Bombay High Court
Anil Shamsundar Agre vs State Of Maharashtra, Through Its ... on 28 September, 2018
Author: Z.A.Haq
Bench: B.P.Dharmadhikari, Z.A.Haq
Judgment 1 pil62.14+9.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
PUBLIC INTEREST LITIGATION NO. 62 OF 2014
WITH
WRIT PETITION NO.5353 OF 2017
WITH
WRIT PETITION NO.5354 OF 2017
WITH
WRIT PETITION NO. 5355 OF 2017
WITH
WRIT PETITION NO.5356 OF 2017
WITH
WRIT PETITION NO. 5357 OF 2017
WITH
WRIT PETITION NO.6132 OF 2017
WITH
WRIT PETITION NO.6133 OF 2017
WITH
WRIT PETITION NO.6134 OF 2017
WITH
WRIT PETITION NO.6135 OF 2017
WITH
WRIT PETITION NO.6552 OF 2016
PIL NO.62/2014.
Anil Shamsundar Agre,
Aged about 45 years, Occu.: Business,
R/o. Plot No.44, Wardhaman Nagar,
Vaishavdevi Chowk, Nagpur.
.... PETITIONER.
// VERSUS //
1. State of Maharashtra,
through its Secretary,
Urban Development Department,
Mantralaya, Mumbai.
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2. Sales Tax Commissioner,
Sales Tax Office, Opposite Uddyog
Bhavan, Civil Lines, Nagpur.
3. Income Tax Commissioner,
Income Tax Office, Civil Lines,
Nagpur.
4. Nagpur Municipal Corporation,
Through its Commissioner,
Civil Lines, Nagpur.
5. The Chief Fire Officer,
Nagpur Municipal Corporation,
Civil Lines, Nagpur.
6. Local Body Tax Head and Assistant
Municipal Commissioner, Nagpur,
Municipal Corporation, Civil Lines,
Nagpur.
7. Vidarbha Cold Storage, through
Shri Prakash Wadhwani, Plot No.1328/B,
A.P.M.C., Kalmana Market Yard, Nagpur.
8. M/s. Wadhwani Cold Storage Pvt. Ltd.,
through Shri Prakash Wadhwani,
A.P.M.C. Kalamana, Nagpur.
9. M/s. Wadhwani Parmeshwari Cold Storage
Pvt. Ltd., Through Shri Prakash Wadhwani,
A.P.M.C. Kalamana, Nagpur.
10. M/s. Kunal Cold Storage Pvt. Ltd.,
Through Shri Prakash Wadhwani,
A.P.M.C. Plot No.1328/B, Kalamana
Market Yard, Nagpur.
11. Nagpur Improvement Trust,
Through its Chairman,
Civil Lines, Nagpur.
.... RESPONDENTS
.
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___________________________________________________________________
Shri Chetan Sharma & Shri P.S.Tiwari Advocates h/f. Shri S.P. Bhandarkar,
Advocate for petitioner.
Shri S.Y. Deopujari, G.P. for Respondent Nos. 1 to 3.
Shri J.B.Kasat, Advocate for Respondent Nos. 4 to 6.
Shri S.P.Dharmadhikari, Sr. Advocate a/b Shri K.N.Shukul, Shri M.I.Dhatrak,
and Shri M.P.Khajanchi, Advocates for Respondent Nos. 7 to 10.
Shri M.V.Samarth, Advocate for Respondent No.11.
___________________________________________________________________
WITH
W.P. NO.5353/2017.
M/s. Suruchi Cold Storage Pvt. Ltd.,
A Company Registered under Companies
Act, Kh.No.55, Bhandara Road, Mouza
Kapsi (Khurd), Nagpur, through its
Director Shri Ravi S/o. Subhash Jain,
aged 45 yrs., Occ. : Business,
R/o. 241, Middle Ring Road,
Wardhaman Nagar, Nagpur.
// versus //
Nagpur Municipal Corporation
(Department of Fire Prevention and
Emergency Services) through its Chief
Fire Officer, Civil Lines, Nagpur.
