Srilab Polymers Pvt. Ltd. & Anr vs The State Of West Bengal & Ors
2022 Latest Caselaw 1124 Cal

                                      1


                   IN THE HIGH COURT AT CALCUTTA

                   (Constitutional Writ Jurisdiction)

                             APPELLATE SIDE

Present:

The Hon'ble Justice Krishna Rao

                             WPA 20245 of 2021

                    Srilab Polymers Pvt. Ltd. & Anr.

                                  Versus

                    The State of West Bengal & Ors.



           Mr. Ashok Banerjee, Senior Advocate
           Mr. S. R. Saha
                                            ....For the petitioners
           Mr. Samrat Sen
           Ms. Manali Ali
                                           .....For the Respondent No. 1

Mr. Probal Kumar Mukherjee, Senior Advocate Mr. Amit Kumar Nag Mr. Maharnab Roy

Mr. Sarajit Sen Mr. Tapas Singha Roy

Heard on : 25.02.2022

Judgment on : 10.03.2022

Krishna Rao, J.: The petitioner has challenged the communication dt.

07.12.2021 issued by the Secretary, West Bengal Industrial Infrastructure

Development Corporation whereby approval of proposed Animal Husbandry

Project and transfer of lease in respect of lay out plot nos. U (part) and V/2

(part) measuring 0.6377 acres of land allotted to M/s. Bani Packaging

Private Limited within Kalyani Industrial Park, Phase-III was disallowed.

On 24.04.2017, the petitioner no. 1 had informed the Secretary, West

Bengal Industrial Infrastructure Development Corporation (hereinafter

called WBIIDC) that the petitioner intend to diversify their business from

plastic related products to animal husbandry products and further they

required two bighas of land in addition to the land held by the petitioner. It

has been further informed that the Managing Director Mr. Sambhu Nath

Bose is the promoter of the petitioner's company as well as the proforma

respondent company and therefore, requested for approval of;

(a) Permission of starting the animal husbandry product at Kalyani

Industrial Sector, Phase-III, Kalyani.

(b) Permission to buy the land of M/s. Bani Packaging (P) Ltd. at plot No.

U(part) and V-2(part), Phase-III, Kalyani Industrial Sector, Kalyani,

District:Nadia.

(c) The amount, which is required, to be deposited by the petitioner

company for approval of 0.6377 acres of land from Bani Packaging

Private Limited in favour of the petitioner.

On receipt of the request of the petitioner, the Secretary West Bengal

Industrial Infrastructure Development Corporation (WBIIDC) requested the

petitioner no. 1 to submit detailed project report along with the plant lay out

as per guidelines, application in schedule format as given in the annexure.

It has been mentioned only on acceptance of DPR and evaluation charge, the

prayer for transfer/assignment of the land will be taken into consideration.

In reply to the letter dt. 23.06.2017, the petitioner had sent two sets of

detailed project report to the Secretary, West Bengal Industrial

Infrastructure Development Corporation (WBIIDC). The plot which is to be

transferred from the proforma respondent to the petitioner has been

mentioned in the reply of the petitioner which is V-2 (part), U (part), K-25

(part), Post Office-Kalyani, District-Nadia.

The Executive Engineer (Civil), Headquarter, West Bengal Industrial

Infrastructure Development Corporation (WBIIDC) requested the petitioner

to sent soft file in AutoCAD format for plant layout in 2010 or lower version.

As per the request of the Executive Engineer, the petitioner had submitted

draft plan layout. The West Bengal Industrial Infrastructure Development

Corporation (WBIIDC) vide letter dt. 30.11.2017 requested the petitioner to

deposit Rs. 1,28,620/- in favour of the West Bengal Industrial Infrastructure

Development Corporation (WBIIDC) with respect to the application for

assignment of land at Kalyani Industrial Growth Centre, Phase-III. The

petitioner had also submitted an application for assignment of 0.6377 acres

of land in triplicate along with site plan and structural design of the

proposed project at Kalyani.

Inspite of the request made by the petitioners and the amount

deposited by the petitioners, the respondents have not taken any steps for

grant of approval in favour of the petitioner and accordingly, the petitioner

has filed a writ application being W.P. No. 1131 (W) of 2019. The writ

petition was disposed of on 28.01.2019 by directing the West Bengal

Industrial Infrastructure Development Corporation (WBIIDC) to consider and

decide the application made by the petitioner in accordance with law. After

the order passed by the Coordinate Bench of this Court, the respondent

authorities vide communication dt. 12.06.2019 directed the petitioner and

the proforma respondent to appear before the Secretary, West Bengal

Industrial Infrastructure Development Corporation (WBIIDC) on 10.07.2019.

