Jharkhand High Court
Adityapur Industrial Area Development ... vs Bihar State Co-Operative Milk ... on 28 July, 2021
Equivalent citations: AIRONLINE 2021 JHA 1057
Author: Sujit Narayan Prasad
Bench: Chief Justice, Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.581 of 2018
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Adityapur Industrial Area Development Authority through its
Managing Director, Now Regional Director Jharkhand Industrial
Area Development Authority Adityapur Region, Amit Kumar, aged
about 33 years, having its office at Vikash Bhawan, P.O. & P.S. -
Adityapur, District - Seraikella - Kharsawan. ... ... Appellant
Versus
1. 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 Manger, Jamshedpur Dairy Unit (COMPPED)
resident of Circuit House Area, Bistupur, P.O. and P.S. Bistupur,
District - Singhbhum (East).
2. The State of Jharkhand.
3. Secretary, Industries, Department, Government of Jharkhand,
Pragti Sadan, Ranchi, Now Project Bhawan, P.O. Dhurwa, P.S.
Jagarnathpur, District - Ranchi.
4. M/s. Composite Tools company (India) Limited having its works
at M-2 (Part) 6th Phase, Industrial Area, Gamharia, Adityapur,
P.O. Gamharia, P.S. Adityapur, Jamshedpur, Pin 832108
through its Director Sri Ramesh Agarwal, Now District -
Seraikella-Kharsawan. ... ... Respondents
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CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellant : Mr. V.P. Singh, Sr. Advocate
Mr. C.G.A. Bardhan, Advocate
For the Respondent No. 1 : Mr. Umesh Prasad Singh, Sr. Advocate
Ms. Surabhi, Advocate
For the Respondent Nos. 2-3 : Mr. Rakesh Kumar Shahi,
A.C. to S.C. (L&C)-I
For the Respondent No. 4 : Mr. Pandey Neeraj Rai, Advocate
Mr. Akshansh Kishore, Advocate
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C.A.V. on 15.03.2021 Pronounced on 28.07.2021
Per Sujit Narayan Prasad, J.
With consent of the parties, hearing of the matter was done through video conferencing and there was no complaint whatsoever regarding audio and visual quality.
2. Heard parties.
3. The instant intra-court appeal is under Clause 10 of the Letters Patent directed against the order dated 13.06.2018 passed by learned Single Judge of this Court in W.P.(C) No.2529 of 2005 whereby and whereunder the writ petition has been allowed by quashing the order as contained in Memo No. 1331 dated 10.10.2002 passed by the Managing Director, Adityapur Industrial Area Development Authority as well as the appellate order dated 21.04.2005 passed by the Secretary, Industries, Government of Jharkhand and consequently the order of allotment of the cancelled portion of land to the Respondent No.4 by the Respondent No.3 vide impugned order No. 1021/ADA dated 07.05.2005 has also been set aside.
4. The brief facts of the case which are required to be referred, read as under :-
The Adityapur Industrial Area Development Authority (hereinafter referred to as „AIADA‟) allotted 10.00 acres of land in favour of the writ petitioner for processing and supply of milk and milk products to the urban population of Jamshedpur vide letter dated 16.01.1975 as also physical possession of the property was handed over to the authorized representative of Animal Husbandry -3- Department of the erstwhile State of Bihar. Subsequently, the said property was handed over to the writ petitioner, a multi-State co- operative society, having its activities in the State of Jharkhand and Bihar which is an organization of farmers who are producing milk and milk products in the brand name „SUDHA‟. The processing capacity of the petitioner unit has increased from 25,000 litres of milk per day in the year 1984 to 1,30,000 litres of milk per day.
The AIADA issued a letter on 12.05.2001 levelling allegation that about 3.00 acres of land is unutilized and there are certain dues which are pending against the writ petitioner. Subsequently, vide letter dated 25.07.2001 some more dues were included. The writ petitioner sought to clear the dues however certain disputes were raised in connection with the calculation of the interest portion.
