Jharkhand High Court
Bihar State Co-Operative Milk ... vs The State Of Jharkhand on 13 June, 2018
Equivalent citations: 2019 (1) AJR 297, (2018) 190 ALLINDCAS 432 (JHA), (2018) 3 JLJR 739, (2018) 4 JCR 378 (JHA)
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 2529 of 2005
Bihar State Co-operative Milk Producers Federation Limited (C.O.M.P.
Fed.) a society registered under the Bihar & Orissa Co-operative Societies
Act, 1935, having its registered office at Dairy Development Complex,
Bihar Veterinary College, Patna-14, having one of its unit at Adityapur
Industrial Area, Gamharia, Jamshedpur, P.O. Gamharia, P.S. Adityapur,
district-Seraikella-Kharsawan through sri A.K. Kulkarni, son of Late K.L.
Kulkarni, Chief Manager, Jamshedpur Dairy Unit (COMPPED), resident
of Circuit House Area, Bistupur, P.O. + P.S. Bistupur, district-Singhbhum
(East) ... ... Petitioner
Versus
1.The State of Jharkhand
2.Secretary, Industries, Department, Government of Jharkhand, Pragati
Sadan, Ranchi
3.Managing Director, Adityapur Industrial Area Development Authority,
Adityapur, Jamshedpur, P.O. Adityapur, district Seraikella-Kharsawan.
4.M/s Composite Tools Company (India) Limited having its works at M-2
(Part) 6th Phase, Industrial Area, Gamharia, Adityapur, Jamshedpur, Pin
832 108 through its Director, Sri Ramesh Agarwal
... ... Respondents
---
CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Petitioner : Mr. Sachin Kumar, Advocate
For the Respondent no. 3 : Mr. V.P. Singh, Sr. Advocate
Mr. R.C.P. Sah, Advocate
Mr. C.A. Bardhan, Advocate
For the Respondent no. 4 Mr. Pandey Neeraj Rai, Advocate
Mr. Mohit Mani Kishore, Advocate
Mr. Rohit Ranjan Sinha, Advocate
---
16/13.06.2018
1. Heard Mr. Sachin Kumar, counsel appearing on behalf of the petitioner.
2. Heard Mr. V.P. Singh, Senior Advocate assisted by Mr. C.A. Bardhan, Advocate appearing on behalf of the respondent no. 3.
3. Heard Mr. Pandey Neeraj Rai, counsel appearing on behalf of respondent no. 4.
4. This writ petition has been filed for the following reliefs:-
(i) For quashing the order dated 21.04.2005 passed by the Secretary, Industries, Government of Jharkhand, the Respondent No. 2 (Annexure-14) by reasons whereof he has rejected the appeal of the petitioner.
(ii) For quashing the order contained in Memo No. 1331 dated 10.10.2002 passed by the Managing Director, Adityapur Industrial Area Development Authority (Annexure-7) by which the said Respondent No. 3 in purported exercise of the power under sub-section (2a) and (2b) of the Jharkhand 2 Industrial Area Development Authority (Amendment) Act, 1991 has been pleased to cancel the allotment of 1.00 acre of unutilised land and forfeiting the value of the land deposited with the Authority.
(iii) For issuance of an appropriate writ in the nature of mandamus commanding upon the Respondents specially the Respondents No. 2 and 3 not to give effect to the orders dated 10.10.2002 passed by the Respondent No. 3 and the order dated 21/04/2005 passed by the Respondent No. 2.
(iv) Any other appropriate writ/order/direction as your Lordships may deem fit and proper for doing conscionable justice to the petitioner.
(v) For quashing the order of land Allotment Order No. 1021/ADA dated 07.05.2005 and the Consequential Possession Order dated 02.06.2005 of the respondent no. 3 made in favour of the respondent no. 4 being illegal and bad.