.... RESPONDENT.
WITH
W.P. NO.5354/2017.
M/s. Wadhwani Cold Storage & Ice Plant
Private Limited, a Company registered
under the Companies Act, through its
Director Shri Prakash S/o. Uttamchand
Wadhwani, resident of APMC, Kalmana
Market, Nagpur.
.... PETITIONER.
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// versus //
Nagpur Municipal Corporation
(Department of Fire Prevention and
Emergency Services) through its Chief
Fire Officer, Civil Lines, Nagpur.
.... RESPONDENT.
WITH
W.P. NO.5355/2017.
M/s. Vidarbha Cold Storage, through
its Partner Shri Prakash S/o.Uttamchand
Wadhwani, resident of APMC, Kalamna
Market, Nagpur.
....PETITIONER.
// versus //
Nagpur Municipal Corporation
(Department of Fire Prevention and
Emergency Services) through its Chief
Fire Officer, Civil Lines, Nagpur.
.... RESPONDENT.
WITH
W.P. NO.5356/2017.
M/s. Kunal Cold Storage Private Limited,
a Company registered under the Companies
Act through its Director Shri Prakash S/o.
Uttamchand Wadhwani, resident of APMC,
Kalamna Market, Nagpur.
....PETITIONER.
// versus //
Nagpur Municipal Corporation
(Department of Fire Prevention and
Emergency Services) through its Chief
Fire Officer, Civil Lines, Nagpur.
.... RESPONDENT.
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WITH
W.P. NO.5357/2017.
M/s. Wadhwani Parmeshwari
Cold Storage Pvt. Ltd., a Company
registered under the Companies Act
through its Director Shri Prakash S/o.
Uttamchand Wadhwani, resident of
APMC Kalamna Market, Nagpur.
....PETITIONER.
// versus //
Nagpur Municipal Corporation
(Department of Fire Prevention and
Emergency Services) through its Chief
Fire Officer, Civil Lines, Nagpur.
.... RESPONDENT.
___________________________________________________________________
Shri M.I.Dhatrak and Shri M.P.Khajanchi, Advocates for Petitioners.
Shri J.B.Kasat, Advocate for Respondent-NMC.
___________________________________________________________________
WITH
W.P.NO.6132/2017
Prakash S/o. Uttamchand Wadhwani,
Aged about 60 years, Occu.: Business,
Director, Kunal Cold Storage & Ice
Factory Pvt. Ltd., APMC Kalamna Market,
Nagpur.
....PETITIONER.
// versus //
1. State of Maharashtra,
through its Principal Secretary,
Urban Development Department-1,
Mantralaya, Mumbai.
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2. Nagpur Improvement Trust,
Nagpur, through its Chairman,
Nagpur.
3. Agriculture Produce Market
Committee, Nagpur, through its
Secretary.
4. The Executive Engineer, Nagpur
Improvement Trust, Divisional
Office (East), Surya Nagar,
Nagpur -35.
.... RESPONDENTS.
WITH
W.P.NO.6133/2017
Prakash S/o. Uttamchand Wadhwani,
Aged about 60 years, Occu.: Business,
Partner, Vidarbha Cold Storage,
APMC Kalamna Market,
Nagpur.
....PETITIONER.
// versus //
1. State of Maharashtra,
through its Principal Secretary,
Urban Development Department-1,
Mantralaya, Mumbai.
2. Nagpur Improvement Trust,
Nagpur, through its Chairman,
Nagpur.
3. Agriculture Produce Market
Committee, Nagpur, through its
Secretary.
4. The Executive Engineer, Nagpur
Improvement Trust, Divisional
Office (East), Surya Nagar,
Nagpur -35.
.... RESPONDENTS.
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WITH
W.P.NO.6134/2017
Prakash S/o. Uttamchand Wadhwani,
Aged about 60 years, Occu.: Business,
Director, Wadhwani Cold Storage and
Ice Plant Pvt. Ltd., APMC Kalamna Market,
Nagpur.
