commissioner made passing remarks even for these 39 units, to (Downloaded on 09/09/2019 at 08:58:57 PM) (5 of 14) [CW-14774/2018] the effect that they be allotted land proportionate to the land they held in non-conforming area, regardless of the fact that petitioner's entitlement of plot admeasuring 2000 Sq. meters already stood decided.
15. In wake of above observations, the respondent RIICO found it difficult to finalize the allotment, as the Committee headed by the Divisional Commissioner had ordered that all these 39 industrial units be allotted proportionate land.
16. In furtherance of the above decision taken in the meeting held on 13.05.2017, the case(s) of the petitioner(s) (39 units) incidentally stringed with the cases of 95 units was/were also discussed and the State Government-Industrial Department took a decision that land more than their proportionate entitlement be allotted, however, additional land be charged at higher rate of Rs.3000/- per Sq. meter. It will not be out of context to reproduce the relevant part of the communication dated 28.08.2018, addressed to the Chairman, RIICO which reads thus:-
"2. The request of Hon'ble State Revenue Minister for giving upto 2000 sqmt. of land to all the above 53 eligible units was also accepted wit the condition that premium of land for excess area beyond the area decided by the Divisional Commissioner Committee will be charged at Rs.3000/- per sqmt. i.e. twice of the prevailing rate of allotment of the industrial area."
17. RIICO, thereafter, issued a revised demand notice dated 05.09.2018, requiring the petitioner to pay Rs.3000/- per Sq. meter, for the additional land (1500 Sq. meters) whereas for 500 Sq. meter land, the development charges were determined as Rs.1500/- per Sq. meter.
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18. Feeling aggrieved of the demand notice dated 05.09.2018 and the action of the respondent - RIICO in charging higher rate, the petitioner has approached this Court for the following reliefs:-
"It is therefore, most humbly and respectfully prayed that this writ may kindly be allowed and by a writ of mandamus or any other appropriate writ order and direction.
(i) The action of the respondents in deciding to make proportionate allotment of industrial plot to the petitioner as well as to charge additional amount for the plot may kindly be declared illegal and be quashed and set aside;
(ii) The minutes of meeting dated 13.05.2017 (Annexure-12) may kindly be declared illegal to the extent, the same decides to make allotment of plot only on proportionate basis;
(iii) The demand notice dated 05.09.2018 (Annexure-
14) may kindly be declared illegal to the extent the respondents have directed to make payment of part of plot @ 3000 per sqm;
(iv) The action of the respondents in demanding the rate of plot @ 1500/- per sqm may kindly be declared illegal and be quashed and set aside;
(v) The respondent authorities may kindly be directed to make allot of industrial plot to the petitioner measuring 2000 sqm @ 800 sqm;
(vi) The respondent authorities may kindly be directed to adjust the amount already deposited with the respondent along with interest earned to it against the amount to be paid by the petitioner for allotment of industrial plot measuring 2000 sqm @ 800/- per sqm;
(vii) The respondent authorities may further be directed to refund the amount recovered in excess by the respondents along with interest to the petitioner.(Downloaded on 09/09/2019 at 08:58:57 PM)
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(viii) Any other relief which this Hon'ble Court deems just and proper in favour of the petitioner may kindly be granted.
(ix) The cost of the writ petition be allowed in favour of the petitioner."
19. Mr. Vikas Balia, learned counsel appearing for the petitioner sheding light on the background and the relevant facts, as noticed above, initially maintained that the petitioner is entitled for allotment of land @ Rs.800/- per Sq. meter, but when the Court posed a question to him; as to why the petitioner did not take up the issues or legal proceedings against the demand notice dated 17.02.2016 and how he proposes to strike the balance of equity, as the RIICO would have earned interest in the period interregnum and as a result of inflation, the value of money has decreased, he fairly conceded that the petitioner would confine his claim of allotment of land @ Rs.1500/- per Sq. meter, in terms of the first demand notice dated 17.02.2016. Counsel appearing for other petitioners also consented to the proposition submitted by Mr. Vikas Balia.
20. In a bid to establish his case for allotment of the land @ Rs.1500/- per Sq. meter, learned counsel contended that as per the decision taken by the Allotment Committee on 26.11.2015, the petitioner was found entitled for a plot admeasuring 2000 Sq. meters. Such decision of the Allotment Committee, which was kept subject to approval of the State Government, after due ratification vide communication dated 03.02.2016 has attained finality. It is only after the approval of the State Government, the demand notice dated 17.02.2016 came to be issued in favour of the petitioner, requiring him to deposit the development charges (Downloaded on 09/09/2019 at 08:58:57 PM) (8 of 14) [CW-14774/2018] calculated @ Rs.1500/- per Sq. meter for 2000 Sq. meters of land.