5. Counsel for the petitioner submits as under:-
a. Vide letter dated 16.01.1975, 10.00 acres of land was made available to the Department of Animal Husbandry, Government of Bihar in Adityapur Industrial Area, by Adityapur Industrial Area Development Authority (hereinafter referred to as 'AIADA') for setting up a unit for processing and supply of milk and milk products to the urban population of Jamshedpur. Thereafter on 16.01.1975, physical possession of the property was handed over to the authorised representative of Animal Husbandry Department, Government of Bihar.
b. Subsequently, the property was handed over to the petitioner who is a multi state co-operative society having its activities in the State of Jharkhand and Bihar and is an organization of farmers who are producing milk and milk products in the brand name 'SUDHA'.
c. He further submits that earlier in the year 1984, processing capacity of the unit was 25,000 litres of milk per day which was subsequently increased to 1,00,000 litres of milk per day some times in the year 1991. As on date, the processing capacity of the unit of the petitioner is 1,30,000 litres of milk per day.
d. Vide letter dated 12.05.2001 issued by AIADA , interalia , an allegation was made against the petitioner that about three acres of land is unutilised and there are certain dues which are pending against the petitioner. Subsequently, vide letter dated 25.07.2001 again some more alleged dues were included.
e. Pursuant to the aforesaid two letters, vide letter dated 31.07.2001 issued by 3 the petitioner, the dues were sought to be cleared and certain disputes were raised in connection with the calculation of interest portion. f. Thereafter vide letter dated 10.01.2002 issued by AIADA , an allegation was made that about two acres of land remained unutilised by the petitioner and show cause was issued as to why the unutilised land be not cancelled and possession be taken over by the AIADA.The said letter also projected certain dues against the petitioner which the petitioner cleared vide cheque dated 21.01.2002.
g. Pursuant to this letter of 10.01.2002, the petitioner responded vide letter dated 17.01.2002/21.01.2002 mentioning that the unit of the petitioner is a growing unit and the then processing capacity was 1,00,000 litres of milk per day and they had a proposal of increasing the processing capacity to 1,50,000 litres of milk per day with the growing demand of milk and accordingly it was contended that there was no additional land which is available with the petitioner.
h. However, the Managing Director, AIADA vide impugned order as contained in memo no. 1331 dated 10.10.2002 found that the total area of one acres of land was unutilised and the petitioner has engaged itself in plantation of trees and treating this land of one acres of land as unutilised, allotment of land to the extent of one acre out of 10 acres of land was cancelled.
i. Counsel for the petitioner submits that the said authority while passing the impugned order dated 10.10.2002 has not taken into consideration the stand taken by the petitioner in reply dated 17.01.2002/21.01.2002 and no personal hearing was also granted to the petitioner.
j. After passing of the impugned order dated 10.10.2002, the petitioner filed representation before the Managing Director, AIADA vide letter dated 21.10.2002 and raised his grievance. But since final order was already passed, the petitioner filed appeal before the Industries Department, State of Jharkhand vide letter dated 31.10.2002 wherein it was clearly mentioned that different areas were mentioned in different letters issued by AIADA. In one letter it was mentioned that three acres of land is unutilised and in other letter, it was mentioned that two acres of land is unutilised. Ultimately it was mentioned in the impugned order that only one acre of land was unutilised, on the basis of which it was contended that remaining portion of the land of 10 acres barring one acre was fully utilised.
4k. The Appellate Authority vide order dated 10.03.2005 directed the petitioner to bring on record the proposed expansion plan which is duly approved by the competent authority, such that a decision may be taken in connection with the actual requirement of land by the petitioner. l. Pursuant to this order dated 10.03.2005, Managing Director of the petitioner vide letter dated 05.04.2005 filed his response by enclosing the lay out plan and also by bringing on record the proposed plan for expansion of the processing capacity from 1,00,000 litres of milk per day to 1,50,000 litres of milk per day. However, it was also mentioned in the said letter dated 05.04.2005 that as the Managing Committee of the petitioner was non functional, therefore, the proposed expansion plan could not be placed before the Managing Committee for approval. The petitioner through its Chief Manager of Jamshedpur Dairy Unit, namely, Mr. A.K. Kulkarni also filed an affidavit before the Appellate Authority, bringing on record the proposed plan for expansion.
m. Counsel for the petitioner further submits that in the meantime, the cancelled plan of one acre of land was allocated to the respondent no. 4 and possession of the same was sought to be given, but there was no physical handing over of the cancelled land of one acre to the respondent no. 4 due to interim order passed by this court vide order dated 28.06.2005 in the instant writ petition.
