Jharkhand High Court
Adityapur Industrial Area ... vs Bihar State Co-Operative Milk ... on 28 July, 2021
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.581 of 2018
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Adityapur Industrial Area Development Authority through its
Managing Director, Now Regional Director Jharkhand Industrial
Area Development Authority Adityapur Region, Amit Kumar, aged
about 33 years, having its office at Vikash Bhawan, P.O. & P.S. -
Adityapur, District - Seraikella - Kharsawan. ... ... Appellant
Versus
1. Bihar State Co-operative Milk Producers Federation Limited
(C.O.M.P.Fed) a society registered under the Bihar & Orissa Co-
operative Societies Act, 1935, having its registered office at Dairy
Development Complex, Bihar Veterinary College, Patna - 14,
having one of its unit at Adityapur Industrial Area, Gamharia,
Jamshedpur, P.O. Gamharia, P.S. Adityapur, District -
Seraikella-Kharsawan through Sri A.K.Kulkarni, son of Late
K.L.Kulkarni, Chief Manger, Jamshedpur Dairy Unit (COMPPED)
resident of Circuit House Area, Bistupur, P.O. and P.S. Bistupur,
District - Singhbhum (East).
2. The State of Jharkhand.
3. Secretary, Industries, Department, Government of Jharkhand,
Pragti Sadan, Ranchi, Now Project Bhawan, P.O. Dhurwa, P.S.
Jagarnathpur, District - Ranchi.
4. M/s. Composite Tools company (India) Limited having its works
at M-2 (Part) 6th Phase, Industrial Area, Gamharia, Adityapur,
P.O. Gamharia, P.S. Adityapur, Jamshedpur, Pin 832108
through its Director Sri Ramesh Agarwal, Now District -
Seraikella-Kharsawan. ... ... Respondents
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CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellant : Mr. V.P. Singh, Sr. Advocate
Mr. C.G.A. Bardhan, Advocate
For the Respondent No. 1 : Mr. Umesh Prasad Singh, Sr. Advocate
Ms. Surabhi, Advocate
For the Respondent Nos. 2-3 : Mr. Rakesh Kumar Shahi,
A.C. to S.C. (L&C)-I
For the Respondent No. 4 : Mr. Pandey Neeraj Rai, Advocate
Mr. Akshansh Kishore, Advocate
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C.A.V. on 15.03.2021 Pronounced on 28.07.2021
Per Sujit Narayan Prasad, J.
With consent of the parties, hearing of the matter was done
through video conferencing and there was no complaint whatsoever
regarding audio and visual quality.
2. Heard parties.
3. The instant intra-court appeal is under Clause 10 of the Letters
Patent directed against the order dated 13.06.2018 passed by
learned Single Judge of this Court in W.P.(C) No.2529 of 2005
whereby and whereunder the writ petition has been allowed by
quashing the order as contained in Memo No. 1331 dated
10.10.2002 passed by the Managing Director, Adityapur Industrial
Area Development Authority as well as the appellate order dated
21.04.2005 passed by the Secretary, Industries, Government of
Jharkhand and consequently the order of allotment of the cancelled
portion of land to the Respondent No.4 by the Respondent No.3 vide
impugned order No. 1021/ADA dated 07.05.2005 has also been set
aside.
4. The brief facts of the case which are required to be referred,
read as under :-
The Adityapur Industrial Area Development Authority
(hereinafter referred to as „AIADA‟) allotted 10.00 acres of land in
favour of the writ petitioner for processing and supply of milk and
milk products to the urban population of Jamshedpur vide letter
dated 16.01.1975 as also physical possession of the property was
handed over to the authorized representative of Animal Husbandry
Department of the erstwhile State of Bihar. Subsequently, the said
property was handed over to the writ petitioner, a multi-State co-
operative society, having its activities in the State of Jharkhand and
Bihar which is an organization of farmers who are producing milk
and milk products in the brand name „SUDHA‟. The processing
capacity of the petitioner unit has increased from 25,000 litres of
milk per day in the year 1984 to 1,30,000 litres of milk per day.
The AIADA issued a letter on 12.05.2001 levelling allegation
that about 3.00 acres of land is unutilized and there are certain dues
which are pending against the writ petitioner. Subsequently, vide
letter dated 25.07.2001 some more dues were included. The writ
petitioner sought to clear the dues however certain disputes were
raised in connection with the calculation of the interest portion.
Subsequently, another letter dated 10.01.2002 was issued by
AIADA stating that about 2.00 acres of land are not being utilized by
the writ petitioner and show cause was issued as to why the
allotment of unutilized land be not cancelled and possession be not
taken over by AIADA. Such decision has been taken on the pretext of
certain dues lying against the writ petitioner.
