Patel And Company, Thr. ... vs The State Of Maha., Thr. Prin. ...
2023 Latest Caselaw 869 Bom

                                      1


                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT NAGPUR, NAGPUR.
                                     ...

WRIT PETITION NO. 1494/2022

Patel and Company Through its Proprietor:

Mr.Abdul Shahid Patel (Tarique Patel) Aged about 49 years, occu: Business R/o Plot No. 62, Opposite Green Park Raj nagar, Katol Road, Nagpur-440 013. ..PETITIONER

versus

1) The State of Maharashtra Through its Principal Secretary Department of Industries, Mining and Marathi Language 114, Annex Building, Mantralaya Mumbai-32.

2) Maharashtra Industrial Development Corporation (MIDC) Through its Chief Executive Officer (CEO) Head office at Udyog Sarathi, Mahakali Caves Road Andheri (East), Mumbai 400 093.

Email ID :[email protected]

3) Development Commissioner (Industries) Industries Department, Maharashtra Government, 2nd floor, New Administration Building in front of Mantralaya, Madam Cama Road Mumbai -400 032.

4) Joint Chief Executive officer (Jr. CEO) Maharashtra Industrial Development Corporation, (MIDC) Head office at Udyog Sarathi, Mahakali Caves Road, Andheri (East) Mumbai 400 093.

Email ID :[email protected]

5) Deputy Chief Executive Officer-4 Maharashtra Industrial Development Corporation, (MIDC) Head office at Udyog Sarathi, Mahakali Caves Road, Andheri (East), Mumbai 400 093 Email ID :[email protected]

6) The Regional Officer, Nagpur Maharashtra Industrial Development Corporation Address Udyog Bhavan, 2nd floor, Civil Lines, Nagpur-440 001.

Email ID : [email protected] ..RESPONDENTS

......................................................................................................................... Mr F.T. Mirza with Mr.Syed Owais, Advocates for Petitioner Ms K.S. Joshi, AGP for Respondents 1 and 3 Mr S.K.Mishra, Senior Advocate with Mr.J.B. Kasat, Advocate for Respondents 2,4,5 and 6 ....................................................................................................................

CORAM : SUNIL B. SHUKRE & ANIL L. PANSARE, JJ RESERVED ON : 25TH NOVEMBER 2022.

PRONOUNCED ON : 25th JANUARY 2023.

JUDGMENT: (PER ANIL L. PANSARE, J.)

Heard. Rule. Rule made returnable forthwith. Heard finally by

consent.

2. The petitioner is seeking a direction to the Respondent No. 2-

Maharashtra Industrial Development Corporation (in short, 'MIDC') to allot

Plot No.G-13/2 situated at Hingna MIDC Area, Nagpur (in short 'the plot') for

installation of oxygen manufacturing plant under the Scheme "Mission Oxygen

Swawlamban" in terms of the Government Resolution (in short 'GR') dated

21.05.2021 and Circular dated 23.06.2021.

3. Mr. F.T. Mirza, learned Counsel for the Petitioner has taken us

through the pleadings. He submits that the petitioner-firm is running an oxygen

manufacturing plant at Hingna, MIDC Industrial area, Nagpur in a tenanted

premises bearing No.E-4/1 which is in proximity of the plot and was lying vacant

for last about 40 years. The Petitioner claims to have supplied oxygen during the

period of global pandemic of novel corono virus (COVID 19). He submits that on

21.05.2021, the Government of Maharashtra by Resolution under the Mission

Oxygen Swawlamban, has floated a scheme for encouraging installation of new

project of 'Liquid Medical Oxygen Manufacturing along with storage and

cylinder filling' (LMO). It has been specifically mentioned in the GR that the

land/plot for the installation of the oxygen manufacturing plant shall be

provided by MIDC on priority basis with concessional rates and all the

permissions for installation of the said Unit shall be given expeditiously.