n. Counsel submits that the Appellate Authority decided the case by order dated 21.04.2005 wherein the said authority arbitrarily recorded that an area of 2.5 acres remained unutilised out of 10 acres and committed error of record and further the said authority upheld the order passed by the Managing Director, AIADA, regarding cancellation of one acre of land. In the said order, it was mentioned that the activity of the petitioner is in the public interest and therefore the land will be allocated to the petitioner in future on priority basis as and when such occasion arises. o. Counsel for the petitioner further submits that requirement of the milk is increasing day by day and as per expansion programme of the petitioner's unit, present processing capacity of the milk in the unit of the petitioner has increased to 1,30,000 litres per day.
p. He further submit that under the provisions of Pollution Control laws, 'Consent to Operate' has been granted to the petitioner vide order dated 14.10.2009. One of the terms and conditions of the said order as mentioned 5 in Clause-10 reads as under:-
"That, he(they) shall submit the environmental statement every year by 30th September and shall harvest all rainwater precipitating in the premises and do three tier tree plantation as air barrier."
q. Counsel for the petitioner submits that plantation of trees is an integral part of the industrial activity as the 'Consent to Operate' mandates that the trees are to be planted. He further submits that out of 10 acres of land, 9 acres have already been utilised and on one acre of land admittedly trees were planted. This is apparent from the impugned order dated 10.10.2002 itself and therefore it cannot be said that the said land stood unutilised. It is reiterated that in order to comply with the various provisions of Pollution Laws some area has to be utilised in the industrial unit for the purpose of plantation of trees. He further submits that while passing the impugned order of cancellation of one acre of land vide order dated 10.10.2002, the Managing Director , AIADA did not taken into consideration the stand of the petitioner regarding the then proposed expansion plan and immediate future requirement of the land.
r. He further submits that if the cancellation order of one acre of land is sustained, then it will be difficult for the petitioner to comply with the terms and conditions of pollution laws so far as requirement of plantation of trees are concerned. It may lead to serious consequences under the Pollution Laws. He further submits that it is not necessary under the law that inch by inch of land has to be utilised for the purpose of industrial unit only, but the plot has to be utilised as a whole for the industrial purpose which includes compliance of various laws including Pollution Laws which mandates plantation of trees as per the consent order issued by the pollution control department itself.
s. Counsel for the petitioner also submits that so far as private respondent is concerned, property in question was never handed over to the private respondent and AIADA has filed a specific affidavit in this regard that in lieu of the plot of land involved in this case , the respondent no. 4 has been handed over another plot of two acres. Accordingly, he submits that no prejudice will be caused to the private respondents herein if the order of cancellation of one acre of land is set aside by this Court. He submits that so far as cancellation order passed in connection with the plot involved in this case and allocated by the respondent no. 4, i.e. one acre of land, is concerned , the same has not been challenged by them.
66. Counsel for the private respondent, on the other hand, submits that although they have not disputed the fact which has been mentioned in the supplementary counter affidavit filed by AIADA regarding allocation of two acres of land in lieu of the portion of land one acre of land involved in this case, but he submits that he has raised objection and is following up the matter with the respondents in AIADA. Accordingly he submits that respondent no. 4 is still interested in the property, however he could not dispute the fact that the possession of the property was never handed over to the private respondents.
7. Counsel appearing for the AIADA submits that AIADA is a distinct legal entity but has not been made party respondent in this case. Rather, the Managing Director of AIADA has been made party and accordingly on this technical ground, the writ petition is fit to be dismissed. He submits that any order which may be passed relates to the property belonging to the AIADA .
8. On merits, he submits that the impugned order dated 10.10.2002 was passed on the ground that one acre of land remained unutilised in which the plantation was made by the petitioner and accordingly the impugned order was rightly passed. He further submits that subsequent development regarding expansion of the petitioner cannot be taken into consideration and the impugned order has to be judged on the basis of status which was on 10.10.2002.
9. However, he could not demonstrate the consideration of the reply filed by the petitioner pursuant to the show cause notice which was filed by the petitioner vide letter dated 17.01.2002 wherein the petitioner had clearly mentioned its proposed plan of increasing the capacity from processing 1,00,000 litres of milk per day to 1,50,000 litres of milk per day and It was contended by the petitioner that the petitioner is not holding any extra land.
