Calcutta High Court
West Bengal Electronic Industry ... vs Shanta Projects (P) Ltd. & Ors on 22 August, 2017
Author: Aniruddha Bose
Bench: Aniruddha Bose
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
BEFORE:
THE HON'BLE JUSTICE ANIRUDDHA BOSE
AND
THE HON'BLE JUSTICE SANKAR ACHARYA
APO No. 81 of 2016
WP No. 895 of 2009
West Bengal Electronic Industry Development Corporation Ltd.
Vs.
Shanta Projects (P) Ltd. & Ors.
With
APO No. 82 of 2016
WP No. 95 of 2010
West Bengal Electronic Industry Development Corporation Ltd.
Vs.
Shanta Projects (P) Ltd. & Ors.
Advocates for the Appellant: Mr. Biswarup Bhattacharjee,
Mr. Anil Dhar,
Mr. Sularbhanu Bhattacharya.
Advocates for the State: Ms. Chama Mookherji (senior Advocate)
Mr. Sadananta Ganguly,
Ms. Jyotsna Roy Mukherjee.
Advocates for the petitioner: Ms. Vinita Meharia,
Mr. Soumabho Ghose,
Mr. Amit Nag,
Ms. Trisha Mukherjee.
Heard On: 13.05.2016, 23.06.2016, 18.11.2016,
21.08.2017.
Judgment On: 22nd August, 2017.
Aniruddha Bose, J.:-
1. Both these appeals have been preferred by West Bengal Electronics
Industries Development Corporation Limited (WEBEL) assailing a common
judgment of the learned First Court in two writ petitions brought by the
respondents/writ petitioners seeking in substance allotment of certain land
for setting up Information Technology related industry. The location where the writ petitioners seek land is at an electronic complex developed in Sector-V, Salt Lake and Rajarhat, on the eastern fringe of the city of Kolkata. Land for IT related industry has been developed in those locations with State initiative. WEBEL came into possession of land of about 87.55 acres in Sector-V of Salt Lake on the basis of an indenture of lease executed in its favour in 19th January, 1987 by the State Government for a period of 999 years. WEBEL had invited applications in the year 1989 from intending organizations/units for setting up electronic industry there. The writ petitioners, however, made an application for allotment on 22nd/24th April, 2004 for about 0.25 acres of land and also deposited earnest money. The petitioners thereafter had made a second application for allotment of an equivalent area in Rajarhat on 30th March, 2005.
2. The appellant rejected the application of the writ petitioners for Salt Lake land by a communication dated 19th December, 2007 in the following terms:-
"This has reference to the application dated 22/04/2004 submitted by you to the Corporation for a plot of land in Saltlec for setting up your proposed IT/ITES center thereat. A sum of Rs.10,000.00 (Rupees ten thousand only) was also deposited along with the said application as Earnest Money.
The Corporation could not allot any plot of land in your favour due to some unavoidable reason.
Under the circumstances, the Corporation has decided to refund the Earnest Money deposited by you along with the said application. You are requested to apply to the undersigned along with the documents in support of the said deposit in a month since issuance of the instant letter."
3. In W.P.No.895 of 2009 the writ petitioners sought cancellation of the aforesaid letter of 19th December, 2007 and also for approval of their two applications. Main prayer of the writ petitioners was for allotment of land in their favour on the basis of its application dated 22nd April, 2005 and 30th March, 2004. The second application was made in relation to a State Government project for allotting 30 acres of land in Rajarhat meant for small and medium IT and ITES related companies. Advertisement in that regard was published by the appellant on 3rd February, 2005. The project was described as "Knowledge Corridor Phase -I". The aforesaid application was made on the basis of a communication made through an e-mail issued by the IT promotion cell informing the writ petitioner that the application in respect of the knowledge Corridor Project ought to be addressed to the Managing Director WEBEL. That communication by e-mail was made on 28th March, 2005. The complaint of the writ petitioners before the First Court was that in spite of regular follow up no decision was taken in respect of the second application. On the other hand, the writ petitioner no. 1, a private limited company was asked to obtain refund of earnest money by the letter, the text of which we have reproduced earlier in this judgment, so far their first application was concerned.