The writ petitioner responded vide letter dated 17/21.01.2002
mentioning therein that the unit of the writ petitioner is a growing
unit and they have plans to increase the processing capacity of milk
from 1,00,000 litres per day to 1,50,000 litres per day and further it
was stated therein that there was no additional land available with
the writ petitioner.
The Managing Director, AIADA vide impugned order as
contained in Memo No. 1331 dated 10.10.2002 found that 1.00 acre
of land was unutilized and the writ petitioner was using this piece of
land for plantation of trees and treating this 1.00 acre of land as
unutilized land, allotment of land to the extent of 1.00 acre, out of
10.00 acres, was cancelled.
The writ petitioner protested the decision of cancellation by
filing appeal before the Secretary, Industries Department, Jharkhand
but the said appeal has also been dismissed vide order dated
21.04.2005.
Being aggrieved with the impugned orders, the writ petitioner
approached this Court by filing writ petition under Article 226 of the
Constitution of India being W.P.(C) No. 2529 of 2005 which has been
allowed by quashing and setting aside the order of the Managing
Director, AIADA and the appellate order dated 21.04.2005 of the
Secretary, Industries Department, Jharkhand respectively against
which the present intra-court appeal has been preferred by the
AIADA.
5. Mr. V.P.Singh, learned senior counsel appearing for the
appellant, assisted by Mr. C.G.A. Bardhan, has submitted that the
learned Single Judge has not appreciated the fact that decision has
been taken to cancel allotment to the extent of 1.00 acre of unutilized
land so that it may be allotted in favour of another entrepreneur for
doing business.
The learned Single Judge has further not appreciated the fact
that certain dues have been found against the writ petitioner which
have not been cleared and as such, if the cancellation of some part of
the allotted land has been done by the competent authority of AIADA
taking into consideration the dues as also the non-utilization of the
said 1.00 acre of land, the decision of cancellation cannot be said to
suffer from error but without taking into consideration this aspect of
the matter, the impugned order has been passed by the learned
Single Judge, which according to learned senior counsel, is not
sustainable in the eyes of law.
6. Mr. Umesh Prasad Singh, learned senior counsel appearing for
the writ petitioner/respondent no.1, assisted by Ms. Surabhi,
learned counsel on record, has submitted by defending the order
passed by the learned Single Judge on the ground that the entire
land has been allotted in favour of the writ petitioner for a period of
99 years of lease on deposit of a sum of Rs. 2 lacs with a condition to
execute lease in the enclosed prescribed form within a period of six
months with a further condition to pay rent of Rs.50/- only per acre
per year.
According to learned senior counsel, the value of the land has
been deposited but consciously the lease has not been executed,
therefore, there is error on the part of the appellant and for its own
error the appellant cannot be allowed to take advantage by
cancelling allotment of a portion of land in order to allot in favour of
others.
It has been submitted that the learned Single Judge has
appreciated the fact that the land which is being said to be
unutilized is actually incorrect presentation of fact as would be
evident from the documents available on record as because at the
first instance it has been contended by the appellant that 3.00 acres
of land has been found to be unutilized, subsequently 2.00 acres of
land has been said to be unutilized and thereafter 1.00 acre of land
but actually the entire land is being utilized.
So far as 1.00 acre of land is concerned, it is very much evident
from the impugned order passed by the authority that the said 1.00
acre of land is full of trees which is the requirement of the day as per
the State Pollution Control Board. If the said portion of land will be
allotted in favour of third party, the result would be that there will be
no plantation of trees and finally there will be objection on the part
of State Pollution Control Board in carrying out business by the said
unit established on the said land and ultimately the entire unit will
be closed down due to non-observance of the pollution parameters.
The learned Single Judge has taken into consideration this aspect of
the matter and thereafter the impugned decision has been passed,
which according to the learned senior counsel, suffers from no
infirmity and, therefore, submission has been made that the
impugned decision may not be interfered with.
7. We have heard learned counsel for the parties, perused the
documents available on record as also the finding recorded by the
learned Single Judge.
8. This Court, before considering the legality and propriety of the
impugned order, deems it fit and proper to refer about certain
admitted facts which read as under :-
The AIADA has allotted 10.00 acres of land to the writ petitioner
vide allotment letter dated 16.01.1975. The unit was directed to
deposit a sum of Rs.2 lacs for 10.00 acres of land calculated at the
rate of Rs.20,000/- per acre towards provisional cost of the land and
its development charges. The other condition therein is that the unit
will have to execute lease in the enclosed prescribed form within a
period of six months from taking possession of the land with a
further condition that the unit will have to pay Rs.50/- only per acre
per year. The said rent is liable to be doubled after four years or
more and will be revised after every 20 years in accordance with
provisions of law or any rules framed by Government of Bihar or the
AIADA.
