Allahabad High Court
M/S Aman Tanners & Another vs Director (Leather) Industrial Policy & ... on 12 February, 2013
Bench: Ashok Bhushan, Abhinava Upadhya
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 12.12.2012 Delivered on 12.2. 2013 Case :- WRIT - C No. - 16578 of 2003 Petitioner :- M/S Aman Tanners & Another Respondent :- Director (Leather) Industrial Policy & Promotion & Ors. Petitioner Counsel :- S.P. Singh,Indramani Tripathi Respondent Counsel :- S.S.C.,Akhilesh Kumar Rai,Ashok Nigam,B.N. Singh,K.C. Sinha,Rakesh Sinha,S.K.Anwar ***** Hon'ble Ashok Bhushan,J.
Hon'ble Abhinava Upadhya,J.
(Delivered by Hon'ble Abhinava Upadhya,J.) By means of this writ petition the petitioners are seeking a direction from this Court for extending the benefits of a Scheme launched by the Government of India approved by the Planning Commission for an outlay of Rs. Four Hundred Crores for the Development of Leather Sector under the Indian Leather Development Programme (ILDP) during the Ninth Five year plan out of which Rs. Two Hundred Ninety Crores was allocated for Integrated Development of Leather Sector. The said Scheme known as Tanneries Modernization Scheme (in short TMC) came to be implemented from 18.1.2000.
The grievance of the petitioners is that under the aforesaid Scheme although they were fully eligible yet vide letter dated 21.9.2001 (Anneuxre-15 to the writ petition) the implementing agency rejected the application of the petitioners on the ground that the sale deed of the land is not in the name of the Firm or the Proprietor.
The petitioners have prayed for the following reliefs:
(i)to issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to provide the benefit of assistance under tannery modernisation scheme to the extent of quantum of assistant as provided in the scheme;
(ii)to issue a writ, order or direction in the nature of mandamus commanding and directing the respondents not to deny the assistance facilities under the Tannery Modernisation Scheme on the ground indicated in letter of respondent no.2 dated 14.8.2000 filed as Annexure 6 to the petition in view of answers given by respondent no.1 to question no.8 filed as Annexure-10 to the writ petition;
(iii)to issue a writ, order or direction in the nature of certiorari quashing the operation of letter dated 21.9.2001 filed as Annexure-15 to the petition;
(iv)to issue any other and further orders which this Hon'ble court may deem fit and proper in the facts and circumstances of the case and to which the petitioner is entitled in law.
(v) to award cost of the writ petition to the petitioner.
Sri Indramani Tripathi, learned counsel appearing for the petitioners submits that the petitioners applied for providing them the financial assistance under the aforesaid Tannery Modernization Scheme. Upon the aforesaid application certain queries were made and certain other documents were required to be furnished by the petitioners.
As submitted by the learned counsel for the petitioners, the facts, in brief, are that the aforesaid Tannery Modernization Scheme was introduced as a Pilot Project in January, 2000 by the Department of Industrial Policy and Promotion in the Ministry of Commerce and Industry and initially allocation of Rs. 9,65,00,000/- was made during 9th Five Year Plan keeping in mind the 10th Five Year Plan. Allocation of fund was made for the entire projects with annual outlay also. In order to achieve the objective of the Scheme to support existing tanneries for Undertaking Modernization Programme for better capacity utilization, reducing wastage and achieving productivity gains a broad eligibility criteria was fixed which included all existing tanneries unit undertaking viable modernization programme for assistance. The said modernization programme was funded by the Industrial Development Bank, Small Industries Development Bank of India The State Financial Corporation and Banks etc. Those tanneries were also included which had undertaken modernization from their own resources.
Financial assistance under the Scheme was made available only for such projects in which the loan by the Bank/ Financial Institution was sanctioned on or after the date of notifying that Scheme. Quantum of assistance by the Government and the Financial Institution was limited to 30% of the cost of the machines in case of small scale units and 20% for non-small scale units.