....PETITIONER.
// versus //
1. State of Maharashtra,
through its Principal Secretary,
Urban Development Department-1,
Mantralaya, Mumbai.
2. Nagpur Improvement Trust,
Nagpur, through its Chairman,
Nagpur.
3. Agriculture Produce Market
Committee, Nagpur, through its
Secretary.
4. The Executive Engineer, Nagpur
Improvement Trust, Divisional
Office (East), Surya Nagar,
Nagpur -35.
.... RESPONDENTS.
WITH
W.P.NO.6135/2017
Prakash S/o. Uttamchand Wadhwani,
Aged about 60 years, Occu.: Business,
Director, Wadhwani Parmeshwari
Cold Storage Pvt.Ltd., APMC Kalamna
Market, Nagpur.
....PETITIONER.
// versus //
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1. State of Maharashtra,
through its Principal Secretary,
Urban Development Department-1,
Mantralaya, Mumbai.
2. Nagpur Improvement Trust,
Nagpur, through its Chairman,
Nagpur.
3. Agriculture Produce Market
Committee, Nagpur, through its
Secretary.
4. The Executive Engineer, Nagpur
Improvement Trust, Divisional
Office (East), Surya Nagar,
Nagpur -35.
.... RESPONDENTS.
___________________________________________________________________
Shri M.I.Dhatrak and Shri M.P.Khajanchi, Advocates for Petitioners.
Shri S.Y.Deopujari, G.P. for Respondent No.1.
Shri M.V.Samarth, Advocate for Respondent Nos. 2 & 4.
Shri Uday Dastane, Advocate for Respondent No.3.
___________________________________________________________________
WITH
W.P.NO.6552/2016
M/s. Wadhwani Cold Storage & Ice Pvt.
Limited, a Company registered under
the Companies Act, 1956, Through its
Authorized Director Shri Prakash S/o.
Uttamchand Wadhwani, Aged about
60 years, having its office at APMC,
Kalmana Market, Nagpur-440 008.
....PETITIONER.
// versus //
1. Nagpur Improvement Trust,
Nagpur, Through its Chairman,
Civil Lines, Nagpur.
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2. The Building Engineer(East),
Nagpur Improvement Trust,
Civil Lines, Nagpur.
3. The Chief Fire Officer,
Department of Fire Prevention
and Emergency Services,
Nagpur Municipal Corporation,
Nagpur.
.... RESPONDENTS.
___________________________________________________________________
Shri Virat Mishra & Shri Kaustubh Deogade, Adv. for Petitioner.
Shri J.B.Kasat, Advocate for Respondent No.3.
___________________________________________________________________
CORAM : B.P.DHARMADHIKARI AND Z.A.HAQ, JJ.
DATE OF RESERVING THE JUDGMENT : 30.07.2018.
DATE OF PRONOUNCING THE JUDGMENT : 28.09.2018.
ORAL JUDGMENT : (Per : Z.A.Haq, J.)
1. Heard.
2. Public Interest Litigation No.62 of 2014 is filed with following prayers:
"a. Constitute the Special Investigation Team to make enquiry in respect of economical offences committed by the cold storage owners in the city of Nagpur from time to time and action after investigating the entire matter in accordance with law needs to be taken;
b. that the corporation authority may be directed to make enquiry in respect of unauthorized and illegal construction of cold storage in the city of Nagpur and also violation of fire safety norms and action in accordance with law may kindly be taken;
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c. that Sales Tax and Income Tax department may
kindly be directed to take immediate action against the ware house owners in the city of Nagpur for their illegal activities in evasion of taxes and enjoying said cold storages for commercial purposes and action in accordance with law may kindly be taken;
d. the Corporation, Sales Tax and Income tax department may be directed to submit its action taken report before this Hon'ble Court and also direct to register the offences against the responsible persons and responsible Government officials;
e. grant any other relief deems fit just and proper in the facts and circumstances of the case, in favour of the petitioner, in the interest of justice."
