Rising India Food & Beverages ... vs State Of ...
2017 Latest Caselaw 8198 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
RESERVED                                                                                               
 
Case :- MISC. BENCH No. - 6056 of 2013
 
Petitioner :- Rising India Food & Beverages Thr.Prop.Dr. R.L. Gupta & Anr.
 
Respondent :- State Of U.P.Thr.Prin.Secy.Industry U.P.Civil Sectt.& Ors.
 
Counsel for Petitioner :- Anil Kumar Srivastava
 
Counsel for Respondent :- C.S.C.,Manoj Sahu
 

 
Hon'ble Dr. Devendra Kumar Arora,J.

Hon'ble Rajnish Kumar,J.

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard Sri Anil Kumar Srivastava, learned counsel for the petitioners and Sri Manoj Sahu, learned counsel for the opposite party nos. 2 to 4 and Learned Standing Counsel for opposite party no. 1.

2. The petitioners have approached to this Court for a direction to the opposite parties in the nature of mandamus to allot 6400 sq. meter land to the petitioners in Agro Park, Karkhiyaon, Varanasi for establishing food processing and mineral water plant.

3. The facts, in brief, as emerged from the writ petition are that the petitioner no. 1 is a proprietorship firm in the name and style of Rising India Food Beverages, having its registered head office at 2035 (F/F) Chitra Gupta Road, Paharganj, New Delhi- 110055, having its local office at B-2/31, Ananta Colony, Nadesar, Varanasi.

4. In pursuance of an advertisement for allotment of plot in industrial area, namely, Agro Karkhiyaon, Varanasi, U.P., the petitioner has applied for a plot measuring area 20x40x8= 6400 sq. meter for setting up unit of food processing and mineral water plant on prescribed application form.

5. The petitioner no. 2 had submitted application form on 29.08.2011 alongwith a letter, demand draft of Rs. 2,88,020.00/- with a copy of project file and utilization plan on behalf of the petitioners. The petitioner no. 2 received a letter dated 22.09.2011, by which he was informed to appear in Regional Office Varanasi at 12.00 p.m. on 30.09.2011 for interview. Thereafter, vide registered A/D containing reference No. 1247/SIDC/RMV/1A-Karkhiyaon/ Plot No. D-95, D-96 dated 19.11.2011, a plot measuring about 3600 sq. meter has been allotted to the petitioners. Petitioners having been directed by respondent no. 3, namely, Sri K.K. Yadav, Regional Manager to deposit at his office Rs. 33440/- (Earnest Money and Advance Premium Rs. 285520.00/- has been adjusted) i.e. approximately equal to 10% of the total premium of plot at provisional rate of Rs. 886.00/- per sq. meter.

6. Aggrieved by the allotment order dated 19.11.2011, the petitioner no. 2 represented his grievance before respondent nos. 2 and 3 through registered post dated 03.12.2011, specifically mentioning therein that the purpose for establishment of automatic plant will be frustrated by such small piece of land and as per the knowledge of the petitioners, UPSIDC has sufficient vacant land adjacent to the land allotted to the petitioners.

7. It has further been averred that as per the proposed land use plan, the total required area is 6400 sq. meter, in which covered area proposed is 2000 sq. meter and required open area is 4400 sq. meter. Open area measuring 4400 sq. meter is required for making arrangements for the discharge of industrial effluents according to laws in force and rules made thereunder from time to time. Space is also required for the residence of essential staff, for which 6% of the total plot or 10% for the covered area, whichever is less, can be used. Requirement of area for digging tube well is also not sufficient. It has also been pointed out that no industry can be established pollution free. To control the pollution for the safe discharge of industrial effluents, sufficient land is required for planting the trees for checking pollution and for making underground treatment plants for safely discharging the industrial effluent. It has further been averred that after submitting the representation, the petitioner no. 2 personally contacted to respondent no. 4 and stated his difficulty before him, but he did not paid any heed to his request, as he was interested in bribery and illegal considerations.

8. Being aggrieved by the action of the opposite parties, the petitioner had approached to the Hon'ble High Court of Judicature at Allahabad by means of Writ C No. 75439/2011, which was dismissed with the observation that it is always open to the petitioner to negotiate with the corporation, i.e., opposite parties. Thereafter, the petitioner approached to the respondents personally for negotiating a settlement in view of directions of this Hon'ble Court but the petitioner was refused any redressal of his grievance. Hence, having been left with no other alternative but to approach the State Government for action against the authorities of the Corporation against such gross corrupt practices, the petitioner submitted a representation to the Secretary Industries, Ministry of Industries, Government of U.P. and also to the Chief Minister of U.P. Government, in a manner of complaint against the opposite parties but no action has been taken as yet.