The term of assistance was that an agreement was required to be executed prior to the disbursement of assistance. Secondly, the assistance could be released only after arrival of machines at site and at every stage it will be limited to 20-30 percent of the cost of machines. Thirdly, the Industrial Units were required to submit operational and performance details upto two years from the date of completion to the designated agency and lastly, the assistance released would be adjusted towards loan component ear marked for the machines required for the modernization programme.
The Scheme also provides the Procedures for Sanction and disbursement of assistance for which it designated the implementing agency to be the Project Management Unit of National Leather Development Programme (in short the PMU-NLDP). The nodal agency, for release of assistance, monitoring and interface and coordinations with financial assistance, Banks and the Government was the Small Industries Development Bank of India. In case any loan was availed by the Industrial Unit for Modernization Programme, that unit was required to apply for assistance in a prescribed application form to the concerned financial institution and Banks which was to forward the application along with its recommendations and letter of sanction to the implementing agency, i.e., the Programme Management Unit of NLDP for consideration of sanction of assistance by a Steering Committee constituted for the purpose consisting of a nominee of the Small Industries Development Bank of India, a nominee of Central Leather Research Institute, representatives of Department of Industrial Policy and Promotion, representatives of SCSSI and representatives of Finance Wing of DIUPP and National Programme Manager of SIDE-NLDP (convenor). However, in case of programme involving no loan component, the industrial unit was required to apply in prescribed application form to SIDBI directly which in turn would forward it to the Programme Management Unit for sanction by the Steering Committee. Implementing Agency and the Steering Committee were responsible for identifying the industrial unit, who had applied and were also responsible for fixing criteria for the implementation of the programme.
It is submitted that the petitioners applied for assistance and various correspondence ensued between the petitioners and the nodal agency requiring from the petitioners time to time certain information and other requirement as per the programme. One of the papers that were required was with regard to the title over the property upon which the said tannery of the petitioners existed.
Learned counsel for the petitioners submits that the petitioners had furnished an agreement to sell with regard to the property in question being plot no. 955 Ka dated 27.6.1992 (Annexure-4 to the writ petition). The claim of the petitioners was considered by the Steering Committee so constituted under the Scheme, but vide letter dated 14th August, 2000 the petitioners were informed that they were ineligible for financial assistance on the preliminary ground of the absence of any sale deed of the land either in the name of the petitioners or the firm.
It is submitted that the petitioners replied to the aforesaid letter stating that the said agreement to sell is a registered agreement executed on 27.6.1992 in favour of petitioner no.2, who is the proprietor of the firm and on the basis of such an agreement a compromise proposal was made in January, 1992 in the court of Civil Judge, Kanpur Nagar and upon which a compromise decree by the civil court has been passed in a suit for specific performance filed by the petitioners being Suit No. 297 of 1992 dated 2.2.1993 which has been filed as Annexure-SA-4 to the supplementary affidavit.
According to the learned counsel for the petitioners, the aforesaid decree passed in terms of the compromise, should have been treated to be a valid document with regard to the title of the petitioners over the property in question. The aforesaid assertion has been made especially in the light of the answer given by the implementing agency with regard to frequently asked question no.8 quoted below:
"Whether a third party who has taken an existing tannery on lease/rent and wants to go for modernization would be eligible for assistance?
Ans. Yes. Provided the third party has taken the tannery on lease/rent through the registered deed and tenancy/ lease is available for a minimum period of five years to be reckoned from date of sanction of assistance.
In the light of the aforesaid reply, it is claimed by the learned counsel for the petitioners that the petitioners were on much better footing having a registered agreement to sell upon which a compromise decree was passed and, therefore, not accepting the claim of the petitioners for assistance under the said Programme, they have been discriminated. It is further claimed that for the subsequent Five Year Plan the programme with the same objective which was launched by the Government of India in the name of a Scheme known as "Integrated Development of Leather Sector (in short the IDLS) launched during the 10th Five Year Plan, the petitioners' claim has been accepted and they have been granted assistance.
According to the learned counsel for the petitioners, the Scheme known as IDLS is a continuation of the Tannery Modernization Scheme(TMS) of the 9th Five Year Plan and, therefore, the petitioners are also entitled for assistance under the Tanneries Modernization Scheme of 9th Five Year Plan and the Steering Committee and the Implementing Agency upon rejecting the claim of the petitioners on flimsy ground have acted arbitrarily and without application of mind.