3. After this Court took cognizance of the grievance made in the public interest litigation, it appears that the Nagpur Improvement Trust and Nagpur Municipal Corporation started examining the matter and issued notices pointing out the deficiencies/ illegalities and proposing action against the cold storages and these notices/orders are challenged in Writ Petition Nos.5353/2017, 5354/2017, 5355/2017, 5356/2017, 5357/2017, 6132/2017, 6133/2017, 6134/2017, 6135/2017 and 6552/2016.
4. Writ Petition No.5353 of 2017 is filed by Suruchi Cold Storage Pvt. Ltd. In this petition order issued by Chief Fire Officer on 8 th August, 2017 exercising powers under Section 8(1) of the Maharashtra Fire Prevention and Life Safety Measures Act, 2006 (hereinafter referred to as "the Act of 2006") is challenged. This order states that safety measures in the building are not sufficient/appropriate/adequate and because of it a ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 01:00:13 ::: Judgment 11 pil62.14+9.odt dangerous situation exists, therefore, the occupants should vacate the building immediately.
In Writ Petition No.5354 of 2017 similar order issued by Chief Fire Officer to Wadhwani Cold Storage and Ice Plant Pvt. Ltd., Nagpur on 8 th August, 2017 is challenged.
In Writ Petition No. 5355 of 2017 similar order issued by the Chief Fire Officer to Vidarbha Cold Storage on 8 th August, 2017 is challenged.
In Writ Petition No.5356 of 2017 similar order issued by the Chief Fire Officer to Kunal Cold Storage Private Limited on 08 th August, 2017 is challenged.
In Writ Petition No. 5357 of 2017 similar order issued by the Chief Fire Officer to Wadhwani Parmeshwari Cold Storage Private Limited on 08th August, 2017 is challenged.
5. In Writ Petition No.6132 of 2017 a communication dated 8 th September, 2017 issued by the Executive Engineer, Nagpur Improvement Trust to Prakash Uttamchand Wadhwani, Director of Kunal Cold Storage and Ice Factory Pvt. Ltd. is challenged. By this communication the noticee is informed that the Cold Storage is constructed on the land of Agriculture ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 01:00:13 ::: Judgment 12 pil62.14+9.odt Produce Market Committee (Kalmana Market) unauthorizedly, notice dated 28th April, 2015 was issued under Section 53(1) of the Maharashtra Regional and Town Planning Act, 1966 and though time of 30 days which was granted by the noticee dated 28th April, 2015 lapsed, no steps are taken by the noticee to remove the deficiencies. By the communication dated 8 th September, 2017, the noticee was directed to vacate the building within seven days, failing which the unauthorized construction was to be removed as per the Rules and at the expenses of the noticee.
In Writ Petition No. 6133 of 2017 similar communication dated 8th September, 2017 issued by the Executive Engineer to Prakash Uttamchand Wadhwani, partner of Vidarbha Cold Storage, Nagpur is challenged.
In Writ Petition No. 6134 of 2017 similar communication dated 8th September, 2017 issued by the Executive Engineer to Prakash Uttamchand Wadhwani, Director of Wadhwani Cold Storage and Ice Plant Pvt. Ltd., Nagpur is challenged.
In Writ Petition No. 6135 of 2017 similar communication dated 8th September, 2017 issued by the Executive Engineer to Prakash Uttamchand Wadhwani to Director of Wadhwani Parmeshwari Cold Storage is challenged. ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 01:00:13 :::
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6. In Writ Petition No. 6552 of 2016 a communication dated 24 th August, 2016 issued by the Chief Fire Officer to Wadhwani Cold Storage and Ice Pvt. Ltd., Nagpur is challenged. By this communication, the noticee is informed that the height of the building of cold storage of noticee is 20 meters and according to Table No.30 of the Development Control Regulations, 2000 for Nagpur City, permission could have been granted to building of cold storage having height up to 24 meters, however, according to Note 17 in Appendix-I of the Maharashtra Fire Prevention and Life Safety Measures Rules, 2008 (should be 2009) storage building having height beyond 15 meters cannot be granted permission. By this communication dated 24th August 2016, the noticee is informed that the storage building of the noticee is not granted permission earlier also and therefore, the issue of grant of permission to this building has to be considered as per the Rules of 2008 (should be 2009). The noticee is informed that as the height of building of cold storage is beyond 15 meters permission, cannot be granted.