9. The petitioners have further averred that they have sought information under the Right to Information Act regarding vacant plots available in the UPSIDC and they have got the information that E-type 8 plots, Serial Nos. 58 to 65 are fully vacant, which were supposed to be allotted to the petitioners and adjacent to the plot allotted to the petitioner, sufficient area is vacant in Agro Park, Karkhiyaon, Varanasi, U.P. The opposite parties issued a publication for the re-allotment of the vacant plot instead of allotting the plot to the petitioner hence the petitioners approached to this Court by means of the present writ petition.

10. The opposite party nos. 2 to 4 have filed a counter affidavit raising objections regarding maintainability of the present writ petition before this Hon'ble Court on the ground that cause of action arose at Varanasi and Kanpur, hence no writ petition can be filed before this Hon'ble Court at Lucknow. The other objections regarding maintainability of the writ petition is that the petitioners have earlier filed Writ Petition No. 75439/2011 before Hon'ble High Court at Allahabad in which the Hon'ble Court has been pleased to dismiss the writ petition but no liberty was granted, hence, the present second writ petition is not maintainable.

11. It has further been averred in the counter affidavit that after receipt of the certified copy of the order dated 07.09.2012 passed by this Hon'ble Court at Allahabad (supra), the matter was considered by the authorities and opposite party no. 4 issued a letter dated 06.02.2013 stating therein that 3600 sq. meter land is sufficient to establish the plant, as stated by the petitioner no. 2. It has also been averred that if petitioner applies according to law, then the department is also willing to give the adjacent plot No. D-97 to the petitioner. It has further been pointed out in the counter affidavit that according to Rule, covered area may be upto 60% for non polluting units of the total allotted land. In the present case, 2000 sq. meter is covered area and required open area is 1600 sq. meter and actual project report submitted by the petitioner was examined and scrutinized by the project section, Head Quarter of Corporation, wherein it is found that 2860 sq. meter is sufficient for his project and in spite of this, 3600 sq. meter was allotted to the petitioner by the then R.M./ Opposite Party no. 5, hence, there is no need for allotment of other plots. It is also averred that 3600 sq. meter is sufficient for the petitioner to run the plant, as alleged and there is no vacant land measuring about 6400 sq. meters. It has also been pointed out that the main aim of the UPSIDC is to promote the industries and in this regard, the department develops the industrial areas and there is procedure for allotment of industrial land/plot and without procedure, no land is allotted as per the choice of anyone and at the time of advertisement, only developed plots were advertised.

12. It has further been pointed out that after receipt of order passed by Hon'ble High Court of Judicature at Allahabad, the department proceeded in accordance with law and issued a letter to the petitioner no. 2 on 03.03.2012 and also informed to the department vide letter dated 22.03.2012 stating therein that on the basis of inspection report, the department allotted land No. D-95 and D-96 to the petitioner having an area of 3600 sq. meter on 19.11.2011 and allotment letter was also issued but the petitioner failed to deposit the reserve money to the tune of Rs. 33440/- within 30 days and without depositing reserve money, he approached to the Hon'ble High Court and levelled false allegations on the opposite party no. 4.

13. The petitioners have filed a rejoinder affidavit reiterating the averments made in the writ petition.

14. Learned counsel for the petitioners submitted that the petitioners had applied for a plot measuring 6400 sq. meter for setting up unit of food processing and mineral water plant on prescribed application form but they have been allotted only 3600 sq. meter of land, which is insufficient for establishing the plant. Accordingly, the petitioners have approached to this Court earlier by means of filing Writ C No. 75439 of 2011, wherein it was left open to the petitioners to negotiate with the corporation. In pursuance thereof, the petitioner no. 2 approached to the opposite party no. 4 but he did not paid any heed as he was interested in bribery and illegal considerations, which the petitioners could not fulfill, so the petitioners have not been allotted additional land, though it is lying vacant adjacent to the plots allotted to the petitioners. Further submission of learned counsel for the petitioner is that as per the information given in the Right to Information Act, other plots are vacant and available with the UPSIDC in the scheme in question but instead of allotting additional land to the petitioner, publication for re-allotment of the vacant plots has been made and it is on account of the bad conditions prevailing in the respondent-corporation, which has also been taken note of by this Hon'ble Court in a judgment.

15. Further submission of learned counsel for the petitioners is that the opposite parties may be directed to allot 6400 sq. meter land to the petitioner in Agro Park, Karkhiyaon, Varanasi, U.P. for establishing food processing and mineral water.