The further condition is that the trees standing at the plot will
continue to be the property of the Authority and will not be cut or
removed by the unit without taking prior permission from the AIADA.
The status of the unit over the allotted land will be that of a licencee
till the lease deed is executed and registered by it.
Thus, it is evident that the land in question pertaining to 10.00
acres of area has been allotted in favour of the writ petitioner on
deposit of a sum of Rs.2 lacs with a condition to execute lease in the
enclosed prescribed form within a period of six months from taking
the possession of land and till the execution of the lease deed the
status of the unit over the allotted land will be that of a licencee.
Admitted fact herein is that as yet the lease deed has not been
executed and, therefore, as per the condition stipulated in the
allotment letter, the status of the unit over the allotted land is of a
licencee. The writ petitioner has established the unit in the name
and style of "Sudha" producing the milk products and as per the
averment made in the writ petition as also from the impugned order
it is evident that as on date 1,30,000 litres of milk per day is being
produced and it is expected to be increased to the extent of 1,50,000
litres per day. It has been informed by the learned counsel for the
writ petitioner that the milk is being procured from the
villagers/farmers of the local areas and they are also being provided
employment and earning therefrom.
While the writ petitioner was carrying out the business of milk
products, the Managing Director, AIADA issued a letter as contained
in Memo No. 102/ADA dated 18.01.2001 under the caption heading
"with respect to payment of dues" (Annexure-2 to the memo of
appeal).
It is evident from the said communication that the 10.00 acres
of land has been allotted but the cost of land along with the interest
as per letter dated 29.01.1999 has not been paid and as such, the
said amount has increased to Rs.11,73,388/- in the financial year
2000-01 and hence, request has been made to the writ petitioner to
make immediate payment of the outstanding amount. It has also
been referred therein that entire allotted land is not being utilized
rather 3 to 4 acres of land is still vacant and, therefore, suggestion
has been made by the appellant AIADA to the writ petitioner to
forthwith return the unutilized land in favour of the Authority and if
that will be done, there will be reduction in the cost of the land.
Thus, it is evident that in the communication dated 18.01.2001
reference of non-utilization of land to the extent of 3 to 4 acres has
been made.
Again letter has been issued on 12.05.2001 under the signature
of the Managing Director, AIADA reiterating the fact and request
made in the communication dated 18.01.2001 and requesting
therein to make payment and return back unutilized 3.00 acres of
land in favour of AIADA upon which the trees have been implanted
which is total mis-utilization of industrial land.
The Authority again has issued a communication on
25.07.2001 asking the writ petitioner to forthwith deposit the dues
amount to the tune of Rs.1,70,141/- since there is no provision
under any regulation of AIADA regarding exemption of the said dues.
The Managing Director, AIADA has again issued a
communication dated 10.01.2002 requesting the authority to make
payment of an amount of Rs.1,27,660/- as also making reference
about non-utilization of 2.00 acres of land which is not being utilized
rather the same is having forest over there and as such, direction
has been passed to return back the unutilized land failing which the
allotment of the unutilized land will be cancelled and the possession
over the land will be taken and amount deposited in this regard will
be forfeited.
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The appellant has issued the order impugned on 10.10.2002 as
contained in Memo No. 1331 by cancelling the allotment of 1.00 acre
of land on the ground that 1.00 acre of land is in vacant position and
therein plantation has been done and since the land is not being
utilized, therefore, exercising power conferred under Sections 6(2)(a)
and 6(2)(b) of the Bihar Industrial Areas Development Authority Act,
1974, the allotment of the land to the extent of 1.00 acre has been
cancelled.
The writ petitioner approached this Court by filing writ petition
being W.P.(C) No. 2529 of 2005 and the learned Single Judge of this
Court, after taking into consideration the contention of the writ
petitioner as also the importance of plantation of trees which is the
mandate of the day and requirement under the environmental laws,
has found illegality in the impugned decision of the Authority
whereby and whereunder it has been held that since in 1.00 acre of
land trees have been planted, it has been held to be unutilized.
It is further evident from the fact available on record and we
have gathered from the argument advanced by learned senior
counsel appearing for the writ petitioner that although the allotment
letter has been issued on 16.01.1975 with a condition to execute a
lease deed and till the execution of the aforesaid lease deed the
status of the writ petitioner will be of licencee but as yet the lease
deed has not been executed.
The writ petitioner has deposited the cost of the land to the
tune of Rs.2 lacs as also paid rent as agreed as per the allotment
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letter but lease deed has not been executed and taking advantage of
that letters have been issued showing initially 3 to 4 acres of land as
unutilized, subsequently the appellant has referred about non-
utilization of about 3 acres of land, thereafter 2 acres and finally it
has become 1 acre of land which is not being utilized. The reason
which has been assigned in the impugned decision of the Authority
is that one acre of land since is being used for plantation, it has been
held to be unutilized and that is the main reason of cancellation of
the allotment of the land to the extent of 1.00 acre as also forfeiture
of the said amount but the question is that if 1.00 acre of land is
utilized for plantation of trees, will it be said to be unutilized?