7. The learned advocates for the respective parties have made various submissions. The advocates for the petitioners (cold storages) have argued that the orders issued by the Chief Fire Officer under the provisions of the Act of 2006 are unsustainable as the Act of 2006 has come into force on 6th December, 2008 and some provisions of the Act of 2006 have come into force on 7th May, 2010 and in all these cases the storage buildings are constructed and have been operational much prior to coming into force of ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 01:00:13 ::: Judgment 14 pil62.14+9.odt the Act of 2006. The submission is that the issue of grant of permission to the Cold Storages has to be examined as per the the Development Control Regulations, 2000 for Nagpur City and Regulation No. 6.2.6.1, 20, 2.55.7 and 2.55.8 are referred.
Section 3(1) of the Act of 2006 is referred and it is argued that the owner or the occupier (if the owner is not traceable) of the building is required to provide fire prevention and life safety measures in such building or part of the building as per the norms laid down under the Act of 2006, Rules of 2009 or any law or the Rules, Regulations or Bye-laws made thereunder or the National Building Code of India, 2005 and if it is pointed out by the authorities that there are certain deficiencies in providing such fire prevention and life safety measures, the cold storages would be providing such measures and remove the deficiencies, if any. The provisions of Section 4, Section 5 and Section 6 of the Act of 2006 are also referred to point out the manner in which the authorities have to take action. Submissions are made on behalf of the petitioners(cold storages) to urge that the orders passed by the Chief Fire Officer under the Act of 2006 cannot be sustained as those orders are not in consonance with the scheme of the Act of 2006 and the authorities have not taken action as prescribed under the Act of 2006.
8. The learned advocates for the Nagpur Improvement Trust and Nagpur Municipal Corporation have supported the impugned orders/ ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 01:00:13 ::: Judgment 15 pil62.14+9.odt communications / actions. One of the relevant submission made on behalf of the Nagpur Improvement Trust and Nagpur Municipal corporation is that none of the cold storages (petitioners before this Court) were granted permission till the Act of 2006 came into force and none of the storage buildings are given Completion/ Occupation Certificate by the competent authorities and in these facts, the submission made on behalf of the cold storages (petitioners) that the entitlement for grant of permission for the cold storages will have to be examined as per the earlier law which applies before the Act of 2006 came into force, is misconceived.
To support this argument reliance is placed on the proviso below sub-section (1) of Section 3 of the Act of 2006 and it is argued that the issue of grant of permission to the storage buildings, the construction of which has been completed immediately before the date of commencement of the Act of 2006 need not be examined as per the Act of 2006 and the Rules framed thereunder and in these cases the owner will be under an obligation to carryout such additional fire prevention and life safety measures, as are specified in the notice served on him under Section 6 of the Act of 2006. Emphasizing on the term "completed" which occurs in the proviso below sub- section (1) of Section 3 of the Act of 2006, it is submitted that owner/occupier of the building can rely on the proviso below sub-section (1) of Section 3 of the Act only if the construction of the building is completed before the date of commencement of the Act of 2006 and this provision ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 01:00:13 ::: Judgment 16 pil62.14+9.odt cannot be relied upon if the construction of the building is not completed before the date of commencement of the Act of 20016 and as the petitioners (cold storages) have not been able to show that Completion/ Occupation Certificates were issued by the Competent Authority before the date of commencement of the Act of 2006, the submission cannot be accepted. Another relevant submission made on behalf of the Nagpur Improvement Trust and Nagpur Municipal Corporation is that the storage buildings are constructed without obtaining sanction for construction from the Competent Authority. It is argued that the cold storages are constructed on the land belonging to Nagpur Improvement Trust and given on lease to the Agriculture Produce Market Committee by the Lease-Deed executed on 25 th August 2011 and the construction of the cold storages is illegal.