21. According to Mr. Balia, by way of issuance of demand notice dated 17.02.2016, not only the petitioner's right of allotment of 2000 Sq. meters land, even the rates of allotment stood finalised and freezed. He argued that subsequent decision dated 13.05.2017, taken by the Committee headed by the Divisional Commissioner, cannot be made applicable to the petitioner's case for two reasons; firstly, because the issue of allotment of plots as far as petitioner and other 38 industrialists are concerned, was not at all before the committee, as their rights stood settled and decided, on issuance of the demand notice; and secondly because the subsequent decision taken on 13.05.2017, cannot be made applicable to the allotment, which had already attained finality. He was at pains to submit that merely because of the procedural delay or for its own deficiencies, if the RIICO has failed to allot plot and issue lease deed, the petitioner's acquired rights cannot be altered on the basis of subsequent decision of the Divisional Commissioner dated 13.05.2017 or the decision of the Industry Department dated 28.08.2018.
22. Learned counsel emphatically argued that on the one hand, the respondents have demanded premium from petitioners @ Rs.3000/- per Sq. meter, and on the other, they have published another advertisement/notice (on 15.10.2017) for Balotra area itself, offering to allot plot @ Rs.1500/- per Sq. meter.
23. Inviting Court's attention towards the advertisement dated 15.10.2017, learned counsel contended that the RIICO having decided to allot industrial plot @ Rs.1500/- in the subsequent (Downloaded on 09/09/2019 at 08:58:57 PM) (9 of 14) [CW-14774/2018] allotment, cannot justifiably charge higher rates from the petitioner.
24. Mr. Sanjeet Purohit, learned counsel appearing for the respondent - RIICO argued that though the petitioner(s) was/were issued demand notice(s), in February 2016, they did not deposit the amount demanded in the demand notice and thus, their rights cannot be treated as finalised. Before the same could be finalised and acted upon, the Industries Department, by way of letter dated 28.08.2018, written to the Chairman and Managing Director of the respondent-Corporation asked it to charge premium (twice the prevailing rate) on the additional land. He submitted that the demand notice impugned in the present writ petition dated 05.09.2018 is legal and justified, if the factual backdrop in its entirety is taken into account. He informed that as of today, the industrial plots in Balotra are being allotted @ Rs.3000/- per Sq. meter and that is prevailing market rate, the petitioner cannot shy away from paying applicable market rate. He emphasised and that no illegality can be alleged, in case the respondent - RIICO has charged premium for the additional land which has been allotted over and above petitioners' entitlement in proportion to the land it held in non-conforming area.
25. Heard learned counsel for the parties and perused the material available on record.
26. Indisputably, the petitioner applied for the plot, when the rates were 800/- per Sq. meter, but when the in-principle decision to allot land to the petitioner was taken by the concerned Allotment Committee on 26.11.2015, the same stood increased. The petitioner was found entitled and eligible for allotment of 2000 Sq. meter land, upon payment of the prevailing rate i.e. Rs.1500/- (Downloaded on 09/09/2019 at 08:58:57 PM)
(10 of 14) [CW-14774/2018] per Sq. meter. The decision of the allotment committee dated
26.11.2015 was duly ratified by the State Government on 03.02.2016. The matter did not end there; based on the rates prevailing on such date, the respondent - RIICO had issued demand notice dated 17.02.2016 to the petitioner requiring it to make payment of development charges @ Rs.1500/- per Sq. meter.
27. The petitioner did not deposit the amount shown in the said demand notice (dated 17.02.2016) in a hope that plot would be allotted at the earlier rates viz. Rs.800 per Sq. meter. The RIICO has also not taken any decision/action to revoke or cancel the offer made vide letter dated 17.02.2016.
28. However, a perusal of the demand notice dated 17.02.2016 reveals that it does not contain any sunset clause or outer limit, stipulating that if the amount is not deposited in the prescribed period, the offer will be cancelled/revoked. Hence the petitioners' stand of not depositing the amount immediately can be understood.
29. Meanwhile, for the reasons best known to the committee, under the aegis of the Divisional Commissioner, in its meeting held on 13.05.2017, decided to allot proportionate land to the petitioner and other 38 industrial units sailing in the same boat.
30. In considered opinion of this Court, the petitioner's right stood finalised and freezed on the issuance of the demand notice dated 17.02.2016. The terms of allotment cannot be altered, thereafter.
31. A perusal of the minutes dated 13.05.2017 reveals that the said committee was given a mandate to review the decision with respect to 95 industrial units and while dialating upon their cases, (Downloaded on 09/09/2019 at 08:58:57 PM) (11 of 14) [CW-14774/2018] the committee, out of the blue made an uncalled for and unwarranted observation, qua these 39 units also, completely being oblivious of the fact that their cases were not before it. Needless to add that no one thought it fit to elicit petitioners' response or view point.
32. The decision dated 13.05.2017, taken in the meeting headed by the Divisional Commissioner, is not only contrary to facts, but also without jurisdiction on the face of it. The extract of the minutes reproduced in para No.13 of this judgment leaves no room for ambiguity that cases of those 39 units were not before the committee of Divisional Commissioner.
33. It is only in furtherance of the decision dated 13.05.2017, the petitioner's case, which had attained finality was tabled before the State Government-Industries Department. The State Government, vide its communication dated 28.08.2018 asked the Chairman of RIICO to levy development charges @ Rs.3000/- per Sq. meter - twice the prevailing rates of allotment, for the additional land, while agreeing to the proposal that petitioner and other industrial units be allotted plot admeasuring 2000 Sq. meters. Though this decision too was targeted/meant for 95 units covered by the decision dated 13.05.2017, but the same has been mechanically made applicable to the petitioner(s), who were not covered by the decision dated 13.05.2017.