Subsequently, another letter dated 10.01.2002 was issued by AIADA stating that about 2.00 acres of land are not being utilized by the writ petitioner and show cause was issued as to why the allotment of unutilized land be not cancelled and possession be not taken over by AIADA. Such decision has been taken on the pretext of certain dues lying against the writ petitioner.
The writ petitioner responded vide letter dated 17/21.01.2002 mentioning therein that the unit of the writ petitioner is a growing unit and they have plans to increase the processing capacity of milk from 1,00,000 litres per day to 1,50,000 litres per day and further it was stated therein that there was no additional land available with the writ petitioner.-4-
The Managing Director, AIADA vide impugned order as contained in Memo No. 1331 dated 10.10.2002 found that 1.00 acre of land was unutilized and the writ petitioner was using this piece of land for plantation of trees and treating this 1.00 acre of land as unutilized land, allotment of land to the extent of 1.00 acre, out of 10.00 acres, was cancelled.
The writ petitioner protested the decision of cancellation by filing appeal before the Secretary, Industries Department, Jharkhand but the said appeal has also been dismissed vide order dated 21.04.2005.
Being aggrieved with the impugned orders, the writ petitioner approached this Court by filing writ petition under Article 226 of the Constitution of India being W.P.(C) No. 2529 of 2005 which has been allowed by quashing and setting aside the order of the Managing Director, AIADA and the appellate order dated 21.04.2005 of the Secretary, Industries Department, Jharkhand respectively against which the present intra-court appeal has been preferred by the AIADA.
5. Mr. V.P.Singh, learned senior counsel appearing for the appellant, assisted by Mr. C.G.A. Bardhan, has submitted that the learned Single Judge has not appreciated the fact that decision has been taken to cancel allotment to the extent of 1.00 acre of unutilized land so that it may be allotted in favour of another entrepreneur for doing business.
The learned Single Judge has further not appreciated the fact -5- that certain dues have been found against the writ petitioner which have not been cleared and as such, if the cancellation of some part of the allotted land has been done by the competent authority of AIADA taking into consideration the dues as also the non-utilization of the said 1.00 acre of land, the decision of cancellation cannot be said to suffer from error but without taking into consideration this aspect of the matter, the impugned order has been passed by the learned Single Judge, which according to learned senior counsel, is not sustainable in the eyes of law.
6. Mr. Umesh Prasad Singh, learned senior counsel appearing for the writ petitioner/respondent no.1, assisted by Ms. Surabhi, learned counsel on record, has submitted by defending the order passed by the learned Single Judge on the ground that the entire land has been allotted in favour of the writ petitioner for a period of 99 years of lease on deposit of a sum of Rs. 2 lacs with a condition to execute lease in the enclosed prescribed form within a period of six months with a further condition to pay rent of Rs.50/- only per acre per year.
According to learned senior counsel, the value of the land has been deposited but consciously the lease has not been executed, therefore, there is error on the part of the appellant and for its own error the appellant cannot be allowed to take advantage by cancelling allotment of a portion of land in order to allot in favour of others.
It has been submitted that the learned Single Judge has -6- appreciated the fact that the land which is being said to be unutilized is actually incorrect presentation of fact as would be evident from the documents available on record as because at the first instance it has been contended by the appellant that 3.00 acres of land has been found to be unutilized, subsequently 2.00 acres of land has been said to be unutilized and thereafter 1.00 acre of land but actually the entire land is being utilized.
So far as 1.00 acre of land is concerned, it is very much evident from the impugned order passed by the authority that the said 1.00 acre of land is full of trees which is the requirement of the day as per the State Pollution Control Board. If the said portion of land will be allotted in favour of third party, the result would be that there will be no plantation of trees and finally there will be objection on the part of State Pollution Control Board in carrying out business by the said unit established on the said land and ultimately the entire unit will be closed down due to non-observance of the pollution parameters. The learned Single Judge has taken into consideration this aspect of the matter and thereafter the impugned decision has been passed, which according to the learned senior counsel, suffers from no infirmity and, therefore, submission has been made that the impugned decision may not be interfered with.