9. The Agriculture Produce Market Committee, Kalmana Market, Nagpur (hereinafter referred to as "Market Committee") has filed its reply. The reply of the Market Committee filed in Writ Petition No. 6132 of 2017 is referred. In the preliminary reply sworn on 10 th January 2018 the market committee has admitted that it granted permission for construction of cold storage in and around 1991-92 and the Nagpur Improvement Trust had approved the building plan of the cold storage in 1993. It is stated that the Nagpur Improvement Trust sanctioned the master plan of the Market Committee on 3rd February 1993 and in the master plan, area for cold storage was also shown. In paragraph 4 of the reply it is stated that the ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 01:00:13 ::: Judgment 17 pil62.14+9.odt matter is old and records are not traceable and therefore, the market committee had approached the Nagpur Improvement Trust to get the copy of the approved building plan and other relevant documents. The market committee stated that it would make further submissions after receiving the documents from the Nagpur Improvement Trust.
The market committee has filed additional reply sworn on 6 th February, 2018. In this additional reply it is stated that the Administrator appointed on the market committee issued an order dated 9 th December, 2017 constituting a committee of Executive Engineer, Deputy Engineer and Chief Accounts Officer to inquire into various complaints and submit report. Some of the complaints were in respect of the illegalities in the establishment of the cold storage. In paragraph 4 of this additional reply it is stated that the Nagpur Improvement Trust to which the land belongs was not ready to permit the market committee to sub-let the land and the market committee insisted that Nagpur Improvement Trust should permit it to sub-let the land and the dispute was referred to the State Government also, however, ultimately the market committee accepted the terms and conditions of the Nagpur Improvement Trust as the terms and conditions are as per the statutory Lease-Deed to be executed by the Nagpur Improvement Trust in favour of the lessees. In paragraph No.5 of the additional reply it is stated that the Lease-Deed between the Nagpur Improvement Trust and the market committee is executed on 25th August 2011. A copy of the Lease-Deed, dated ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 01:00:13 ::: Judgment 18 pil62.14+9.odt 25th August 2011 is placed on record along with the additional reply. Clause
(l) on page 3 of the Lease-Deed is to the effect that the lessee shall use the land for Kalmana Market, 30 meter wide roads and parking and use it as per the allotment order and not for other purpose. In the additional reply, the market committee has pointed out that the Deed of Subletting the land on which cold storage is constructed is executed in favour of the petitioner on 5th March, 2012 by the then Secretary who was holding additional charge as Administrator. In paragraph 12 of the Additional Reply, it is stated that though the Deed of Subletting contains the recitals that the market committee had decided in its meeting to execute the Deed of Subletting, the records of the market committee do not contain any such resolution and any reference about it is not found in any document available with the market committee. In paragraph 13 of the additional reply, it is stated that the Director of Marketing has not granted permission as required under Section 12(1) of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963 (hereinafter referred to as "Act of 1963") and Rule 109-A of the Agricultural Produce Marketing (Development and Regulation) Rules, 1967. It is pointed out that as the permission of Director of Marketing is not sought and Nagpur Improvement Trust is also not permitting the sub- letting, the Deed of Subletting is illegal and void ab initio.
10. Additional affidavit sworn on 21st March, 2018 is filed on behalf of the market committee. In this additional affidavit, the facts pointed out in ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 01:00:13 ::: Judgment 19 pil62.14+9.odt the reply filed by the market committee earlier are reiterated. In paragraph No.4 of the additional affidavit it is stated that the Deed of Subletting was executed by the then Administrator four days prior to expiry of his term and just before the elected committee was to enter the office.
The submission on behalf of the market committee is that the storage buildings are constructed unauthorizedly and without complying with the statutory provisions and contrary to the terms and conditions of the Lease-Deed executed in favour of the market committee by the Nagpur Improvement Trust.
