Madras High Court
Coaction Communication Private ... vs State Industries Promotion on 27 July, 2022
Author: C.Saravanan
Bench: C.Saravanan
W.P.No.7999 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 13.07.2022
PRONOUNCED ON : 27.07.2022
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
W.P.No.7999 of 2016
Coaction Communication Private Limited
Formerly known as
SDP Telecom (India) Private Limited
Having their office at
Plot No.OZ-11/4,
SIPCOT Industrial Park,
Oragadam 603 003
Represented by Saurabh Aggarval
Authorized signatory. ... Petitioner
vs.
State Industries Promotion,
Corporation of Tamil Nadu Limited (SIPCOT)
Having their registered office at
No.19 A, Rukumani Lakshmipathy Road,
Egmore, Chennai 600 008. ... Respondent
Prayer: Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorarified Mandamus calling for the records
pertaining to letter of the respondent dated 25.01.2022 having reference
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https://www.mhc.tn.gov.in/judis
W.P.No.7999 of 2022
No.P-1/SEZ-O/SDP/17/2008 and quash the same and to direct the respondent
to refund a sum of Rs.1,30,87,930/- to the petitioner.
For Petitioner : Mr.Arun C.Mohan
For Respondents : Mr.M.Karthikeyan
Standing Counsel.
ORDER
The petitioner has challenged the impugned communication dated 25.01.2022 bearing reference No.P-I/SEZ-O/SDP/17/2008 rejecting the request for refund of the deposit made by the petitioner at the time of allotment of an industrial plot by the respondent State Industries Promotion Corporation of Tamil Nadu Limited (SIPCOT) vide letter dated 19.02.2008 bearing reference No.P&SP/SEZ-O/SDP/17/2008.
2. Point for consideration in the present writ petition is whether there was a cancellation of allotment made earlier in favour of the petitioner and whether the petitioner was evicted in terms of Allotment Order dated 19.02.2008 bearing Reference No.P&SP/SEZ-O/SDP/17-2008 or whether the 2/16 https://www.mhc.tn.gov.in/judis W.P.No.7999 of 2022 the petitioner surrendered the industrial plot that was allotted to the petitioner in the year 2008 in terms of Clause 14(ii) of Lease Deed executed between the petitioner and the respondent on 05.06.2009 registered as Document No.2480 of 2009.
3. Relevant clauses from the aforesaid allotment order dated 19.02.2008 bearing reference No.P&SP/SEZ-O/SDP/17/2008 and Lease Deed dated 05.06.2009 registered as Document No.2480 of 2009 are reproduced below:-
Clause 19 of the Allotment Clause 14(ii) of the Lease Deed Order
19. Failure to comply with any 14(ii) The plot deposit alone of the conditions of this shall be refunded by the Party of allotment order shall result in the First Part to the Party of the cancellation of allotment, Second Part on the expiry of the resumption of the plot and period of lease and on disconnection of water supply by compliance with all the terms of SIPCOT. On such cancellation the lease. In the event of plot deposit, development surrender by the party of the charges, additional development second part, the plot deposit will charges incurred and collected be refunded in full after if any, Lease rent or interest forfeiting the initial deposit and thereon already paid by the processing fee by the party of the allottee shall not be refunded first part. The development nor shall any compensation in charges will be refunded after 3/16 https://www.mhc.tn.gov.in/judis W.P.No.7999 of 2022 Clause 19 of the Allotment Clause 14(ii) of the Lease Deed Order whatever form by payable to the forfeiting an amount of 5% per allottee. year or part thereof for the number of years the plot was held by the party of the second part subject to a minimum deduction of 15% and no compensation for improvement of building or other structures erected in the plot shall be made by the party of the first part.
4. As per the aforesaid lease deed, in the event of surrender of the leased plot back to the SIPCOT, the petitioner would be entitled for refund of plot deposit in full after forfeiting the initial deposit and processing fee paid by the petitioner. On the other hand, if Clause 19 of Allotment Order was attracted and is to be pressed against the petitioner, the petitioner is not entitled for any refund.
5. As per Clause 19 of the aforesaid allotment order dated 19.02.2008 vide bearing reference No.P&SP/SEZ-O/SDP/17/2008, as extracted above any failure to comply with any of the conditions of the allotment order would result in cancellation of allotment, resumption of plot and disconnection of 4/16 https://www.mhc.tn.gov.in/judis W.P.No.7999 of 2022 water supply by the respondent SIPCOT.
6. On such cancellation, plot deposit, development charges, additional development charges incurred and collected if any, lease rent or interest thereon already paid would be neither refunded back nor any compensation was to be paid in whatever form.
7. The petitioner was conceived as an ancillary unit for supply of electronic parts to Nokia India Private Limited Company, Sriperumbudur which was also located in the aforesaid Special Economic Zone. It appears that originally, the petitioner was incorporated as SDP Telecom Private Limited in Sriperumbudur and later changed to its present name.