According to Mr. Mirza, pursuant to the GR, the Petitioner on 26.05.2021

made an application to the District Collector, Nagpur and requested

allocation of the plot admeasuring 8525 sq.mt. situated at Hingna MIDC

Industrial area. The District Collector, looking to the exigency, took a prompt

action and directed the Resident Deputy Collector to prepare a proposal to

that effect and send it to the MIDC. On 4.06.2021 the District Collector,

Nagpur made a recommendation to the MIDC for allotment of the plot in

Hingna, MIDC area. The third wave of COVID-19 was then anticipated. On

7.06.2021, the MIDC issued a Circular for implementation of the GR dated

21.05.2021 for allotment of land by giving priority to the project of medical

oxygen manufacturing plant. The said Circular was then superseded by

another circular dated 23.06.2021. The scheme was to encourage oxygen

manufacturing.

4. Mr. Mirza, submits that on 28.06.2021, the Petitioner submitted

an application for installation of medical oxygen plant on the plot. The MIDC

has taken cognizance of the application but could not process immediately for

the reason that the plot was allotted to a company named Stretchlon Private

Limited. The MIDC was first required to reprocess the said plot by cancelling

the allotment. Accordingly, the MIDC has taken necessary steps for

resumption of plot. According to the Petitioner, after resumption of the said

plot, the MIDC ought to have taken decision as per the prevailing policy for

allotment of plot, but did not.

5. The Petitioner has learnt from the Office of the MIDC that

approval for resumption of the plot was given by the Chief Executive Officer

of the MIDC. The Land Allotment Committee ('LAC' in short) constituted

under the Chairmanship of Joint Chief Executive Officer MIDC has, in a

meeting dated 07.01.2022, taken a decision to allot land at Hingna MIDC to

six persons and has given offer letter dated 21.01.2022. However, the

Petitioner was neither invited to the meeting nor his application was

considered. This, according to Mr.Mirza, is contrary to the aims and objects of

Mission Oxygen Swawlamban Scheme.

6. Mr. Mirza submits that for getting the benefits under the said

Scheme the interested party has to make an application to Development

Commissioner (Industries) MIDC before 30.06.2021. The Petitioner had

submitted such a proposal on 28.06.2021 along with requisite amount. The

LAC, however, did not consider the request in accordance with the Scheme.

An attempt was allegedly made by LAC to allot the plot in issue to their

favourite company despite the fact that the plot was not even included in the

list of vacant plots.

7. Being aggrieved and dissatisfied by the inaction of the MIDC to

implement the Scheme floated by the State of Maharashtra, the Petitioner

knocked the doors of this Court, by means of instant petition.

8. The MIDC states that it is ready to allot the plot to the Petitioner

in terms of the Scheme in the Butibori Industrial area, but the Petitioner is

insisting for allotment of the plot situated at Hingna Industrial area. Mr.S.K.

Mishra, learned Senior Advocate for the MIDC submits that the Petitioner

cannot insist for a particular plot. In fact, according to him, the direction

sought by the Petitioner to allot a particular plot cannot be granted in absence

of any statutory rule or legal right in favour of the Petitioner and, therefore,

the petition itself is not maintainable. He submits that the plot in issue was

allotted to M/s Stretchlon Private Limited as far back as 1976. It transpired

during the enquiry that the said Company was ordered to be wound up on

29.06.1988 in Company Petition No. 303/1988 vide order dated 09.06.2020.

Since the very existence of M/s Stretchlon Pvt. Ltd. was legally vanished, the

MIDC was required to commence process of resolution of plot in issue.

However, in the ongoing process of resumption of the plot, M/s Stretchlon

Pvt. Ltd. has addressed a communication dated 20.06.2021 expressing its

intention to re-start their unit afresh after settlement of the liabilities. The

request so made was not accepted and the plot in question was resumed to

the MIDC.

9. Mr. Mishra, learned Senior Advocate submits that the Petitioner

has not made an application to MIDC, but has addressed the communication

to the Collector. Secondly, the said application ought to have been submitted

online and the online window was open for the period from 31.12.2021 to

03.01.2022. A total of 19 entrepreneurs applied for allotment of land in

Hingna Industrial area. The LAC in its meeting dated 07.01.2022 considered

those applications and after due deliberations, a decision was taken to allot

the land at Hingna, MIDC Nagpur to M/s Jalaraj Pharma for establishing the

Pharmaceutical Unit and accordingly, a offer letter was issued on 21.01.2022.