The petitioner as well as the proforma respondents have appeared before the

authority and the respondent no. 5 had passed an order on 12.09.2019 and

concluded that the prayer made by the proforma respondent for permission

of West Bengal Industrial Infrastructure Development Corporation (WBIIDC)

allowing an assignment of the leasehold right in respect of the plot in

question was rejected.

After order of rejection, the petitioner rectified the defects for which

the application was rejected by the respondent no. 5 and thereafter the

respondent no. 6 approached before the National Company Law Tribunal,

Kolkata Bench by filing an application under Section 252 (3) of the

Companies Act, 2013 for reviving the company that M/s. Bani Packaging

Private Limited to its original position. The National Company Law Tribunal

had disposed of the proceeding by passing the following order:-

"(a) The Registrar of Companies, West Bengal, the respondent herein, is directed to restore the original status of the company as if the name of the Company had not been struck off from the register of Companies with the resultant and consequential actions like changing status of applicant Company from 'struck off" to 'Active';

(b) The Company is directed to file all pending statutory document(s) for all the pending years 2016-2017, 2017-2018, 201802019 along with prescribed fees/ additional fee/fine as decided by Registrar of Companies, West Bengal within 45 days from the date on which its

name is restored on the register of companies maintained by the Registrar of Companies, West Bengal;

(c) The restoration of the Company's name is also subject to the payment of cost of Rs. 30,000/- (Rupees Thirty thousand Only) through online payment in www.mca.gov.in under miscellaneous fee by mentioning particulars as "Payment of cost for revival of company pursuant to orders of NCLT in CP No. 743/KB/2020";

(d) The Applicant is directed to deliver a certificate copy of this order with Registrar of Companies, West Bengal within thirty days of the receipt of this order;

(e) On such delivery and after due compliance with the above directions, the Registrar of Companies, West Bengal, is directed to publish the order in the Official Gazette under his office name and seal;

(f) This order is confined to the violations, which ultimately led to the impugned action of striking off the name of the Company, and it will not come in the way of Registrar of Companies, West Bengal to take appropriate action(s) in accordance with law, for any other violations/offences, if any, committed by the company prior to or during the period the name of the company required struck off."

The order passed by the Ld. NCLT dt. 23.12.2020 was communicated

to the respondent no. 5 and requested for reconsideration the assignment of

the land and to approve the proposed project which was submitted by the

petitioner. In spite of receipt of the request the respondent no. 5 has not

taken any steps and accordingly, again a reminder was issued on

20.08.2021 requesting the Secretary, West Bengal Industrial Infrastructure

Development Corporation (WBIIDC) for reconsideration of for assignment of

the lease to M/s. Bani Packaging Private Limited which is the sister concern

of the petitioner company. The petitioner had also paid the pending bills of

the West Bengal Industrial Infrastructure Development Corporation

(WBIIDC) and requested to consider the proposal for diversification of their

land which is pending for the last several years and requested for approval

of the project.

Inspite of the request made by the petitioner the authorities have not

considered the same and accordingly, the petitioners have again filed a writ

petition before this Court being WP No. 18662 (W) of 2021. During the

pendency of the writ petition, on 10.12.2021, the petitioner no. 1 received a

letter dt. 07.12.2021 issued by the respondent no. 5 wherein it was

informed to the petitioner that the corporation i.e. the respondent no. 2 has

decided not to approve the proposed animal project within the allotted land

to the petitioner and also within the allotted of M/s. Bani Packaging Private

Limited on the following ground:-

"(i) As per our approved policy of the Corporation, vacant lands are not transferable. In that case, land will be resumed back by WBIIDC. The land allotted to M/s. Bani Packaging Pvt. Ltd. is lying vacant.

(ii) Rearing of animals may cause disturbance in the area. Also, the maintaining of health conditions of the animals that will remain there is a serious concern considering the area is lying within an industrial estate.

The matter being a public policy, the transfer of lease as prayed for cannot be allowed."

The Ld. Senior Counsel Mr. Ashok Banerjee representing the

petitioner submitted that the respondents authority have already accepted

an amount of Rs. 1,28,620/- from the petitioner as a pre-condition of

granting transfer and other approval and also the pending bills which has

been paid by the petitioner.