4. In W.P.No.90 of 2010, (the second the petition) the writ petitioners' prayer is for cancelling a notice inviting tender in respect of 2.77 acres of land in Sector-V only. The notice for tender was issued on 24th December, 2009. WEBEL had entered into an agreement with another company, Satyam Computer Ltd. for allotting the aforesaid land of 2.77 acres situated within the aforesaid 87.55 acres. Memorandum of understanding in that regard was executed in the year 2005 and lease agreement with Satyam was made on October 26, 2006. It has been submitted before us on behalf of the appellant that Satyam Computer Ltd. had thereafter abandoned their right and executed a deed of surrender on 11th November, 2009. Thereafter, the appellant had decided to lease out the entire plot of 2.77 acres afresh and for that purpose invited applications from interested bidders. We have been apprised by Mr. Bhattacharya, learned counsel for the appellant that auction has already been held in respect of the aforesaid land measuring 2.77 acres approximately and the same has been allotted in favour of the highest bidder. It is also brought to our notice by Mr. Bhattacharya that conveyance has been executed in favour of the highest bidder on 6th October, 2010. The ground on which the second petition is founded was that the writ petitioners ought to have been allotted land as per their two applications for the aforesaid 2.77 acres of land as per the writ petitioners' applications.
5. So far as the first writ petition is concerned, the same was admitted by a learned Single Judge on 31st August, 2009. In the order passed on that date, the learned Single Judge addressed the issue of non-consideration of the writ petitioners' application concerning land at Rajarhat and directed the appellant (being respondent no. 3 in the writ petition) to take decision in accordance with law and communicate the same to the writ petitioners within a timeframe prescribed in the order. The issue of letter for refund dated 19th December, 2007 was kept pending for adjudication and time was given for filing of affidavits for determination of the dispute arising out of the communication dated 19th December, 2007. Ms. Meharia, learned counsel for the writ petitioners has informed us that the second application was also rejected on 30th November 2009. Affidavits were filed in the first writ petition and both the writ petitions were heard together. The learned First Court found the reason cited for rejecting the writ petitioner's application made in 2004 to be unsustainable. Following the authorities in the cases of (i) Mohinder Singh Gill and Another Versus The Chief Election Commissioner, New Delhi and Others [(1978) 1 SCC 405], (ii) Gangal Ram versus State of Haryana and Others [(1996) 1 SCC 716] and (iii) Zenit Mataplast Private Limited versus State of Maharashtra and Others [(2009) 10 SCC 388], the learned First Court did not accept the reasoning of the appellant in justification of rejecting the writ petitioner's application. In its affidavit-in-opposition before the First Court the appellant's (respondent no. 3 in the first writ petition) main plea was that plots at the complex in Salt Lake stood exhausted by the time the writ petitioners had made their application. A Supplementary Affidavit was filed by the writ petitioners in the first writ petition. In this Supplementary Affidavit, a letter of Urban Development Department of the State Government dated 21st June, 2012 has been annexed. By this letter, drawing reference to writ petitioners' letter no. LAND: APPL: WEBEL dated 15th September 2011, the writ petitioner no. 1 was informed that it ought to apply through WEBEL (being the appellant) for allotment of land at Salt Lake. In the judgment under appeal, it has been observed by the learned First Court that records were never produced and for this reason adverse presumption was drawn against the appellant. The learned First Court, inter alia, held:-
"It does appear to this Court from the averments in the affidavit in opposition to the first writ petition as reproduced above, the admitted position is the application for allotment of land made by the petitioners did not receive any consideration whatsoever on the ground it was belated. Such reason was not disclosed but instead the reason attributed was 'unavoidable reasons'. WEBEL has also not been able to show that the invitation of the applications for allotment of land in Sector-V out of the tract of land leased out by the Government had a cut off date. Submission was made with reference to applications dated from the years 2002 to 2006 to the effect earnest monies deposited was decided to be refunded. However, the Court has been shown letter dated 21st June, 2012 from the Government to the petitioner no.1 which requested the said petitioner to apply through WEBEL along with their views. The omission on the part of WEBEL to disclose a cut off date and the facts recorded above lead this Court to infer that there was no cut off date.