In furtherence thereto, in the meeting dated 04.03.2022 the LAC has taken a

decision to allot 3000 sq.mt. of land over and above 6000 sq. mt. to M/s

Jalaraj Pharma. Mr. Mishra, would submit that the request of the Petitioner

was for allotment of the specific plot. The resumption of the said plot was

not completed until July, 2022 and that therefore, the contentions of the

Petitioner about non-consideration of his request in the LAC meetings dated

07.01.2022 and 04.03.2022 is totally misconceived. Accordingly, prayed for

dismissal of the writ petition.

10. We have given our thoughtful consideration to the submissions

made by both the sides. The contentions raised by Mr. Mishra, the learned

senior counsel that the application ought to be made to the MIDC and not to

the Collector and that the application was to be filed online, are recorded for

disapproval, since it is not even the case of the MIDC that the application of

the Petitioner has been rejected or not considered on the said count. In fact,

the application of the Petitioner has been considered. The fact reflects in the

Petitioner's application dated 26.05.2021 addressed to the Collector, Nagpur

wherein the Petitioner states that the MIDC had showed its willingness to

allot a plot in Butibori Industrial area, considering the scheme floated by the

Government of Maharashtra. The Petitioner, however, showed his preference

for allotment of the plot at Hingna. The reason being, the Petitioner is already

running the oxygen manufacturing plant in close proximity of the plot. The

Petitioner's interest in the adjoining plot appears to us to be quite natural.

11. The MIDC has its own Rules for allotment of plots, namely,

"Maharashtra Industrial Development Corporation Disposal of Land

Regulations, 1975" (in short 'Regulations of 1975'). Mr. Mirza, has taken us

through various Circulars issued by the MIDC for allotment of a specific plot.

However, Mr.Mishra, learned senior Advocate, countered the submission by

contending that the Circualrs will not supersede the provisions of the

statutory regulations. According to him, there is no provision in the

Regulations for allotment of a particular plot and that therefore the Petitioner

cannot insist for a particular plot.

12. We have, however, noticed that the Regulation 6 of the

Regulations of 1975 provides for allotment of a plot by applications. It

provides that where the Corporation decides to dispose of plots, by

entertaining applications, such an application shall be made to the Chief

Executive Officer in Form "B". We have gone through the Form "B". It

necessitates the applicant to mention the plot number so also the area

required. Thus, the argument of Mr. Mishra, that the regulations do not

provide for seeking a specific plot, is contrary to the Regulations itself. The

Petitioner, therefore, was fully justified in making application for allotment of

a particular plot. The question, however, is whether such an application

would create a legal right in favour of persons like the Petitioner. For that, we

will have to consider the other provisions of the Regulations of 1975.

13. The definition clause of the Regulations of 1975 under

Regulation 2 (i) defines "Land Committee" so as to mean the Committee

formed by the Corporation for the purpose of dealing with all the matters

connected with the acquisition and disposal of the land and built up sheds or

property owned or transferred to the Corporation by the State Government.

Regulation 10 provides for consideration of application for plots by the Land

Committee, which reads thus:-

10. Consideration of applications for plots by the Land Committee -

On receipt of any application for allotment of land, the Chief Executive Officer shall make such inquiries as he deems necessary and place it before the Land Committee with his recommendations and the Land Committee may either sanction or reject such application : Provided that the Chief Executive Officer may make allotment of a plot of land where the requirement of the applicant does not exceed the area laid down by the Corporation. A list of such allotments shall be placed before the Land Committee for its information."

14. Thus, the Land Committee after considering the

recommendations made by the Chief Executive Officer may either sanction

or reject the application. This regulation makes it clear that the persons like

the Petitioner though may apply for allotment of a specific plot but its

sanction and in turn allotment, would depend on the decision of the Land

Committee. The Petitioner, therefore, cannot insist for an allotment of a

particular plot.

15. The next question that arises is whether the said plot has been

allotted by following due procedure. This question arises because of the

conduct of the MIDC, pending petition.

