Tulsi Jelly Sweets Thro Its ... vs The State Of Maharashtra And ...
2021 Latest Caselaw 4507 Bom

                                                Writ Petition No.14564/2019
                                      (( 1 ))


           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                     WRIT PETITION NO.14564 OF 2019


 Tulsi Jelly Sweets
 D-29, Addl. MIDC, Ajanta Road,
 Jalgaon-3, Tq. & Dist. Jalgaon
 through its proprietor,
 Ashutosh Chudaman Patil,
 Age 43 years, Occu. Business,
 D-29, Addl. MIDC, Ajanta Road,
 Jalgaon-3, Tq. & Dist. Jalgaon                   ... PETITIONER

          VERSUS

 1.       The State of Maharashtra,
          through its Secretary,
          Industrial Development Department,
          Mantralaya, Mumbai - 32
          (Copy to be served upon
          Govt. Pleader, High Court of
          Judicature of Bombay,
          Bench at Aurangabad)

 2.       Maharashtra Industrial Development
          Corporation, Udhyog Sarthi,
          Marol Industrial Area,
          Mahakali Caves Road,
          Andheri (East), Mumbai - 93
          through its Chief Executive Officer

 3.       The Regional Officer,
          Maharashtra Industrial Development
          Corporation, Opp. Office of
          Deputy Engineer, M.I.D.C., Awadhan,
          Dhule, Tq. & Dist. Dhule

 4.       Area Manager,
          Maharashtra Industrial Development
          Corporation, Jalgaon

 5.       M/s Balaji Seeds and Processing Pvt. Ltd.
          Plot No.D-60, MIDC Area, Jalgaon
                                            ... RESPONDENTS



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                                                       Writ Petition No.14564/2019
                                          (( 2 ))


                                 .......
 Shri   P.D. Bachate, Advocate with
 Shri   U.A. Bhadgaonkar, Advocate for petitioner
 Shri   S.P. Sonpawale, A.G.P. for respondent No.1.
 Shri   S.S. Dande, Advocate for respondents No.2 to 4
 Shri   K.C. Sant, Advocate for respondent No.5
                                  .......

                                       CORAM :      SUNIL P. DESHMUKH AND
                                                    R. G. AVACHAT, JJ.

                  Date of reserving judgment : 16th December, 2020
                  Date of reserving judgment : 11th March, 2021


 JUDGMENT (PER R.G. AVACHAT, J.) :

Rule. Rule made returnable forthwith. With the

consent of learned counsel appearing for the parties, taken up

for final hearing.

2. The petitioner is proprietor of "Tulsi Jelly Sweets".

He is engaged in the business of production of jelly sweets.

The production unit is situated on the Plot (D-29) in Additional

M.I.D.C. Area, Jalgaon. The petitioner applied for grant of

additional plot, being Plot No.D-13/1 and D/13-2 for

expansion of his business. The respondent No.1 is the State

of Maharashtra in Industrial Development Department. The

respondent No.2 is the Maharashtra Industrial Development

Corporation (MIDC), while the respondent No.3 is the Regional

Officer of MIDC, Dhule and respondent No.4 is Area Manager

of MIDC, Jalgaon. The respondent No.5 is a Private Limited

Writ Petition No.14564/2019 (( 3 ))

Company, doing its business on Plot No.D-60 in Additional

MIDC, Jalgaon.

3. The petitioner, by this petition, has sought for the

relief of quashing of order dated 13/9/2019, issued by the

respondent No.4 Area Manager, allotting the Plot No.D/13-2 to

the respondent No.5. The petitioner has also prayed for a writ

of mandamus directing the respondents No.1 to 4 to allot the

said plot/s to him for expansion of his business.

4. Shri Bachate, learned counsel for the petitioner

would submit that, the decision of the respondent MIDC to

allot the plot to the respondent No.5 has been against its

policy. The petitioner did comply with requirement of

additional plot for expansion of business. The decision of the

MIDC to defer the petitioner's claim is discriminatory and

smacks of arbitrariness. According to him, the petitioner had

never been informed about the alleged deficiencies in his

application for grant of additional plot. As per the policy for

grant of additional plot for expansion of business, applicant is

required to consume not less than 60% of Floor Space Index

(FSI) of his existing plot. The petitioner has consumed 95%

FSI. Whereas the respondent No.5 has utilized not more than

40% of the FSI. When there are more than one claimants for

one and the same plot, they are required to submit their bids

Writ Petition No.14564/2019 (( 4 ))

in a sealed cover. The applicant, who is the higher/ highest

bidder amongst the claimants, is supposed to be allotted the

plot. The online status of the application of respondent No.5

disclosed it to have been rejected. Respondent No.5 was

allowed to submit application offline and documents as well.