7. We have heard learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge.
8. This Court, before considering the legality and propriety of the -7- impugned order, deems it fit and proper to refer about certain admitted facts which read as under :-
The AIADA has allotted 10.00 acres of land to the writ petitioner vide allotment letter dated 16.01.1975. The unit was directed to deposit a sum of Rs.2 lacs for 10.00 acres of land calculated at the rate of Rs.20,000/- per acre towards provisional cost of the land and its development charges. The other condition therein is that the unit will have to execute lease in the enclosed prescribed form within a period of six months from taking possession of the land with a further condition that the unit will have to pay Rs.50/- only per acre per year. The said rent is liable to be doubled after four years or more and will be revised after every 20 years in accordance with provisions of law or any rules framed by Government of Bihar or the AIADA.
The further condition is that the trees standing at the plot will continue to be the property of the Authority and will not be cut or removed by the unit without taking prior permission from the AIADA. The status of the unit over the allotted land will be that of a licencee till the lease deed is executed and registered by it.
Thus, it is evident that the land in question pertaining to 10.00 acres of area has been allotted in favour of the writ petitioner on deposit of a sum of Rs.2 lacs with a condition to execute lease in the enclosed prescribed form within a period of six months from taking the possession of land and till the execution of the lease deed the status of the unit over the allotted land will be that of a licencee. -8-
Admitted fact herein is that as yet the lease deed has not been executed and, therefore, as per the condition stipulated in the allotment letter, the status of the unit over the allotted land is of a licencee. The writ petitioner has established the unit in the name and style of "Sudha" producing the milk products and as per the averment made in the writ petition as also from the impugned order it is evident that as on date 1,30,000 litres of milk per day is being produced and it is expected to be increased to the extent of 1,50,000 litres per day. It has been informed by the learned counsel for the writ petitioner that the milk is being procured from the villagers/farmers of the local areas and they are also being provided employment and earning therefrom.
While the writ petitioner was carrying out the business of milk products, the Managing Director, AIADA issued a letter as contained in Memo No. 102/ADA dated 18.01.2001 under the caption heading "with respect to payment of dues" (Annexure-2 to the memo of appeal).
It is evident from the said communication that the 10.00 acres of land has been allotted but the cost of land along with the interest as per letter dated 29.01.1999 has not been paid and as such, the said amount has increased to Rs.11,73,388/- in the financial year 2000-01 and hence, request has been made to the writ petitioner to make immediate payment of the outstanding amount. It has also been referred therein that entire allotted land is not being utilized rather 3 to 4 acres of land is still vacant and, therefore, suggestion -9- has been made by the appellant AIADA to the writ petitioner to forthwith return the unutilized land in favour of the Authority and if that will be done, there will be reduction in the cost of the land.
Thus, it is evident that in the communication dated 18.01.2001 reference of non-utilization of land to the extent of 3 to 4 acres has been made.
Again letter has been issued on 12.05.2001 under the signature of the Managing Director, AIADA reiterating the fact and request made in the communication dated 18.01.2001 and requesting therein to make payment and return back unutilized 3.00 acres of land in favour of AIADA upon which the trees have been implanted which is total mis-utilization of industrial land.
The Authority again has issued a communication on 25.07.2001 asking the writ petitioner to forthwith deposit the dues amount to the tune of Rs.1,70,141/- since there is no provision under any regulation of AIADA regarding exemption of the said dues.
The Managing Director, AIADA has again issued a communication dated 10.01.2002 requesting the authority to make payment of an amount of Rs.1,27,660/- as also making reference about non-utilization of 2.00 acres of land which is not being utilized rather the same is having forest over there and as such, direction has been passed to return back the unutilized land failing which the allotment of the unutilized land will be cancelled and the possession over the land will be taken and amount deposited in this regard will be forfeited.