8. An extent of 4.06 acres of land was allotted to the petitioner in the SIPCOT Special Economic Zone (SEZ) in Sriperumbudur to the petitioner vide Allotment Order dated 19.02.2008 bearing Reference No.P&SP/SEZ-
O/SDP/17-2008 for putting up an industrial unit in Sriperumbudur. 5/16 https://www.mhc.tn.gov.in/judis W.P.No.7999 of 2022
9. Nokia India Private Limited Company was however unable to sustain itself and therefore eventually exited from the respondent’s Special Economic Zone. The petitioner was thus unable to carry on the business.
10. The petitioner was issued with Show Cause Notice dated 20.11.2018 and 10.07.2019 prior to cancellation of the lease on 02.03.2020 vide cancellation order dated 02.03.2020 bearing Reference No.P&SP/SEZ.O/SDP/17/2008.
11. The above mentioned Show Cause Notices issued were for the violation of the allotment order dated 19.02.2008 bearing reference vide letter dated 19.02.2008 bearing reference No.P&SP/SEZ-O/SDP/17/2008.
12. Provisions of the Tamil Nadu Public Premises (Eviction of Unauthorized Occupants) Rules, 1978 were also pressed against the petitioner.
13. FORM A was issued to the petitioner on 20.01.2021 and called upon the petitioner as to why the petitioner should not be evicted under 6/16 https://www.mhc.tn.gov.in/judis W.P.No.7999 of 2022 Section 4 of the Tamil Nadu Public Premises (Eviction of Unauthorized Occupants) Rules, 1978.
14. Thereafter, FORM B was issued on 10.02.2021 fixing a date for enquiry under Section 5 of the Tamil Nadu Public Premises Act and called upon the petitioner to come up for a hearing on 25.02.2021 at 11.30 am. to remove the property of description mentioned therein, failing which, the respondent also threatened to auction the property allotted to the petitioner.
15. FORM C was issued on 19.04.2021 to the petitioner under Rule 6 of the Tamil Nadu Public Premises (Eviction of Unauthorized Occupants) Rules 1978.
16. Both FORM A & B were issued along with a covering letter on 25.02.2021. The petitioner also replied to the respondent stating that the petitioner was planning to approach the M.D. of SIPCOT with the detailed action plan for re-starting the operation and seeking for withdrawal of the Cancellation Order of the lease deed and that the petitioner also committed 7/16 https://www.mhc.tn.gov.in/judis W.P.No.7999 of 2022 towards investment in SIPCOT unit and would come back with the proposal on 19.04.2021
17. The respondent had canceled the allotment and took a symbolic possession of the plot vide letter dated 19.04.2021 and 02.03.2020. The relevant portion from the aforesaid Cancellation Order dated 02.03.2020 reads as under:
“ As per Condition No.6 of the allotment order and Clause No.14(i) of the Lease Deed, “ if in the opinion of SIPCOT, it is found that the land allotted to you is not put to use for the purpose for which it was allotted or is in excess of the allottees actual requirements, SIPCOT shall, at any time have the right to cancel the allotment in respect of such land or excess land as the case may be and resume the same under TNPPE Act.” Hence, we hereby cancel the allotment of Plot No.OZ- 11/4 measuring 4.06 acres which was allotted to you at SIPCOT Hi-Tech SEZ, Oragadam and you are hereby directed to execute the surrender deed within 15 days from the date of receipt of this order, failing which, we will be constrained to resume the plot under TNPPE Act.”
18. 15. It is thereafter, the cancellation deed was also executed on 28.06.2021 and registered as Document No.3089 of 2021 on 06.07.2021. 8/16 https://www.mhc.tn.gov.in/judis W.P.No.7999 of 2022
19. The petitioner had earlier approached this Court in W.P.Nos.14836 and 14840 of 2021 for the following relief : -
W.P.No.14836 of 2021 W.P.No.14840 of 2021
Writ Petition is filed under Article
226 of the Constitution of India Writ Petition is filed under Article
praying to issue a Writ of 226 of the Constitution of India
Certiorarified Mandamus, calling praying to issue a Writ of Certiorari,
for the records pertaining to letter of calling for the records pertaining to the respondent dated 19.04.2021 and letter of the respondent No.P& SP/ quash the same and to direct the SEZ.O/ SDP / 17/2008 dated respondent to grant a period of 8 02.03.2020 and quash the same. weeks to remove all the property belonging to the petitioner in the plot morefully mentioned in the schedule.
20. The petitioner filed an affidavit of undertaking dated 27.07.2022 in W.P.No.Nos.14836 and 14840 of 2021 undertaking to exit and surrender the property after demolishing the building put up by the petitioner. Recording the same, the court after considering the submission of the petitioner allowed the petitioner to surrender the property vide its order dated 29.07.2021.
21. The petitioner has now moved out the respondent SEZ after removing its machineries. It is the case of the petitioner that there was a 9/16 https://www.mhc.tn.gov.in/judis W.P.No.7999 of 2022 surrender of the plot by the petitioner to the respondent and therefore there cannot be any forfeiture of any deposit and therefore the respondent was bound to refund the amount paid by the petitioner.