11. The petitioners (cold storages) have not been able to produce any material on record to counter the submissions made by the market committee.
In the above circumstances, we find that the storage buildings are constructed illegally and unauthorizedly. The storage buildings are constructed on the land belonging to the Nagpur Improvement Trust and leased out to the market committee, though the Nagpur Improvement Trust has not permitted subletting and in fact has strongly objected to it. The plans of the storage buildings are not sanctioned by the Competent Authority. Deed of Subletting, on which the petitioners (cold storage buildings) rely, are executed surreptitiously by the Secretary/ In-charge Administrator, without following any prescribed procedure.
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12. The Nagpur Improvement Trust and Nagpur Municipal Corporation have emphatically submitted that the cold storages are established and are being run without any permission from the Competent Authority. The Nagpur Improvement Trust and Nagpur Municipal Corporation have submitted that the Competent Authority has not issued Completion/ Occupation Certificate in respect of the storage buildings. The petitioners (cold storages) have not produced any material on record to counter the submissions made on behalf of the Nagpur Improvement Trust and the Nagpur Municipal Corporation.
13. In the above facts, we find that the construction of the storage buildings and running of cold storages is illegal and impermissible. This is a case of illegal usurpation of State/ Public largesse by the petitioners (cold storages) in connivance with the officers concerned. In view of this finding, we are not dealing with the other submissions made by the petitioners (cold storages).
14. At the time of hearing the following judgments were referred:
i) Judgment given in the case of Howrah Municipal Corpn. Vs. Ganges Rope Co. Ltd., reported in (2004) 1 SCC 663,
ii) Judgment given in the case of R. Satyanarayana. Vs. Shantha (Smt.) & Oth, reported in (1999) 5 SCC 704, ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 01:00:13 ::: Judgment 21 pil62.14+9.odt
iii) Judgment given in the case of Syed Muzaffar Ali. Vs. Municipal Corporation of Delhi, reported in 1995 Supp (4) SCC 426,
iv) Judgment given in the case of A.P.State Financial Corpn..Vs..Gar Re-Rolling Mills, reported in (1994) 2 SCC 647, In view of the findings recorded by us that the construction of the storage buildings and running of the cold storages is illegal and impermissible, the findings having not been recorded on facts, in our view, the judgments relied upon by the learned advocates are not required to be considered.
15. Hence, the following order:
i) Writ Petition Nos. 5353/2017, 5354/2017, 5355/2017, 5356/2017, 5357/2017, 6132/2017, 6133/2017, 6134/2017, 6135/2017 and 6552/2016 are dismissed.
ii) The Nagpur Improvement Trust and Nagpur Municipal Corporation and the concerned authorities are directed to take action as per the impugned orders/notices/ communications, within two months.
iii) Prayer clause (c) in Public Interest Litigation No. 62 of 2014, praying for directions to the Sales Tax Department and Income ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 01:00:13 ::: Judgment 22 pil62.14+9.odt Tax Department to take action against the warehouse owners in the city of Nagpur for their illegal activities of evasion of taxes, cannot be granted as the petitioner has not placed on record sufficient material to consider these prayers. Moreover, we are sure that the Sales Tax Department and Income Tax Department might have been and would be discharging their duties sincerely and promptly.
iv) In view of our findings that the construction of storage buildings and running of cold storages is illegal and impermissible and as the storage buildings are constructed on land belonging to Nagpur Improvement Trust and leased out to Agricultural Produce Market Committee (Statutory Body), we are of the view that whatever earnings are made by the petitioners in Writ Petition Nos. 5353/2017, 5354/2017, 5355/2017, 5356/2017, 5357/2017, 6132/2017, 6133/2017, 6134/2017, 6135/2017 and 6552/2016 should go to the State Exchequer to be utilized for public good / common cause.
v) The Commissioner of Income Tax, Nagpur is directed to prepare a report about the earnings of the petitioners in Writ Petition Nos. 5353/2017, 5354/2017, 5355/2017, 5356/2017, 5357/2017, 6132/2017, 6133/2017, 6134/2017, 6135/2017 ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 01:00:13 ::: Judgment 23 pil62.14+9.odt and 6552/2016 during the period from the establishment of the cold storages in question till they are removed. The report shall be prepared on the basis of the income tax returns and sale tax returns submitted by these petitioners for the relevant years.