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The appellant has issued the order impugned on 10.10.2002 as contained in Memo No. 1331 by cancelling the allotment of 1.00 acre of land on the ground that 1.00 acre of land is in vacant position and therein plantation has been done and since the land is not being utilized, therefore, exercising power conferred under Sections 6(2)(a) and 6(2)(b) of the Bihar Industrial Areas Development Authority Act, 1974, the allotment of the land to the extent of 1.00 acre has been cancelled.
The writ petitioner approached this Court by filing writ petition being W.P.(C) No. 2529 of 2005 and the learned Single Judge of this Court, after taking into consideration the contention of the writ petitioner as also the importance of plantation of trees which is the mandate of the day and requirement under the environmental laws, has found illegality in the impugned decision of the Authority whereby and whereunder it has been held that since in 1.00 acre of land trees have been planted, it has been held to be unutilized.
It is further evident from the fact available on record and we have gathered from the argument advanced by learned senior counsel appearing for the writ petitioner that although the allotment letter has been issued on 16.01.1975 with a condition to execute a lease deed and till the execution of the aforesaid lease deed the status of the writ petitioner will be of licencee but as yet the lease deed has not been executed.
The writ petitioner has deposited the cost of the land to the tune of Rs.2 lacs as also paid rent as agreed as per the allotment
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letter but lease deed has not been executed and taking advantage of that letters have been issued showing initially 3 to 4 acres of land as unutilized, subsequently the appellant has referred about non- utilization of about 3 acres of land, thereafter 2 acres and finally it has become 1 acre of land which is not being utilized. The reason which has been assigned in the impugned decision of the Authority is that one acre of land since is being used for plantation, it has been held to be unutilized and that is the main reason of cancellation of the allotment of the land to the extent of 1.00 acre as also forfeiture of the said amount but the question is that if 1.00 acre of land is utilized for plantation of trees, will it be said to be unutilized?
It requires to refer herein that the State Pollution Control Board has granted Consent to Operate on 14.10.2009 with the specific terms and conditions that the petitioner unit 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.
9. We thought it proper to consider the enactment of the Environment (Protection) Act, 1986. Admittedly, on the day of allotment of land, which was in the year 1975, the Environment (Protection) Act, 1986 was not in existence, however, the Water (Prevention and Control of Pollution) Act, 1974 was there but in order to look into the issue of environment at global level, the Environment (Protection) Act, 1986 has been enacted.
As per the Environment (Protection) Act, 1986, the environment
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includes water, air and land and the inter-relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property.
The Central Government has been conferred power to take measures to protect and improve environment for which the officers have been appointed with their power and functions. The Act also provides penalty for contravention of the provisions of the Act and the Rules, orders and directions.
Therefore, after coming into effect the Environment (Protection) Act, 1986, it is the legal requirement to protect environment by plantation also.
Subsequently various rules have been enacted to make search and seizure in order to assess pollutant activities of one or the other including units, firms, factories etc. After coming into effect of the Act, 1986 and after the pronouncement of the judgment by the Hon'ble Apex Court in Goa Foundation v. Union of India and Ors., [(2014) 6 SCC 590] and Common Cause v. Union of India [W.P.(C) No.114 of 2014] dealing with the scope of environment and its protection at the global level can it be said that the land is unutilized if plantation has been found over 1.00 acre of land?
10. This Court, after taking into consideration the impact of the Environment (Protection) Act, 1986 and the judgment pronounced by the Hon'ble Apex Court in Goa Foundation v. Union of India and Others (Supra) and Common Cause v. Union of India (supra), is of
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the view that AIADA has taken an arbitrary decision and not only that the said decision is without any application of mind whereby and whereunder it has been held that since 1.00 acre of land contains plantation as such the same has been declared to be unutilized which is absolutely improper on the part of AIADA and AIADA being the machinery of the State under Article 12 of the Constitution of India, cannot be allowed to take such decision because if any unit is following the statutory rule in order to maintain and balance the ecology by following the environmental laws, it will be victimized and penalized. That is exactly the case here since the main reason, as would be evident from the various notices, that the land has been said to be unutilized only because of the reason that the part of the land contains the plantation which according to us, cannot be said to be a valid reason for cancellation of allotment of the land to the extent of 1.00 acre.