In the counter affidavit the stand taken by the Government is that the Tannery Modernization Scheme under the 9th Five Year plan gives a broad out line for the assistance to be extended to certain sector. The Implementing Agency and the Steering Committee which consists of expert was responsible for the implementation of the programme and for co-ordination and monitoring of the assistance in order to benefit the beneficiaries, i.e., the tannery.
According to the learned counsel for the respondents, the Steering Committee upon relevant consideration that the petitioners did not have title over the property in question nor did it have a lease deed or tenancy deed for 5 years, rightly rejected the claim. It is submitted that ultimately the petitioners did present a sale deed for the said property then for the subsequent 5 years plan under a different scheme known as IDLS they have been granted assistance. It is submitted that the Tannery Modernization Scheme was launched with allocated fund for 9th Five Year Plan during which the petitioners could not fulfill the criteria as they did not possess a valid sale deed or a lease deed or a tenancy deed, therefore, the Steering Committee consisting of experts have rightly rejected the claim for that period and now that the new scheme has been launched, benefit of which has been availed by the petitioners, the petitioners cannot be allowed assistance for Scheme which stand concluded.
We have heard learned counsel for the petitioners and the learned counsel for the respondents and have perused the pleadings and the annexures filed therewith.
When the Government draws a plan in every five years, various sectors are identified which need attention and assistance etc. for which comprehensive fund allocation is made along with annual allocation as to how much assistance would be given to the said Sector. Under such Five Year Plan the aforesaid Tannery Modernization Scheme was launched in order to assist the leather sector for its improvement. For the implementation of the said scheme the Implementing Agency as well as the Steering Committee was constituted.
The Tannery Modernization Scheme upon which our attention has been drawn gives a broad outline as to how the same will be implemented and for the nitty-gritty the Steering Committee was constituted consisting of experts from the field of Industries and Leather Sector. They considered the claim of the petitioners and in their wisdom found that the petitioners having no valid right over the land were ineligible for assistance.
This Court exercising its jurisdiction under Article 226 of the Constitution of India cannot replace the Steering Committee which has been specifically constituted for the implementation of the scheme. All that, this Court will have to see, is whether any fundamental or statutory right of the petitioners is infringed or whether they have been discriminated or not and if Steering Committee requires certain documents which according to them is important for the proper implementation of the programme this Court will not sit in judgment whether those documents were actually required or not, unless absurdity is written large on it.
The claim of the petitioners was that they were having an agreement to sell upon which compromise decree was passed and, therefore, the petitioners had title over the land in question and the authorities in not accepting the same, have acted in violation of the scheme itself.
From the record it appears that vide letter dated 10.7.2000 the Programme Officer of the Steering Committee wrote a letter to the petitioners referring to some telephonic discussion and reminding the petitioners to send certain documents. Thereafter, on 14.8.2000 another letter was sent by the Programme Officer of the Steering Committee informing the petitioners that since the sale deed of the land has not been produced, therefore, the petitioners are ineligible under the aforesaid scheme. It appears that the petitioners represented against the aforesaid order and then vide letter dated 23rd August, 2000 the Programme Officer of the Steering Committee informed the petitioners that the land upon which the tannery is situated appears to be under litigation and wanted further clarification so that the same could be put up before the Steering Committee for consideration. The petitioners thereafter submitted the compromise decree along with the memo of compromise and the registered agreement to sell which was responded to by the Programme Officer vide letter dated 11.9.2000. The relevant portion of the letter is quoted below:
"We have received the compromised proposal of the Court along with your letter. In the compromise proposal it has been mentioned that in case the seller fails to execute the sale deed, then the same should be got executed through the Court of Law. We presume, in view of our earlier correspondence, the sale deed is yet to be executed in your favour. Kindly confirm the position and also arrange to send us a copy of the certified order immediately."