16. Sri Manoj Sahu, learned counsel for the opposite parties vehemently opposed the request of the learned counsel for the petitioners and submitted that present writ petition is not maintainable as no cause of action arose in the territorial jurisdiction of this Bench and the cause of action arose at Varanasi and Kanpur, hence, the present writ petition is not maintainable before this Court. Further the petitioners had already approached to this Court at Allahabad by filing Writ C No. 75439 of 2011, which was dismissed but no liberty was sought by the petitioners or granted by the Hon'ble Court, hence the present second writ petition is not maintainable and barred by res judicata. Thirdly, the submission of the learned counsel for the opposite party nos. 2 to 4 is that in pursuance of the order dated 07.09.2012 passed by this Court in Writ C No. 75439 of 2011, the matter was considered and order dated 06.02.2013 contained in Annexure No. CA 2 has been passed by the Regional Manager, UPSIDC but the same has not been challenged by the petitioners, so also the present writ petition is not maintainable.

17. Learned counsel for the opposite parties no. 2 to 4 further submitted that the petitioners were alloted 3600 sq. meter of land in place of 6400 sq. meter in pursuance of the report of the project section submitted after scrutiny of the project report of the petitioners and vide allotment letter dated 19.11.2011 the petitioners had to deposit the allotment money of Rs. 33440/- within 30 days but the same was not deposited and the case was filed before the Hon'ble Court. So after re-considering the representation dated 07.02.2011 of the petitioners, the petitioners were granted ten days' further time to deposit the reserve amount with interest with the condition that failing which the allotment of plot would stand cancelled automatically and it was informed to the petitioners vide letter dated 03.03.2012 but the petitioners have failed to deposit the same. Accordingly, the allotment in favour of the petitioners stand cancelled hence now no relief can be granted to the petitioners. It has further been submitted that though a recommendation was made for alloting additional plots, as demanded by the petitioners which was examined but as per the project report made available by the petitioners, the allotment of 3600 sq. meter of the land was found sufficient. On the basis of aforesaid submissions, the submission of learned counsel for the opposite party nos. 2 to 4 is that the writ petition is neither maintainable before this Court nor tenable in the eyes of law, as it is totally misconceived and liable to be dismissed with cost.

18. In regard to the submission of the learned counsel for the opposite party nos. 2 to 4 regarding maintainability of the writ petition, counsel for the petitioners submitted that since the petitioners have approached to the State Government against the inaction of the opposite parties nos. 2 to 4 so the present writ petition is maintainable before this Court. Regarding other objections, i.e. of filing earlier writ petition, it has been stated that since it was left open to the petitioner to negotiate with the Corporation and petitioner no. 2 negotiated with the respondent-corporation but when no fruitful purpose was served, the petitioners have approached to this Court, as such present writ petition is maintainable and is liable to be allowed.

19. We have considered the submissions of the parties and gone through the records.

20. Since the question of maintainability of writ petition has been raised by the opposite parties, it has to be considered first. Considering the same we found that on the basis of the documents filed before us the petitioners had applied before the opposite party nos. 2 to 4 for allotment of plots at Kanpur and the application was made for setting up the unit at Varanasi and prayed in the present writ petition for a direction for allotment of land at Varanasi. As such, the present writ petition has been filed in respect of a cause of action, which is beyond the territorial jurisdiction of this Bench. So far as submission of counsel for the petitioners regarding submission of a representation to the State Government on account of non-action of the opposite party nos. 2 to 4 is concerned, we do not find any force in the arguments as the counsel for the petitioners has failed to point out any provision under which such a representation can be submitted before the opposite party no. 1. It is also well settled that merely by making a representation, the Court does not get the territorial jurisdiction to entertain the writ petition. Secondly, the petitioners had earlier approached to this Court at Allahabad by means of Writ C No. 75439 of 2011, which was dismissed but no liberty was granted, although it was left open to the petitioners to negotiate with the respondent-corporation and as per the submission of the learned counsel for the opposite party nos. 2 to 4, after considering the representation in pursuance of the said order, the order dated 06.02.2013 was passed by the opposite party no. 4 at Varanasi but the same has not been challenged by the petitioners in the present writ petition hence on this count also, the present writ petition is not maintainable.

21. In view of the above, we find that the writ petition is not maintainable and is liable to be dismissed.

22. Accordingly, the writ petition is dismissed.

23. No order as to costs.

[ Rajnish Kumar,J.][ Devendra Kumar Arora,J.]

Order Date : 21st December, 2017

Akanksha S.