The MIDC granted three of the applicants plots admeasuring

double the area of their existing plots. The same is also

inconsistent with the policy of the MIDC. Learned counsel

took us through the relevant Circulars to point out as to how

the conditions therein have been flouted by the MIDC itself.

According to learned counsel, the order allotting the plot in

favour of respondent No.5 deserves to be set aside. The

petitioner deserves allotment of the plots bearing No.D-13/1

and D/13-2 for expansion of his business.

5. Learned counsel for the petitioner placed reliance

on the following authorities :

(1) (1996) 6 SCC 530 (Common Cause, a Registered Society V/s Union of India)

(2) (1979) 3 SCC 490 (Ramana Dayaram Shetty V/s International Airport Authority of India & ors.)

(3) (2011) 5 SCC 29 (Akhil Bharatiya Upbhokta Congress V/s State of M.P.)

(4) (2015) 4 Mh.L.J. 758 (Tanaji Jagdale V/s State Government of Maharashtra)

Writ Petition No.14564/2019 (( 5 ))

6. Shri Dande, learned counsel for the respondent

No.2 to 4 would, on the other hand, submit that the petitioner

does not have a vested right to claim a particular plot.

Petitioner's application has not been rejected. It has simply

been deferred since it was not complete in all respects. The

petitioner was called upon to submit the necessary

documents. He, however, failed to submit all the documents

in time. The MIDC is prepared to grant the petitioner other

plot.

7. Shri K.C. Sant, learned counsel for respondent

No.5 would make submissions consistent with the submissions

made by learned counsel for respondent No.2 to 4. He would

further submit that, in case of judicial review of administrative

action, this Court, in exercise of jurisdiction under Article 226

of the Constitution of India, cannot sit in appeal. It is only

when administrative action is found to have been tainted with

malafides or arbitrariness, the same could be set aside.

According to learned counsel, the petitioner has not come

with clean hands. He has obtained an order of status quo by

suppressing material facts. The petitioner filed Petition (W.P.

No.10746 of 2019) challenging letter of offer of the plot in

favour of respondent No.5. Since the petitioner failed to

secure interim relief therein, he filed the present petition.

Writ Petition No.14564/2019 (( 6 ))

When the respondent No.5 has been served with a notice, and

date for his appearance was fixed/ extended for 27/3/2020,

the petitioner circulated the matter without informing the

respondent No.5 and by misrepresenting some facts, obtained

relief of status quo. According to learned counsel, the

respondent No.5 has been put in possession of the plot. He

has paid Rs.87 Lakhs towards lease money. The petitioner

has no vested right to claim a particular plot. In the factual

backdrop, the petition deserves to be dismissed.

8. There can be no two views over legal proposition

that in case of judicial review of administrative action, the

Court, in exercise of jurisdiction under Article 226 of the

Constitution of India, cannot sit in appeal. If it is found that

there is arbitrariness, procedural impropriety, unfairness or

abuse of process, then only the Court would interfere.

The gist of the legal propositions emerged from

the authorities relied on by learned counsel for the petitioner

is that, in the matter of grant of largesse including award of

jobs, contracts, quotas and licences, the Government must

act in fair and just manner and any arbitrary distribution of

wealth would violate the law of the land.

9. The petitioner is a proprietor of Tulsi Jelly Sweets.

Writ Petition No.14564/2019 (( 7 ))

He is engaged in the business of production of jelly sweets.

The manufacturing unit has been established on the plot, D-

29, situated in Addl. Jalgaon MIDC. The petitioner had earlier

applied for grant of a plot for expansion of his business. In

2009, Minor Modification Committee converted amenity plots

into industrial plots. M-Plot No.6 was converted into Plots

No.D-13/1 and D/13-2. The decision of conversion of amenity

plots had been challenged in a Writ Petition. After the

concerned Writ Petitions were decided, the petitioner, on

24/4/2019, again applied for allotment of the aforesaid two

plots for expansion of his business. According to the

petitioner, the policy regarding grant of additional plot for

expansion of business has been covered by Circulars dated

7/1/2013 and 7/6/2019. The petitioner has complied with all

the conditions for grant of additional plot. The respondent

No.5 has not. A reference to the relevant Circulars has,

therefore, become necessary. The Circular No.8460, dated

7/1/2013 speaks regarding allotment of plot for expansion of

business. The Circular inter alia contained the following

conditions :

The applicant is required to submit documents

such as Development Project Report (DPR), Block Plan,

Audited Accounts for the period of the preceding three years

Writ Petition No.14564/2019 (( 8 ))

of the existing business, orders in hand, the consent letter

issued by Maharashtra Pollution Control Board. It further

reads that, in case of demand by two adjoining plot holders,

their applications should be considered in order of their

seniority (means, which has been received first), and

considering the utilization of FSI. The applications should be

considered on their own merits.