Thereafter, again correspondences were exchanged between the petitioners and the Steering Committee. Vide letter dated 7th August, 2001 the Steering Committee again wrote to the petitioners that only document in their possession is an agreement to sell which is in the name of the sole proprietor of the firm and the proprietor has confirmed that no sale deed has been executed so far. Then again on 23.7.2001 it was again inquired from the petitioners whether any sale deed in terms of the compromise decree has been executed or not and finally when the petitioners could not produce the sale deed with respect to the land, the Programme Officer of the Steering Committee vide its letter dated 27th September, 2001 informed the petitioners that the request for re-consideration of the petitioners' application for assistance under the above scheme has been rejected by the Steering Committee after due consideration on the ground that till date no sale deed of the land has been provided.
From the aforesaid correspondence, as noted above, it appears that the petitioners did not have registered agreement to sell and in the aforesaid Suit No. 297 of 1992 a compromise decree was passed that in case the parties to the agreement do not execute the sale deed, the sale deed would be executed by the court but the fact remains that in spite of the compromise decree the sale deed could not be executed. Mere decree passed on the basis of compromise entitles the decree holders to get the decree executed but unless the execution fructifies into a sale deed, it cannot be said that the petitioners had valid title over the property in question.
According to the learned counsel for the petitioners, the compromise decree was passed way back in the year 1993. When the Steering Committee required the petitioners to produce the sale deed on the basis of the aforesaid decree, it fails to reason as to why the petitioners could not get the sale deed executed in compliance of the compromise decree and, therefore, in our considered view, the petitioners having failed to produce the sale deed, there was no error on the part of the Steering Committee to reject the claim of the petitioners.
It is not the case of the petitioners that some other similarly situated unit has been granted the benefit. It is also not the case of the petitioners that there was no requirement for a unit to have any right or title over the land upon which the unit exists as the petitioners themselves have brought on record by way of pleading that even those units will be eligible for assistance, who have either tenancy deed or lease deed in their favour for at least five years duration starting from the date of the sanction of the assistance. Although in the supplementary counter affidavit the respondents have stated that considering the wide variations in ownership pattern of the land pertaining to the proposal of the tanneries, the issue of ownership was discussed during the Fourth Steering Committee held on 18.7.2000 at Udyog Bhawan, New Delhi. It is submitted that after discussion the Steering Committee defined the eligibility of assistance with respect to the ownership of land as mentioned in para 5 of the supplementary counter affidavit quoted below:
"The Committee felt that ideal situation would be where the land belongs to the applicants; be it an individual, partnership firm or a company. In all such cases, tanneries are eligible for assistance.
Where the lease is from the Government Agencies, the Committee decided that such cases are clearly eligible for assistance.
Where due to myriad reasons the ownership of the land belongs to a director in the Company, a relative or a partner in the firm, such applicants should also be eligible for assistance subject to the following additional conditions being complied by them, as it would facilitate subsequent recoveries in future.
"The owner of the land should also be a signatory to the agreement being executed for availing assistance under the Tannery Modernization Scheme binding him/her to the conditions for availing the assistance.
The Steering Committee also discussed the question regarding extending assistance under the scheme to the tanneries on rent and decided that the owner of such tanneries are not eligible for assistance as they are not working it was also decided that tenants are also not eligible for assistance.
The petitioner's application was submitted before the Steering Committee during its meeting held on 18th July, 2000 and the Committee took a decision not to approve the assistance as sale deed was not available in the name of the firm. The decision was in view of the above-mentioned criteria decided with regard to ownership of land."
The petitioners in reply by way of supplementary rejoinder affidavit has denied the aforesaid but no instance has been brought on record that any tannery was given assistance which did not fulfill the eligibility criteria laid down by the Steering Committee to assert violation of Article 14 of the Constitution of India. The element of bias also cannot be attributed to the respondents as adhering to the eligibility criteria with respect to the ownership of the land when the petitioners produced the sale deed, the Steering Committee sanctioned the assistance of the petitioners for the next five year plan in the Scheme known as "Integrated Development of Leather Sector (in short the IDLS).
Under the the aforesaid facts and circumstances, the petitioners are not entitled to the assistance as claimed by them under the earlier Scheme known as "Integrated Development of Leather Sector (in short the IDLS).
The writ petition has no merit and it is, accordingly, dismissed.
Order Date :- 12.2.2013 SKM