Further, it is all along the case of the writ petitioner that the unit is a growing unit and they are planning to increase the milk processing capacity from 1,30,000 litres per day to 1,50,000 litres per day in order to meet out the demand for which several other equipment and other mechanism are to be established including the mechanism for protecting environment.
Further, if the reason of cancellation of 1.00 acre of land as has been assigned by the AIADA i.e. plantation of trees, will be said to be valid one, the ultimate result would be that there will be violation of environmental laws and the petitioner company will be liable for
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prosecution as per the applicable environmental laws but the appellant, without taking into consideration this aspect of the matter, has passed the order on frivolous ground for cancellation of allotment of 1.00 acre of land.
Further, the money has also been forfeited to the extent of 1.00 acre of land which was deposited at the time of allotment. The question is that when the money has already been deposited for the entire land, can it be said to be justified decision by the AIADA to cancel the allotment of 1.00 acre of land absolutely on frivolous ground by forfeiting the amount deposited to the extent of 1.00 acre which according to us is absolutely wrong and improper as because once the amount has been deposited in terms of the conditions of the allotment letter, it is incumbent upon the authorities to follow such terms and conditions but herein it is the AIADA who has not followed the terms and conditions first by not executing the lease deed and secondly, even after receiving the money from the writ petitioner the part of the money deposited to the extent of 1.00 acre of land has been forfeited even though there is no violation of terms and conditions of the order of allotment.
It is settled position of law that one cannot be allowed to take advantage of its own wrong. Herein, as per the agreement, the lease deed was to be executed within six months from the date of deposit of the money but consciously the lease deed has not been executed and in absence thereof, the authorities on the basis of notice, has cancelled 1.00 acre of land. Such decision could not have been taken
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if the lease deed would have been executed and, therefore, if the lease deed has not been executed by the appellant AIADA, no such advantage would be allowed to be derived as has been done in the instant case by cancelling 1.00 acre of land in the garb of non-utilization of land.
11. We, after discussing the facts vis-à-vis the legal position as above, have travelled across the impugned order passed by the learned Single Judge and found therefrom that the learned Single Judge has taken into consideration the requirement of the land by the writ petitioner. The learned Single Judge has further considered the fact that the environmental laws have not been taken into consideration either by the original authority or the appellate authority even though they are the machinery of the State within the meaning of Article 12 of the Constitution of India.
Further, the learned Single Judge has taken into consideration the Consent to Operate having been issued by the Pollution Control Board as on 14.10.2009 containing therein the terms and conditions that the petitioner unit 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, meaning thereby, the learned Single Judge has taken into consideration the effect of the environment balance which has been mandated to be followed under the Environment (Protection) Act and Rules and once the Pollution Control Board has granted Consent to Operate the unit with condition and if it would not be followed, the
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consequence would be penal in nature as such plantation of trees in 1.00 acre of land cannot be construed to be non-utilization of land rather it is requirement of law under Environment (Protection) Act, 1986.
12. This Court, therefore, is of the view that the learned Single Judge after taking into consideration the fact in entirety and considering the impact of the environmental laws as also the Consent to Operate issued by the Pollution Control Board, since has interfered with the impugned decision passed by the administrative authorities, it cannot be said to suffer from any error.
13. Accordingly, the instant appeal fails and is dismissed.
14. Consequently, I.A. No. 1326 of 2021 stands disposed of.
(Dr. Ravi Ranjan, C.J.) I agree (Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad,J.) Birendra/ A.F.R.