16. The MIDC in its affidavit-in-reply dated 25.03.2022 has stated in

paragraph 18 that the LAC in its meeting held on 07.01.2022 has decided to

allot 6000 sq.mt. land in Hingna, MIDC to M/s Jalaraj Pharma. The minutes

of meeting dated 07.01.2022 have been placed before us. The proposal of M/

s Jalaraj Pharma appears to have been considered in the said meeting. The

Technical Adviser's remarks quoted in the meeting would indicate that the

Technical Adviser has recommended 8000 sq.mt. of land for allotment on

going through the project report and nature of activities and plan submitted

by M/s Jalaraj Pharma. The LAC, having considered the recommendations of

Technical Adviser so also the remarks of Deputy CEO, has decided to allocate

6000 sq.mt. land to M/s Jalaraj Pharma. It appears that on 04.03.2022, M/s

Jalaraj Pharma made an application to the MIDC mentioning therein that it

had requested for 10,000 sq.mt. of land, but has been allotted only 6000

sq.mt. It has then made a request for allotment of the plot in issue

admeasuring about 9000 sq.mt. The request was considered by the LAC in its

meeting dated 04.03.2022. The remarks of Technical Adviser have been

considered. The remarks are identical to the remarks made in the earlier

meeting. Thus, the Technical Adviser recommended allotment of 8000 sq.mt.

land. Despite such recommendation, which was already considered by the

LAC in its meeting dated 07.01.2022, the LAC in its subsequent meeting, has

decided to allot 3000 sq.mt. land over and above 6000 sq.mt. The MIDC

could not point out to us any material except for the application made by M/s

Jalaraj Pharma to allot additional 3000 sq.mt. of land to it.

17. We may note here that during the course of hearing we were

made to believe that the recommendations of Technical Adviser are

significant and that therefore the land over and above recommended by the

Technical Adviser may not be granted to the Petitioner. We have, however,

noted that a different treatment has been given to M/s Jalaraj Pharma when

its application was considered. The LAC thought it proper to allot additional

piece of land than what has been recommended by the Technical Adviser.

Accordingly, on 04.03.2022, the LAC has considered the request of M/s

Jalaraj Pharma for allotment of the plot admeasuring 9000 sq.mt. We may

reiterate that the request was for allotment of the plot in issue and was thus

considered in the meeting dated 04.03.2022. The actual allotment, however,

has been made on 17.08.2022.

18. Mr. J.B. Kasat, learned counsel for the MIDC on instructions,

made a statement that the plot in issue has been resumed by the MIDC on

05.07.2022 but he sought two weeks' time to take necessary decision. Thus,

it was indicated to this Court that the decision in respect of the said plot was

not taken, though in the meeting dated 04.03.2022 the decision to allot

9000 sq.mt. land/plot to M/s Jalaraj Pharma was taken on its request for

allotment of the plot in issue.

19. Therefore, on 22.07.2022, the following order came to be passed

by this Court:

" We have heard this matter for some time.

2. Mr. J.B. Kasat, learned counsel for Respondent - MIDC submits that the Land Allotment Committee (LAC) has

already considered the application of the petitioner for allotment of land for manufacture of industrial and medical oxygen and it is in the process of taking a final decision in the matter. He seeks time to file a detailed affidavit in this regard.

3. Mr. F.T. Mirza, learned counsel for the petitioner submits that the LAC will have to ultimately comply with the norms prescribed in the circular dated 9 th June 2021, according to which, for every oxygen plant having production capacity of 20 metric tonne, one acre land is eligible and, in the present case, the production capacity of the proposed oxygen plat being of 40 metric tonne, the petitioner would be entitled to be allotted a piece of land admeasuring, at least, two acres.

4. We hope that the authorities shall allot the land keeping in mind the parameters laid down in Circular dated 9 th June 2021 and would not do anything to scuttle the said norms.

Stand over after two weeks."

20. Thus, on 22.07.2022 we were again made to believe that the

decision on allotment of plot in issue is under consideration and has not yet

been taken.

21. On 17.10.2022, however, we were required to pass the following

order :

" Heard Mr.F.T.Mirza, learned Advocate for the petitioner;

Mr.J.B. Kasat, learned Advocate for MIDC i.e. respondent no.2 and 4 to 6 and Mr.N S Rao, learned AGP for respondents 1 and 3.