For the reasons aforesaid this Court finds in favour of the writ petitioners. The application dated 22nd April, 2004 made by the petitioners to WEBEL must be considered by it. It is made clear that this direction is not for revisiting the matter but for considering the matter as one not considered earlier. Such consideration is to be made upon participation invited of the petitioners. WEBEL must consider such application with reference to its record regarding availability of plots of land as on the date of application. They will also consider the suitability of the petitioners as applicant for allotment. Reference to its records for the purpose of rejecting the claim of the petitioners must be upon due notice thereof to the petitioners. In the event WEBEL finds that the petitioners are as suitable applicant for allotment of land but by reason of the passage of time no land is available to be allotted as on date, they shall forward their views to the Urban Development Department, Government of West Bengal. All this must be done by WEBEL within a period of six weeks from the date of receipt of a copy of this order to be obtained and communicated by the petitioners to it. In the vent the application is forwarded to the Government for consideration, the Government will take a decision on it within four weeks thereafter."
6. The learned First Court disposed of both the writ petitions with the following direction:-
"The petitioners not having had due consideration of their application for allotment in the year 2004, if found suitable, must necessarily be allotted land as per the land policy prevailing in the year 2004 as they cannot be put at par with an applicant/bidder for allotment today who had not applied then."
7. On behalf of the appellant this judgment has been assailed mainly on three grounds. The first ground is that the writ petitioner did not have legal right to have its claim for allotment of land considered in the given facts of the case. Second submission of the appellant is on fact. It is submitted that at the point of time writ petitioner had made the application no plot was left for allotment and hence any consideration at this stage would be unworkable. The third ground advanced by the appellant is that as per the present policy, public land of this nature is to be allotted on the basis of auction through a transparent bidding process and the learned First Court ought not to have had directed allotment to be made as per the Rule prevailing in the year 2004 in the event such vacant land was found. The authority relied on this point is Natural Resources Allocation, In Re, Special Reference No. 1 of 2012 [(2012)10 SCC1], which is the opinion of the Hon'ble Supreme Court in a Presidential Reference made under Article 143(1) of the Constitution of India. So far as fresh auction of 2.77 acres of land, stand of the appellant is that this land cannot be made available to the appellant as the same had to be dealt with independently and the appellant has followed the best practice for allocation of public land by making it available to the highest bidder through an open process of public auction.
8. Ms. Meharia contended that her clients had legal right to be considered for allotment of land and cited the following decisions to contend that right to be considered is a civil right which can be enforced in Court of law and the authority denying such right can be compelled by judicial decree or order to act in accordance thereof:-
• Shri Raghunandan Panda Vs. State of Orissa & Ors. [(1975) 1 SCC 106] • P. Mahendran & Ors. Vs. State of Karnataka & Ors. And Malteesh Y. Annigeri & Ors. Vs. State of Karnataka & Ors. [(1990) 1 SCC 411] • N.T. Devin Katti & Ors. Vs. Karnataka Public Service Commission & Ors. [(1990) 3 SCC 157] • Som Parkash Vs. State of Punjab [(1992) 1 SCC 428]
9. We find that the writ petitioners had applied for allocation of land from the State agency at a time when there was no specific invitation for applications or allotments. No such material has been produced before us. The learned First Court, however, declined to accept the appellant's defence on this count finding that no cut-off date had been shown by the appellant for making application for allotment. No record was also produced by the appellant in support of its stand before the learned First Court that no plot was left for allotment at the time the writ petitioners had made their application for allotment. In the event within a reasonable period from the material point of time when the application was made by the writ petitioners the appellant had spelt out the valid reasons for not being able to allot land to Ms. Meharia's clients, the writ petitioners might not have had a cause of action to maintain these two petitions. But what the appellant did was to keep the writ petitioners' applications pending for about three years and thereafter reject the one made in the year 2004 citing "unavoidable reasons" as the reason for rejection. It is in this perspective the writ petitioners have sought to establish their right to be considered for allotment of land. This factor, coupled with the e-mail communication of 21st June, 2012 shows that there was some element of consideration of the writ petitioner's plea for allotment of land. But in our opinion, this kind of prevarication on the part of the appellant on its own cannot create a legal right on the part of the writ petitioner for being allotted public land. The e-mail of June 2012 does not hold out any promise that land would be allotted to the writ petitioners, but redirect them to WEBEL for making application for land.
10. We accept the principle enunciated in the authorities, which mostly deal with the power of judicial review over administrative action, cited by Ms. Meharia, but are unable to apply the principles enunciated in these authorities in the facts of this case. The writ petitioners have failed to demonstrate their right to be considered for allotment of land.