10. He further submits that before the Appellate Authority also, although the petitioner was asked to bring on record the approved expansion plan, but the same was not brought on record and instead the plan of expansion which was brought on record was not duly approved therefore the appellate authority has rightly not considered the expansion programme of the petitioner and passed the impugned order dated 21.04.2005 with clear cut finding that as and when there is requirement of land to the petitioner the same will be provided to the petitioner on priority basis. On the point that the appellate authority has recorded that 2.5 acres of land remained unutilised, he submits that same appears to be an error of record. He submits that it appears from the impugned order passed by the Managing Director dated 10.10.2002 that it was only one 7 acre of land in which trees were planted which remained unutilised and rest of the property was utilised by the petitioner.
11. On the point of requirement of plantation of trees for the purposes of consent under Pollution Control laws, counsel for the respondent submits that the 'Consent to Operate' which has been provided to the petitioner in which specific terms and condition has been given that there is requirement of plantation of trees, the same cannot be taken into consideration. But at the same time he could not dispute the fact that if the terms and conditions under which 'Consent to Operate' has been provided to the unit of the petitioner under the pollution control orders are not satisfied , the unit of the petitioner may itself be closed down, and serious consequences will follow on account of violation of pollution laws. He has referred to paragraph nos. 11,17 and 19 of the counter affidavit to submit that there is no clear cut expansion programme of the petitioner and therefore the impugned order was rightly passed not only by the Managing Director of AIADA but also by the appellate authority and he submits that the same do not call for any interference by this court.
12. After hearing counsel for the parties and after considering the materials available on record, this court is inclined to allow this writ petition and set aside the impugned order as contained in memo no. 1331 dated 10.10.2002 passed by the Managing Director, AIADA as well as the appellate order dated 21.04.2005 on account of following facts and reasons:-
i. So far as the objection regarding maintainability of the writ petition on account of AIADA having being not made party respondent in its individual capacity is concerned , this court finds that no such plea was ever taken in the counter affidavit filed on behalf of the Managing Director of AIADA whose order is under challenge and who has been made party respondent no 3 in this writ petition. Moreover this court finds that Managing Director of AIADA is representing AIADA itself and the impugned order has been passed by the respondent no 3 in the capacity of Managing Director of AIADA and not in his individual capacity. The interest of AIADA is being taken care of by the Respondent no 3 and accordingly this court is of the considered view that AIADA is being represented through its Managing Director who is respondent no 3 in this case. Accordingly this technical 8 objection raised by the counsel for the Respondent no 3 is hereby rejected.
ii. From the record of the case it appears that admittedly 10 acres of land was allocated and handed over to the petitioner, out of which one acre of land in which plantation was done by the petitioner was treated as unutilised and was cancelled by the impugned order dated 10.10.2002. Admittedly, the petitioner had filed his show cause reply vide letter dated 17.01.2002, wherein the petitioner had clearly mentioned that capacity of the petitioner for production has to be increased from the then 1,00,000 litre per day to 1,50,000 litre per day and it was contended that it cannot be said that the petitioner was having additional land or more than required land. This show cause reply of the petitioner was not considered by the Managing Director, AIADA as is apparent from the impugned order dated 10.10.2002. The appellate authority vide order dated 10.03.2005 had directed the petitioner to submit the approved plan for expansion and pursuant to which Managing Director of the petitioner had submitted the details of the plan and had clearly mentioned that on account of the fact that the then Board of Director of the petitioner was non-functional, therefore expansion plan could not be placed before the said authority. Thus it appears that the stand of the petitioner which was taken before the Managing Director of AIADA was under active consideration of the appellate authority, but , the Appellate Authority while passing the impugned order has over looked the fact that, the then Board of Director of the petitioner was non-functional, therefore expansion plan could not be placed before the said authority. Further the appellate authority has passed the impugned order under the impression that out of 10 acres of land, 2.5 acres of land was unutilised (although as per the impugned order dated 10.10.2002 passed by the Managing Director, AIADA, the unutilised portion of land was only 1 acre out of 10 acres) and in this background the appellate authority upheld the cancellation of one acre of land. It is 9 undisputed fact that in the mean time the capacity of the petitioner for processing of milk has increased from 1,00,000 litres per day to 1,30,000 litres per day.