34. This Court deems it necessary to observe that RIICO and Industries Department are expected to ensure augmentation of the industrialisation in the State and hence, they should ensure speedy establishment of the industrial area and seamless allotment of the plots to deserving units, instead of focusing on profiteering. Charging of premium for the additional land, which is (Downloaded on 09/09/2019 at 08:58:57 PM) (12 of 14) [CW-14774/2018] as high as double the prevailing rate, is not only contrary to facts and petitioners' crystallized rights, but also arbitrary and fanciful, given the fact that the RIICO, in October, 2017 itself has offered the plots for allotment @ Rs.1500/- per Sq. meter.
35. A bare look at the decision dated 28.08.2018 of the State Government shows that the prevailing market rate was Rs.1500/- per Sq. meter. There is no plausible, much less a justifiable reason to charge premium for the purported additional land, particularly when not only the advertisement, even petitioner's application and so also the duly approved decision of the allotment committee talked about 2000 Sq. meters land. The bogy of additional land created so also the decision to charge premium, both are untenable.
36. In view of the aforesaid, decision dated 13.05.2017 taken in the meeting headed by the Divisional Commissioner, qua petitioner and other 38 units to the extent of restricting their allotment in commensurate with the land already held by them, is quashed and set aside. It is declared that the decision of the State dated 28.08.2018 cannot be made applicable to the petitioners, to whom allotment had been made on 26.11.2015.
37. Since, the period of more than three years has since lapsed and petitioners have also not deposited the amount demanded by the RIICO in time, with a view to balance the equity, it is deemed appropriate and hence declared that the respondent RIICO shall be entitled for interest calculated @ 12% per annum for the period during which the amount depicted in the first demand notice remained unpaid.
38. Learned counsel for the petitioners informed that almost all petitioners have paid amount calculated at the rate of 1500/- per (Downloaded on 09/09/2019 at 08:58:57 PM) (13 of 14) [CW-14774/2018] Sq. meter. The same be paid, if not paid so far. All the petitioners shall pay an interest @ 12% per annum for the period between the date of issuance of demand notice (@ Rs.1500/- per Sq. meter) and the date of deposit or 30.09.2019, which ever is earlier.
39. The respondent RIICO shall issue a demand notice regarding interest amount on or before 30.09.2019 to each of the petitioners and also publish a list of applicable interest payable, on its notice board. All the petitioners are required to deposit the interest amount (and the amount shown in the demand notice, if not deposited so far) on or before 15.10.2019. On depositing of such amount, the respondent RIICO shall allot them plots, while giving plot number on or before 31.12.2019.
40. After allotment of the plots, lease deed be got executed and the possession handed over, peremptorily by 31st March, 2020.
41. Needless to observe that adjudication aforesaid shall be applicable to the present petitioners only. The industrial units who have accepted the terms of the allotment and have paid the amount, will not be entitled to claim refund of the amount already deposited.
42. Present petition, so also, those mentioned in the schedule are allowed in above terms.
43. Stay petition and all other misc. applications also stand disposed of.
(DINESH MEHTA),J 159-Ramesh/-
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Schedule
S.NO. WRIT PETITION NO. PARTY NAME
1. SBCWP NO.14913/2018 Mohd. Habib Deying RIICO & Ors.
2. SBCWP NO.14916/2018 Manoj Peding Works RIICO & Ors.
3. SBCWP NO.14919/2018 Laxmi Washing Works RIICO & Ors.
4. SBCWP NO.14921/2018 Mohd. Vali Dyeing Co. RIICO & Ors.
5. SBCWP NO14937/2018 Somnath Industries RIICO & Ors.
6. SBCWP NO.14974/2018 Mehboob Peding Works RIICO & Ors.
7. SBCWP NO.15138/2018 Kohinoor Dyeing RIICO & Ors.
8. SBCWP NO15262/2018 Mohd. Arif Dyeing Co. RIICO & Ors.
9. SBCWP NO.15280/2018 Mohd. Arif Dhupai Udhyog RIICO & Ors.
10. SBCWP NO.15350/2018 Yunus Dyeing RIICO & Anr.
11. SBCWP NO.15354/2018 Kohinoor Hand Print RIICO & Ors.
12. SBCWP NO.16263/2018 Lakharam Mohanlal Mali RIICO & Ors.
13. SBCWP NO.15094/2018 Gani Mohd. Ismile RIICO & Ors.
14. SBCWP NO.14772/2018 Mohd. Haji Dyeing RIICO & Ors.
15. SBCWP NO.14852/2018 Maha Ashapura Dyeing RIICO & Ors.
16. SBCWP NO.14853/2018 Ashraf Jilani Dyeing RIICO & Ors.
17. SBCWP NO.19158/2018 M/s. Mukesh Mahaveer RIICO & Ors.
Pedding
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