11. We are also unable to accept the learned First Court's view that the Rules prevailing in 2004 ought to be applied for consideration of such application. In the event the writ petitioners could demonstrate that on the basis of such one-off application, similar land was allotted to other applicants on or after the writ petitioners' application was made, then on the ground of discrimination the writ petitioners could have had made out a case of violation of Article 14 of the Constitution of India and insist on adherence to the 2004 Rules. In absence of any allotment scheme or project offering public land for allotment to interested parties, an application on its own made after about 15 years from the point of time after the plots were advertised cannot by itself create any right to be considered for such allotment as per the Rule prevailing on the date of making of such application. Unless other similarly situated applicants were extended the same benefit at around the same time. We accept the argument of Ms. Meharia, learned counsel for the writ petitioners that the reason disclosed in the letter of 19th December 2007 was inadequate. But the question here is what reliefs could flow to the writ petitioners from this deficiency on appellant's part. Even if we find such reasons to be inadequate and not supplementable with details through affidavit affirmed later, we do not think that factor by itself can vest the writ petitioners with any legal right on the basis of which the writ petitioners could stake their claim for being considered for allotment as per the 2004 Rules.
12. It has been argued on behalf of the appellant that it is not open to the Writ Court to direct an applicant's plea to be considered on the basis of lapsed or altered rule and the subsisting policy should apply. On limits of the Writ Court's jurisdiction to issue such mandatory orders, cases cited by the appellant are (i) Oriental Bank of Commerce Vs. Sunder Lal Jain & Anr. [(2008)2 SCC 280] and (ii) State of Kerala & Ors. Vs. Kandath Distilleries [(2013)6 SCC 573]. In the absence of positive materials to show that the entire allotment stood exhausted, the learned First Court had sent the matter back for reconsideration. But we do not think at this stage the allotment Rules of 2004 could apply, having regard to the fact that public auction stands to be the established norm for allotment of public land, as opined by the Hon'ble Supreme Court in Natural Resource Allocation (supra). In the absence of a positive case made out for being considered in accordance with the prevailing Rule of 2004, public land has to be dealt with through a transparent bidding process. We have briefly indicated under what circumstances the writ petitioners could have had established its right to be considered as per 2004 Rules. Such right of the writ petitioners could not have had generated on the basis of inadequate ground disclosed in the letter of rejection or the e-mail communication, to which we have referred to earlier. In the event, specific promise was made to that effect in response to the application of the writ petitioners, then possibly subsequent rejection could be challenged on the ground of promissory estoppel or legitimate expectation. But in this case no such promise was made by the appellant. The writ petitioners' case cannot improve on account of failure on the part of the appellant to produce records. Adverse presumption which can be drawn in such circumstances cannot create right of consideration for allotment in favour of the writ petitioner applying the 2004 Rules. We examined the question of not interfering with that part of the judgment of the learned First Court by which the appellant was directed to consider the writ petitioners' application, but overruling the requirement to consider the application as per the applicable Rules of 2004, which was mandated by the learned First Court. But that would be a futile exercise, as following the opinion of the Hon'ble Supreme Court in Natural Resources Allocation (supra) the allotment has to be on the basis of a transparent binding process. No special circumstances has been pleaded by the writ petitioners as to why exception ought to be made in their case.
13. As regards auction of 2.77 acres of land is concerned, the writ petitioners have no legal right to be considered for allotment of land from this parcel on the basis of their applications for direct allotment. Such land was available to the appellant because of special circumstances, and the auction process was the proper procedure for reallotment of such land. We do not find the writ petitioners had any right to be considered in respect of the said land for allotment as per the Rule prevailing in the year 2004. Under these circumstances, we do not think the writ petitioners were entitled to the reliefs granted by the learned First Court, by sending the application of the writ petitioners to be reconsidered as per the Rule prevailing in the year 2004.
14. Both the appeals are allowed under these circumstances and the judgment of the learned First Court is set aside. No order as to costs.
15. Urgent certified photocopy of this order be made forthwith available to the parties if applied for, subject to compliance with all necessary requisite formalities.
I agree (Sankar Acharyya, J.) (Aniruddha Bose, J.)