The Sales Tax/ Goods and Services Tax (GST) Department shall render full co-operation to the Commissioner of Income Tax, Nagpur and make available to him the relevant records. This exercise should be completed and report should be submitted to this Court in PIL No. 62 of 2014, within three months.
vi) The petitioners (cold storage owners) shall appear before the learned Commissioner of Income Tax, Nagpur on 19 th October, 2018.
The learned Commissioner of Income Tax, Nagpur may hear the petitioners before preparing the report to be submitted to this Court.
vii) M/s. Suruchi Cold Storage Pvt. Ltd. (Petitioner in W.P. No.5353/2017), M/s.Wadhwani Cold Storage and Ice Plant Pvt. Ltd. (Petitioner in W.P. No.5354/2017), M/s. Vidarbha Cold Storage (Petitioner in W.P. No.5355/2017), M/s. Kunal Cold Storage Pvt. Ltd. (Petitioner in W.P. No.5356/2017) and M/s. ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 01:00:13 :::
Judgment 24 pil62.14+9.odt Wadhwani Parmeshwari Cold Storage Pvt. Ltd. (Petitioner in W.P. No.5357/2017) shall peremptorily deposit Rs.Twenty Lakhs each with the Registry of this Court, within three months. The said amount would be adjusted in the liability of these cold storages which would be determined as per the report of the Commissioner of Income Tax.
This amount, deposited as per (vii) shall be kept in fixed deposit in any nationalized bank, until further orders. If the petitioners (mentioned in clause vii above) fail to deposit the amount within three months, the Collector, Nagpur shall recover the amount as arrears of land revenue.
viii) The petitioners in Writ Petition Nos. 5353/2017, 5354/2017, 5355/2017, 5356/2017, 5357/2017, 6132/2017, 6133/2017, 6134/2017, 6135/2017 and 6552/2016 are restrained from selling the immovable property/ properties standing/ registered in their name(s) until further orders.
ix) The Director of Marketing shall cause an enquiry against the Secretary of the Agricultural Produce Market Committee, Nagpur and / or the person who was Administrator/ In-charge ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 01:00:13 ::: Judgment 25 pil62.14+9.odt Administrator on Agricultural Produce Market Committee, Nagpur when the Deed of Subletting was executed in 2012 and submit report to this Court in Public Interest Litigation No. 62 of 2014.
List the Public Interest Litigation for further consideration/ orders on 7th January, 2019.
CIVIL APPLN.NOS. 204/2018 & 313/2018.
The intervener is in effect opposing the claim of Cold Storages. As we have already examined the various challenges, we have not considered the challenges raised by the intervener separately.
Both the civil applications are disposed of accordingly.
( Z.A.HAQ, J ) ( B.P.DHARMADHIKARI, J.) L.O.
Advocate Shri Khajanchi appearing for the petitioners/ Cold Storages seeks stay of this judgment for the period of 12 weeks to as to enable the Cold Storages to approach the Hon'ble Apex Court in the matter. He also points out that there will be Dussehra holidays and hence such a long time is required.
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Judgment 26 pil62.14+9.odt During arguments, he also made efforts to show bonafides by depositing some amount without prejudice to rights and contentions of the petitioners/ Cold Storages.
In this situation, considering the nature of controversy, we grant petitioners/Cold Storages time of eight weeks subject to petitioners depositing 50 percent of amount as directed by this Court within three weeks with the Registry of this Court.
The deposit shall not prejudice the rights and contentions of the petitioners / Cold Storages in the matter.
( Z.A.HAQ, J ) ( B.P.DHARMADHIKARI, J.)
RRaut..
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