Mr. Banerjee further submitted that because of delay in starting the

project and keeping the land vacant, the respondent authorities have

collected a sum of Rs. 3,45,848/- from the proforma respondent on account

of penal charges, seven years rent and twenty years advance lease rent from

the respondent no. 6 which is going to be expired on 2035.

The Ld. Senior Counsel further submitted that in the said industrial

estate several other animal husbandry projects are being run by the other

units of Government of West Bengal but the respondent authorities by not

allowing the petitioner or granting approval is nothing but violation of the

principle of natural justice.

The Ld. Counsel further submitted that the respondent authorities

without considering the action taken by the petitioner and without

considering the fact that the respondent authorities have already accepted a

sum of Rs. 1,28,620/- as pre condition for granting of transfer and other

approval as well as also pending bills which was paid by the petitioner is

violation of Article 14, 19 (1) (g) and other Provisions of the Constitution of

India.

Per contra, the Ld. Senior Counsel Mr. Probal Kumar Mukherjee for

the respondents no. 2 to 5 relied upon Clause 7 (ii) of the scheme which

reads as follows:-

"In case of vacant land/space no assignment/transfer is allowed. If less than 10 percent construction work as per sanctioned Building Plan is not completed, allotted land/ built-up space will be considered as vacant"

By referring the said Clause, the Counsel for the respondents no. 2 to

5 submitted that admittedly, the land of the proforma respondent is lying

vacant and as such the respondent authorities have not committed any

error by rejecting the request made by the petitioner.

The Ld. Senior Counsel for the respondent no. 2 to 5 further

submitted that no land under Kalyani Industrial Estate is entitled to carry

out goatery project of Black Bengal Goat and piggery as the same would

cause disturbance in the industrial zone and would also serious concern of

the health conditions of the animals in an industrial estate. The respondent

no. 6 has also violated the terms and conditions of lease by not completing

construction and carry out the approved project under lease.

It is further urged that the respondents have never collected any

transfer fees for transfer of the leasehold rights of the original lessee. The

fee realised by the respondents was only the application fee for transfer of

leasehold rights of the original lessee. It is further submitted that the

charges for evaluating the Detailed Project Report submitted for the

proposed project and the said payment neither gives any right nor makes

the respondents liable to transfer of leasehold right.

The Ld. Senior Counsel further submitted that Clause 7 (ii) (supra) is

the pre condition for transfer of the landed property. But in the instant

case, the proforma respondent has not made any construction over the said

land.

The Counsel for the respondents further submitted that the

respondents have rejected the request of the petitioner by taking into

consideration of the scheme which the petitioner has not fulfilled the same.

The Ld. Counsel for the proforma respondent submitted that by under

an agreement with the BPL, the West Bengal Industrial Infrastructure

Development Corporation (WBIIDC) granted sub-lease for 99 years upon

payment of agreed land premium in favour of the BPL. In terms of the

agreement, the Corporation has handed over the physical possession of the

same to the proforma respondent on 12.03.2009. It is further submitted

that in the year 2011, the Promoter Director of the proforma respondent

suffered severe heart attack and subsequently eye stroke for which he was

continuous under medical treatment due to which he could not

implemented the project.

The Ld. Counsel for the proforma respondent further submitted that

when the Promoter Director started living normal life, three sets of drawing

of the Factory Plan with respect of the said land was submitted to the Chief

Engineer of the respondent authorities on 27.08.2014 for grant of sanction.

On 08.04.2015 for the purpose of Industrialization, the State regularized the

matter subject to compliance of other instructions, payment of penal

charges and annual rent amounting to Rs. 3,45,848/- by the proforma

respondent to the Corporation.

It is further submitted that the proforma respondent has made the

payment in the month of June, 2015 and thereafter the proforma

respondent had submitted the declaration to commence the project along

with the payment receipt but the request made by the proforma respondent

for commencing the project but the authorities have not taken any decision.

The Counsel for the proforma respondent further submitted that the

petitioner Company is the sister concern of the proforma respondent. The

allotted land of the petitioner and the proforma respondent are situtated

adjoining to each other.