2. Mr. Kasat, learned Advocate seeks time for finally arguing the matter, saying that MIDC has engaged the services of Mr.S.K.Mishra, learned senior Advocate and that he is not available today and further a request for posting the final

hearing of this petition on 20th October, 2022. The date 20th October 2022 is not convenient for this Court as there are several other matters of greater urgency, which are posted. This petition, therefore, will have to be listed for hearing after Diwali vacation, 2022.

3. Mr. Mirza, learned Advocate for the petitioner submits that he would have no objection if the petition is posted for final hearing after Diwali vacation, provided the Respondent no.2/MIDC maintains the status quo in respect of Plot No.G-13/2 and which has been demanded by the petitioner for allotment to it for the purpose of setting up of Medical Oxygen Gas plant there. Upon this, Mr. Kasat, learned Advocate for the MIDC submits that Plot No. G-13/2 is already allotted and the possession has also been given to the other person. This submission (about possession) has been made on behalf of the MIDC for the first time. The MIDC has not filed on record any affidavit-in-reply indicating that the possession of industrial Plot No. G-13/2 has been handed over to a third party, which possession, according to Mr. Kasat, learned Advocate, appears to have been handed over, probably on 3rd/4th October, 2022. This submission, if it is true, has resulted in creating third party interest in the dispute, not by the petitioner but by the MIDC during the pendency of this petition. The MIDC has also not filed on record the letter handing over possession to a third party. The MIDC is at liberty to file an additional affidavit along with additional documents in support of the said submission, if any. If any such additional affidavit-in-reply is filed along with the additional documents, its sets be furnished to the petitioner and each of the remaining respondents.

4. Mr. Kasat, learned Advocate further submits that possession has been handed over to the third party, subject to the orders of this Court in Writ Petition Nos.705/2022 and 1494/2022, as stated in the allotment letter. He also submits that lease of the said plot is yet to be executed by the respondent no.2/MIDC.

5. We need not remind the MIDC of its bounden duties under the law in a pending petition where allotment of a particular industrial plot on demand by the petitioner is in issue. At the beginning of the petition and even for considerable time thereafter, the plot in question was not allotted to anybody and it was available for its appropriate allotment as per the directions of this Court. But now, the MIDC has prima facie, changed the status quo in respect of the plot in question by issuing an allotment letter first and handing over possession later, all during pendency of this petition. Therefore, we would only say that the office of the MIDC would at least now seek its enlightenment in respect of the consequences of changing of the status quo of the subject-matter of dispute during pendency of the petition.

6. We hereby issue a cautionary note to the Officers of the MIDC that any further attempt on their part to further change the situation, will only result in serious consequences.

7. Put up the matter for final hearing at the stage of admission itself, on 10th November, 2022; high on Board."

(emphasis now)

22. The MIDC has placed before us the documents through pursis

dated 17.11.2022. It includes the submission note dated 12.08.2022 relating

to allotment of plot in issue. It states that one Amit Khadwe has also filed an

application for allotment of the plot; his application was rejected and

therefore he was constrained to file Writ Petition bearing No.705/2022 before

this Court. The Court has ordered the parties to maintain status quo and to

reserve 8000 sq.mt. land for allotment. The submission note further records

that the LAC has taken a decision to allot 3000 sq.mt. plot to the Petitioner

herein. The note then refers to order dated 22.07.2022 and records that the

Court has directed to allot the plot in terms of Circular dated 09.06.2021 and

that the order is silent on allotment of a particular plot to the Petitioner. It is

then mentioned in the note that certain land has been taken in possession by

the MIDC and that the plot admesuring 8825 sq.mt. can be allotted to M/s

Jalaraj Pharma by reserving 8000 sq.mt. land in terms of the order passed by

this Court in Writ Petition No.705/2022. This submission note has been

approved by the officials including the Joint CEO, followed by allotment order

dated 07.08.2022.

23. We are dismayed with the manner in which our orders have

been twisted by the officials of the MIDC to suit its purpose. The submission

note indicates that this Court has directed the parties to maintain status quo

in Writ Petition No.705/2022, the subject-matter of which is the plot in issue.