22. It is the contention of the petitioner that the development charges has to be refunded to the petitioner after forfeiting an amount of five percent per year or part thereof for the number of years the plot was held by the petitioner's subject to a minimum reduction of fifteen percentage without compensation for improvement of the building or other structures erected in the plot by the petitioner.
23. It is the case of the petitioner that so-called violation of the allotment conditions fades out in the light of the subsequent order of this Court dated 29.07.2021 in W.P.Nos.14836 and 14840 of 2021 and therefore the petitioner was entitled for refund of the amount in terms of Clause 14(ii) of the Sale Deed dated 05.06.2009 registered as Document No.2480 of 2009.
24. The learned Standing Counsel for the respondent has relied on the decision of the Hon'ble Supreme Court in the case of Rama Narang Vs. 10/16 https://www.mhc.tn.gov.in/judis W.P.No.7999 of 2022 Ramesh Narang and Ors., (2009) 16 SCC 126; AIR 2007 SC 2029 and stated that the undertaking is not binding on the respondent.
25. I have considered the arguments advanced by the learned counsel for the petitioner and the learned Standing Counsel for the respondent.
26. The Hon'ble Division Bench of this Court in the case of S.Hakkimullah Vs. The Managing Director, Tamil Nadu Small Industries Development Corporation Limited (TANSIDCO), Thiru.Vi.Ka.Industrial Estate, Guindy, Chennai – 600 032 and two others in W.A.(MD).No.1802 of 2021 dated 23.09.2021 has held as follows:-
“4. When the appellant has got alternate remedy by way of an appeal under Section 9 of the Tamil Nadu Public Premises (Eviction of Unauthorized Occupants) Act, 1975, as against the impugned notice issued under Section 5 of the Act, dated 06.08.2021, the Writ Petition filed by him challenging the said notice is not maintainable.
5. In such view of the matter, the Writ Appeal is liable to be dismissed. Accordingly, the Writ 11/16 https://www.mhc.tn.gov.in/judis W.P.No.7999 of 2022 Appeal is dismissed. However, we give liberty to the appellant to challenge the impugned notice dated 06.08.2021 issued by the third respondent under Section 9 of the Tamil Nadu Public Premises (Eviction of Unauthorized Occupants) Act, 1975. In the event of the appellant filing an appeal under Section 9 of the Act, the appellate authority shall decide the matter on merits and in accordance with law, without being influenced by any of the observations made by the learned Single Judge. No costs. Consequently, connected Miscellaneous Petitions are closed”.
27. The undertaking given by the petitioner before this Court in W.P.Nos.14836 and 14840 of 2021 by way of an affidavit cannot be construed to mean the liability incurred by the petitioner for breach allotment letter dated 19.2.2008 bearing reference No.P&SP/SEZ-O/SDP/17/2008 stood effaced.
28. The temporary reprieve given to the petitioner in W.P.Nos.14836 and 14840 of 2021 did not efface the rights of the respondent to recover the amounts under the allotment letter. W.P.Nos.14836 and 14840 of 2021 was entertained as a mere concession.
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29. The subsequent, surrender of the land by the petitioner cannot be construed that the land was voluntarily surrendered by the petitioner. It was a surrender pursuant to order dated 29.07.2021 in W.P.Nos.14836 and 14840 of 2021 in the light of back ground of the case.
30. Therefore, the present writ petition seeking to assail the impugned communication dated 25.01.2022 rejecting the request of the petitioner for refund of the land cannot be countenanced.
31. It cannot be said that all the proceedings initiated prior to passing of order dated 14.07.2021 in W.P.Nos.14836 and 14840 of 2021 stood merged with the aforesaid order and therefore, it has to be construed that there was a surrender in terms of Clause 14(ii) of the Lease Deed dated 05.06.2009 registered as Doc.No.2480 of 2009 and the failure on the part of the petitioner to observe the conditions of Allotment Order dated 19.02.2008 bearing reference No.P&SP/SEZ-O/SDP/17/2008 to stood effaced. 13/16 https://www.mhc.tn.gov.in/judis W.P.No.7999 of 2022
32. In the light of the above, there is no merits in the present writ petition. The writ petition is therefore liable to be dismissed. It is accordingly dismissed. No costs.
27.07.2022 Index : Yes/No Internet : Yes/No kkd To 14/16 https://www.mhc.tn.gov.in/judis W.P.No.7999 of 2022 The State Industries Promotion, Corporation of Tamil Nadu Limited (SIPCOT) Having their registered office at No.19 A, Rukumani Lakshmipathy Road, Egmore, Chennai 600 008.
C.SARAVANAN,J.
kkd 15/16 https://www.mhc.tn.gov.in/judis W.P.No.7999 of 2022 Pre-delivery Order in W.P.No. 7999 of 2022 27.07.2022 16/16 https://www.mhc.tn.gov.in/judis