10. While Circular No.B-88135, dated 7/6/2019

speaks that while granting a plot for expansion of business,

there has to be utilization of 40% of FSI of the existing plot.

In case more than two persons are claiming an adjoining plot,

then preference should be given to the claimant who has

utilized more than 60% FSI of his existing plot. In case of

there being more than one claimants, who have utilized more

than 60% of FSI, then such claimants may be directed to

submit their bids in sealed covers. Bid of highest bidder has

to be accepted. The bid shall not be for the amount less than

upset price to be fixed beforehand. The Circular further

records that, investment in the land in the proposed project

shall not be more than 10% of the entire project cost.

11. Learned counsel for the petitioner would submit

that, his case would be governed by the Circular No.B-88147,

dated 7/6/2019. Close reading of the said Circular makes it

Writ Petition No.14564/2019 (( 9 ))

more than clear that the same is applicable in case of MIDCs

located in MMR and PMR regions only.

12. The two Circulars referred to above save the

terms and conditions of the Circular dated 27/4/2012, which

are not inconsistent therewith. A copy of this Circular is also

on record. Clause (3) thereof speaks of a preference to be

given for grant of additional plot for expansion of business to

one who is an adjoining plot holder. The clause further reads

that, grant of preference should not be misconstrued to be a

right or entitlement for allotment of said plot.

13. Close reading of the aforesaid three Circulars

undoubtedly indicate that no applicant has a right to claim a

particular plot for expansion of his business. In case there

are more than one claimants, preference is required to be

given to adjoining plot holder. The applicant should have

consumed at least 40% of FSI of his existing plot. Clause

regarding utilization of 60% of FSI is applicable only in case of

there being more than two claimants who are adjoining plot

holders. Admittedly, both the petitioner and the respondent

No.5 are not the holders of the plots adjoining Plot No.D-13/1

and D/13-2. Therefore, the aforesaid conditions have no

application to the present case. As such, the applicant asking

for additional plot for expansion of business is required to

Writ Petition No.14564/2019 (( 10 ))

show to have utilized at least 40% of FSI of his existing plot.

Both the petitioner and respondent No.5 have admittedly

utilized 95% and 41% of the FSI of their respective plots.

14. The MIDC had received 16 applications for

allotment of plots. A meeting of the Land Allotment

Committee (LAC) was scheduled for 13/7/2019. The

petitioner was invited to attend the LAC meeting. A copy of

the letter inviting the petitioner to attend the said meeting is

on record. The letter reads thus :

"You are, therefore, requested to make it convenient to attend the said meeting on at Udyog Sarathi, MIDC Head Office, Mahakali Caves Road, Andheri (East), Mumbai - 93 along with the justification of requirement of land, last 3 years Balance Sheets of any existing Company, proposed investment, details of raising of funds for proposed investment, details of orders in hand if any etc."

15. The LAC held its meeting on the scheduled day i.e.

on 13/7/2019. The petitioner attended the said meeting and

submitted the following four documents :

 1)       Process Chart,
 2)       MPCB Consent to operate,
 3)       Machinery Quotation,
 4)       List of proposed machinery

16. According to the respondent MIDC, the application

Writ Petition No.14564/2019 (( 11 ))

of the petitioner was not complete in all respects. It was

short of many documents. The aforesaid four documents

were with the petitioner. He, therefore, submitted those

documents on the spot. The petitioner and all other

applicants were invited to the meeting with a direction to

submit the documents as stated in the letter. The respondent

MIDC, vide its letter dated 12/9/2019, informed the petitioner

that his application could not be considered in the LAC

meeting since he had not submitted the following documents :

 a)       Proposed Income Returns not provided,
 b)       Proposed increase in turnover not provided,
 c)       Present orders in hand not provided
 d)       Quantitative details of raw material is not submitted
 e)       Quantitative details of effluents not submitted
 f)       Procedure for treatment of effluents is not submitted
 g)       Purchase and Sales bills not submitted.

17. The letter dated 12/9/2019 indicates that, vide

letter dated 27/7/2019, the petitioner was invited to attend

the meeting along with justification of requirement of land,

last three years Balance Sheets of any existing Company,

proposed investment, details of raising of funds for proposed

investment, details of orders in hand if any etc. The

petitioner, therefore, cannot be heard to say that he had not

been informed of his application having been short of the

Writ Petition No.14564/2019 (( 12 ))

documents mentioned in the letter dated 12/9/2019. The

MIDC has not rejected the application of the petitioner. The

application has simply been deferred. The petitioner was

called upon to submit the necessary documents. If the

application is found to be complete in all respects, his claim

would be considered. It is reiterated that, the aforesaid three

Circulars indicate that the petitioner cannot have a right for

allotment of Plot No.D-13/1 and D/13-2, since he is not an

adjoining plot holder.