We fail to fathom as to how despite such order of status quo, the MIDC has

decided to allot the plot in issue. Secondly, what we have said in the order

dated 22.07.2022 is in context with the request of the Petitioner to allot the

plot in issue and accordingly, we laid hope and expectation upon the

authorities of the MIDC that they will allot the land (to the Petitioner)

keeping in mind the parameters laid down in Circular dated 09.06.2021. The

MIDC has conveniently ignored the earlier orders of this Court and processed

further on the count that our order was silent on the point of allotment of a

specific plot to the Petitioner. It appears that the MIDC has forgotten that the

petition itself was for allotment of the plot. The MIDC is also aware that the

Petitioner's prayer seeking a direction to allot the plot was under

consideration. In the circumstances, there is hardly any scope to process the

file for allotment of the plot, ignoring the contentions raised in the petition

and orders passed by this Court in this petition, so also in Writ Petition

No.705/2022. On this count itself, the decision of the MIDC to allot the plot is

liable to be quashed and set aside.

24. Mr. Mishra submits that before quashing the decision, the Court

will have to hear M/s Jalaraj Pharma to whom the plot has been allotted. He

has relied upon the judgment of the Apex Court in the case of National

Central Co-op. Bank Ltd. vs. Ajay Kumar and others reported in 1992 SCC

Online 250, to contend that no one can be condemned unheard. The

submission does not appeal to us. Firstly, we are not condemning the act of

M/s Jalaraj Pharma. We are condemning the decision of MIDC. Secondly,

the MIDC itself has come up with a case that the plot in issue has been

allotted to M/s Jalaraj Pharma subject to the outcome of the Petition. We

were shown the necessary undertaking filed by M/s Jalaraj Pharma.

Therefore there is no question of causing any prejudice to M/s Jalaraj

Pharma. In any case, we find that the MIDC has taken a decision in utter

disregard to the court orders and the proceedings.

25. We have also noticed from the record that the concerned official

had vide submission note dated 11.11.2021, proposed to allot plot in issue to

the Petitioner after its resumption. The Joint CEO and CEO of MIDC have

approved the said proposal on or about 06.12.2021. Despite such status, the

authorities of the MIDC have allotted the plot to M/s Jalaraj Pharma. It

appears, though, that the Petitioner's proposal was considered by the LAC on

13.07.2022 and has decided to allot 3000 sq.mt. land. The Petitioner itself is

to be blamed for allotment of small portion of land than demanded. Mr.

Mirza, learned counsel for the Petitioner submits that while submitting the

proposal, the Petitioner has inadvertently quoted the unit of cylinder in 'cubic

feet' instead of 'cubic metre'. This affected the proposed production capacity

of the oxygen gas. He submits that if the unit 'cubic metre' is considered, the

proposed production capacity will be 9142 cylinders of 7 cubic metre and not

9142 cylinder of the cubic feet. If this capacity is considered, the Petitioner

will be entitled for more area and that the plot in issue will be most suited.

Thus, there appears some mistake on the part of the Petitioner as well in

submitting its proposal for allotment of land.

26. In the circumstances, we deem it appropriate to remand the

matter back for consideration afresh, strictly in accordance with the circular

dated 9th June, 2021. We also find it necessary to remind the officials of MIDC

that the Regulations of 1975, provide for two modes of disposal of land - one

by public auction and another by entertaining individual applications. In the

present case, there are more than one applicants for allotment of the plot. In

such eventuality, it would be advisable to allot the plot by public auction

which will not only benefit the MIDC but will also ensure transparency in

allotment of land/plot or the applications so received ought to be considered

on 'first-come-first-served' basis.

27. In these circumstances, it would be appropriate that the issue is

referred back to the MIDC for its consideration afresh in accordance with law

and in the light of what has been stated by us in this judgment.

28. Accordingly, we direct the MIDC to review its decision dated 17 th

August 2022 to allot Plot No.G-13/2 to M/s. Jalaraj Pharma in accordance

with law and decide the issue involved in the petition afresh in accordance

with law and in the light of what has been stated in the body of the judgment.

We direct MIDC to take its decisions in the matter as expeditiously as possible

by affording opportunity of hearing to the concerned parties. Rule

accordingly. No costs.

                  JUDGE                                 JUDGE

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