It is further submitted that as the respondent authorities failed to

grant sanction to the proforma respondent and accordingly, it was decided

between the petitioner and the proforma respondent to convert the business

of plastic related product to that of Animal Husbandry products over their

land which would generate good number of employment of more than 50

person but for the Animal Husbandry Project about three Bighas of land

would be required out of two Bighas of vacant land would be necessary for

grass generation and movement of goats and additionally two Bighas of land

is available in the adjacent premises of the proforma respondent and

accordingly, the petitioner has requested for grant of permission from the

respondent authorities.

The Counsel for the proforma respondent further submitted that the

Project of the proforma respondent was ready since the year 2014 but non-

grant of sanction by the respondent authorities, the Project could not be

started by the proforma respondent and as such the land was lying vacant

and if the authorities would have granted permission/sanction to the

proforma respondent in the year 2014-2015 itself, the proforma respondent

ought to have been started the Project by making of construction over the

said land. The Counsel for the respondents further submitted that on the

fault of the respondents the land of the proforma respondent is lying vacant.

Considered the rival submissions of the parties and the documents

available on record. The petitioner Company and the proforma respondent

are the sister concern. The West Bengal Industrial Infrastructure

Development Corporation (WBIIDC) had alloted two plots being plot No. K-25

(part), U (part), V-2 (part) and plot no. U (part) & V-2 (part) respectively to

the petitioner and the proforma respondent. In the month of April, 2014 the

petitioner had informed the West Bengal Industrial Infrastructure

Development Corporation (WBIIDC) that the petitioner intent to diversify the

business from plastic related product to animal husbandry product and for

the said related business the Company required further two Bighas of land

in addition to the land allotted to the petitioner. The petitioner Company

requested for grant of permission for starting Animal Husbandry Product in

the said land. The petitioner also prayed for permission to buy the land of

the proforma respondent and also informed that the amount required will be

deposited by the petitioner.

Vide communication dt. 07.12.2021, the respondents have rejected

the request made by the petitioner Company on the ground that as per the

approved policy of the Corporation, vacant lands are not transferable.

Admittedly, the land of the proforma respondent is lying vacant. As

per record it reveals that in the year 2014, the proforma respondent had

submitted drawings of the Factory Plan in their land to the respondent

authorities for grant of sanction. As per the instructions of the authorities,

the proforma respondent had also paid the charges of Rs. 3,45,848/-. After

payment of the said amount, the proforma respondent had submitted

declaration to commence the project but inspite of the receipt of the project

and payment of the charges the respondents have not allowed the proforma

respondent to commence their Project and as such the proforma respondent

could not able to commence their project in the landed property allotted to

them. In the mean time the petitioner Company who is the sister concern of

the proforma respondent made of its mind for conversion of business from

plastic related product to animal husbandry product for which further land

is required and as such the petitioner Company requested for transfer of the

land of the proforma respondent in favour of the petitioner Company for

starting of the animal husbandry project.

The respondents have rejected the request of the petitioner relied

upon Clause 7 (ii) of the policy but in view of the circumstances mentioned

above this Court is of the view that 7 (ii) is not applicable in the case of the

petitioner as the proforma respondent had applied for start the project in the

year 2014 itself and had also paid the charges as required by the

respondents but the respondents have not allowed the proforma respondent

to commence the project due to which no construction was made.

As regard the second ground of rejection is concern the respondents

have not produced any documents to show that there is any prohibition to

carry out the business of animal husbandry project in the said area or the

same will cause any disturbance or would be effected the health condition of

animals. The specific case of the petitioner that in the said industrial estate

area other animal units are being run by the other units of Government of

West Bengal and thus this Court is of the view that the same is in violation

of principles of natural justice.

In view of the discussion made above the impugned communication

dt. 07.12.2021 issued by the Secretary, West Bengal Industrial

Infrastructure Development Corporation (WBIIDC) is hereby set aside and

quashed.

The respondents authorities, particularly the respondent no. 5 is

directed to re-consider the proposal of the petitioner for approval of animal

husbandry project within the land allotted to the petitioner and to the

proforma respondent after giving an opportunity of hearing to the parties

and by passing a reasoned and speaking order within a period of four (4)

weeks from the date of receipt of the copy of this order.

WPA 20245 of 2021 is thus disposed of.

Parties shall be entitled to act on the basis of a server copy of the

Judgment and Order placed on the official website of the Court.

Urgent Xerox certified photocopies of this judgment, if applied for, be

given to the parties upon compliance of the requisite formalities.

(Krishna Rao, J.)