iii. So far as the stand of the respondent that developments subsequent to passing of the impugned order dated 10.10.2002 passed by the Managing Director , AIADA should not be considered while examining the legality and validity of the said order is concerned , this court finds that such stand is fit to be rejected. This is because of the reason that on the one hand the show cause reply filed by the petitioner before the Managing Director, AIADA was not considered by the said authority while passing the impugned order dated 10.10.2002 and further the appellate authority himself was actively considering the aspect of the matter as to whether the petitioner has any plan for expansion or not. Moreover it is an admitted fact that in the mean time the capacity of the petitioner for processing of milk has increased from 1,00,000 litres per day to 1,30,000 litres per day. As discussed later in this judgement, this court further finds that even as per pollution control laws , plantation of trees is required to be done and admittedly there is plantation of trees on the cancelled area of one acre and the reason for cancellation is that on this portion of land trees have been planted .
iv. The petitioner has specifically mentioned in para 30E and para 30F of amended writ petition as under:-
" 30E. That the Jharkhand State Pollution Control Board has been issuing consent to operate order on regular basis. One such order dated 14.10.2009 is being brought on record under which the petitioner is required to comply with the provisions of the Air Act, 1981, the Water Act, 1974 as also the EP Act, 1986. Several other rules are also to be followed. It has also been made mandatory for the petitioner to harvest all rain water and to do three tier tree planation as air barrier. The petitioner on annual basis is submitting renewal fees and application for issuing consent to operate order which is being renewed thereafter as no rejection order has been passed.
"30F. That the respondents have committed gross illegality in cancelling the alleged unutilised 1 acre of land knowing fully well that the petitioner 10 should have been allowed to continue with the allotment as expansion was always in pipeline and the petitioner was also required to comply with the provisions of various environmental laws as laid down in the consent to operate order issued from time to time. v. The respondent Adityapur Industrial Area Development Authority has taken a specific stand in paragraph no. 18 of their affidavit dated 23.06.2005 which reads as follows:-
" 18. That the Adityapur Industrial Area Development Authority has a composite plan of developing greenery for ecology and environmental purposes and a unit cannot be permitted to keep a substantive portion of a Development land with all infrastructure non utilised and idle on the excuse of developing greenery."
vi. During the course of the argument the respondents could not dispute the fact that unit of the petitioner cannot run without clearance from the Pollution Control Board as per the terms and conditions of the 'Consent to Operate'. Therefore this court finds that the petitioner was under an obligation in connection with rain water harvesting as well as rainwater precipitating in the premises and do three tier tree plantation as air barrier which has been specifically mentioned in the consent to operate as issued by the pollution control department. This court finds that plantation of trees is sine- qua-non for the purpose of operation of the petitioner's unit and in absence of that, clearance from Pollution Control Board will itself stand withdrawn and will also lead to other consequences under the Pollution Control laws. From the record and from the arguments advanced on behalf of the parties it appears that apart from one acre of land, rest of land has already been utilised by the petitioner and the petitioner is under a legal obligation to undergo plantation of trees. The stand taken by the respondent AIADA in the counter affidavit as quoted above that they have a composite plan for developing greenery for environmental purpose and therefore the land cannot remain unutilised in the name of developing greenery, is hereby rejected. This court finds that the consent to operate having been given to the petitioner by the pollution control board in individual capacity, the 11 obligation under the said consent to operate has to be discharged by the petitioner failing which the consequences shall follow. Accordingly the petitioner is under legal obligation to plant trees as per the terms of the consent order issued by the pollution control board. In that view of the matter, the very fact that plantation has been done in one acre of land , it cannot be said to be unutilised as plantation of trees is required for the purpose of operation of the unit in conformity with the pollution control laws.
13. Considering the aforesaid findings and under the facts and circumstances of this case, this writ petition is allowed and the impugned order as contained in memo no. 1331 dated 10.10.2002 (Annexure-7) passed by the Managing Director, Adityapur Industrial Area Development Authority as well as the appellate order dated 21.04.2005 (Annexure-14) passed by the Secretary, Industries, Government of Jharkhand is hereby quashed and set aside. Consequently the order of allotment of the cancelled portion of land to the Respondent no 4 by the respondent no 3 vide impugned order 1021/ADA dated 07.05.2005 (Annexure- 14/A) is also set-aside.
14. This writ petition is accordingly allowed.
(Anubha Rawat Choudhary, J.) Binit/A.F.R. 12