18. The MIDC has specifically averred on affidavit

that, the application preferred by the respondent No.5 was

complete in all respects. Both the petitioner, respondent No.5

and other applicants were permitted to submit hard copies of

some of the documents since the system of submitting online

applications did not permit furnishing documents in bulk. In

the LAC meeting, 16 applications were considered. 13 thereof

have been sanctioned. Claims of 3 applicants including the

present petitioner came to be deferred. So far as regards

status of online application of the respondent No.5 as on

16/6/2019 indicate to have been rejected, it has been stated

on affidavit that, the copy which has been produced by the

petitioner on record is a copy of the print out taken by the

concerned allottee from his login and at the relevant time

Writ Petition No.14564/2019 (( 13 ))

there was some technical error in the system. The same

appeared in some of the applicants' status. It has further

been stated that, it being online system, the status at the

login of the applicant is of no meaning and the actual status

at login of the officer (MIDC) level is required to be

considered. Although the status was shown as rejected, in

fact, the status of applications was - 'Pending'. The same

could be verified from the fourth column of the application in

which the processing status is clearly shown that DPR scrutiny

is pending.

19. Vide Circular dated 26/9/2016, guidelines have

been issued about allotment of all types of plots. Clause 2.4.3

thereof clearly mentions submission of Detailed Project Report

(DPR) and also the documents as per Annexure 3. The said

Circular was available on the Website of the MIDC. The

petitioner has already been holding two plots. He, therefore,

cannot be assumed to have not been aware of the Circular

dated 26/9/2016.

20. By filing subsequent affidavit, the petitioner has

contended that, three of the applicants have been granted

area more than double the area of their existing plots. The

same is in breach of the policy of the MIDC. In this regard, it

may be stated that, same is not the issue in this present Writ

Writ Petition No.14564/2019 (( 14 ))

Petition. Even otherwise, the MIDC has filed its affidavit-in-

reply and clarified the position. It has specifically been stated

that the LAC has granted those three plots after having

considered the said applicants' requirements and report of a

Technical Adviser. In our view, the petitioner cannot be

benefited by making such contentions.

21. In sum and substance, it has to be observed that,

the petitioner did not have a right to claim Plot No.D-13/1 and

D/13-2 for expansion of his business. The petitioner is not

the adjacent plot holder. Requirement of utilization of at least

60% FSI of existing plot applies only in case of a claim to the

adjoining plot. The minimum requirement of utilization of the

existing FSI is of 40%. The respondent No.5 has admittedly

utilized 41% of FSI of his existing plot. The petitioner was

called upon to attend the LAC meeting held on 13/7/2019.

The petitioner accordingly attended the meeting. In the letter

inviting him to attend the meeting, the petitioner was called

upon to come with certain documents.

The petitioner accordingly attended the meeting.

His application was found to have not been accompanied with/

by certain documents, described in letter dated 12/9/2019.

The petitioner only submitted 4 of those documents.

Necessarily, his application was required to be deferred.

Writ Petition No.14564/2019 (( 15 ))

Since the application of the respondent No.5 was found to be

complete in all respects, he has been allotted the plot. The

respondent No.5 has been put in possession thereof. He has

paid lease money amounting to little over Rs.87 Lakhs and

spent about Rs.3 Lakhs. The mother of the petitioner is a

local Corporator of Bhartiya Janata Party. She wrote letter to

the M.L.A., making complaint regarding allotment of plots.

The petitioner even approached the local police station against

the officials of MIDC. The respondents alleged the petitioner

to have tried to exert pressure on them for allotment of the

plot. Since the petitioner did not have a right to claim a

particular plot and the MIDC is prepared to consider his

request and grant him another plot, we find the petition to be

without merit.

22. Accordingly, the Writ Petition is dismissed. Rule

discharged.

 ( R. G. AVACHAT )                           ( SUNIL P. DESHMUKH )
       JUDGE                                        JUDGE





                                               Writ Petition No.14564/2019
                                (( 16 ))

After pronouncement of the judgment, learned

counsel for the petitioner prays for continuation of the interim

relief for a period of four weeks. The prayer is rejected.

 ( R. G. AVACHAT )                         ( SUNIL P. DESHMUKH )
       JUDGE                                      JUDGE




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