It requires to refer herein that the State Pollution Control Board
has granted Consent to Operate on 14.10.2009 with the specific
terms and conditions that the petitioner unit shall submit the
environmental statement every year by 30th September and shall
harvest all rainwater precipitating in the premises and do three tier
tree plantation as air barrier.
9. We thought it proper to consider the enactment of the
Environment (Protection) Act, 1986. Admittedly, on the day of
allotment of land, which was in the year 1975, the Environment
(Protection) Act, 1986 was not in existence, however, the Water
(Prevention and Control of Pollution) Act, 1974 was there but in
order to look into the issue of environment at global level, the
Environment (Protection) Act, 1986 has been enacted.
As per the Environment (Protection) Act, 1986, the environment
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includes water, air and land and the inter-relationship which exists
among and between water, air and land, and human beings, other
living creatures, plants, micro-organism and property.
The Central Government has been conferred power to take
measures to protect and improve environment for which the officers
have been appointed with their power and functions. The Act also
provides penalty for contravention of the provisions of the Act and
the Rules, orders and directions.
Therefore, after coming into effect the Environment (Protection)
Act, 1986, it is the legal requirement to protect environment by
plantation also.
Subsequently various rules have been enacted to make search
and seizure in order to assess pollutant activities of one or the other
including units, firms, factories etc.
After coming into effect of the Act, 1986 and after the
pronouncement of the judgment by the Hon'ble Apex Court in Goa
Foundation v. Union of India and Ors., [(2014) 6 SCC 590] and
Common Cause v. Union of India [W.P.(C) No.114 of 2014] dealing
with the scope of environment and its protection at the global level
can it be said that the land is unutilized if plantation has been found
over 1.00 acre of land?
10. This Court, after taking into consideration the impact of the
Environment (Protection) Act, 1986 and the judgment pronounced by
the Hon'ble Apex Court in Goa Foundation v. Union of India and
Others (Supra) and Common Cause v. Union of India (supra), is of
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the view that AIADA has taken an arbitrary decision and not only
that the said decision is without any application of mind whereby
and whereunder it has been held that since 1.00 acre of land
contains plantation as such the same has been declared to be
unutilized which is absolutely improper on the part of AIADA and
AIADA being the machinery of the State under Article 12 of the
Constitution of India, cannot be allowed to take such decision
because if any unit is following the statutory rule in order to
maintain and balance the ecology by following the environmental
laws, it will be victimized and penalized. That is exactly the case here
since the main reason, as would be evident from the various notices,
that the land has been said to be unutilized only because of the
reason that the part of the land contains the plantation which
according to us, cannot be said to be a valid reason for cancellation
of allotment of the land to the extent of 1.00 acre.
Further, it is all along the case of the writ petitioner that the
unit is a growing unit and they are planning to increase the milk
processing capacity from 1,30,000 litres per day to 1,50,000 litres
per day in order to meet out the demand for which several other
equipment and other mechanism are to be established including the
mechanism for protecting environment.
Further, if the reason of cancellation of 1.00 acre of land as has
been assigned by the AIADA i.e. plantation of trees, will be said to be
valid one, the ultimate result would be that there will be violation of
environmental laws and the petitioner company will be liable for
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prosecution as per the applicable environmental laws but the
appellant, without taking into consideration this aspect of the
matter, has passed the order on frivolous ground for cancellation of
allotment of 1.00 acre of land.
Further, the money has also been forfeited to the extent of 1.00
acre of land which was deposited at the time of allotment. The
question is that when the money has already been deposited for the
entire land, can it be said to be justified decision by the AIADA to
cancel the allotment of 1.00 acre of land absolutely on frivolous
ground by forfeiting the amount deposited to the extent of 1.00 acre
which according to us is absolutely wrong and improper as because
once the amount has been deposited in terms of the conditions of the
allotment letter, it is incumbent upon the authorities to follow such
terms and conditions but herein it is the AIADA who has not followed
the terms and conditions first by not executing the lease deed and
secondly, even after receiving the money from the writ petitioner the
part of the money deposited to the extent of 1.00 acre of land has
been forfeited even though there is no violation of terms and
conditions of the order of allotment.
It is settled position of law that one cannot be allowed to take
advantage of its own wrong. Herein, as per the agreement, the lease
deed was to be executed within six months from the date of deposit
of the money but consciously the lease deed has not been executed
and in absence thereof, the authorities on the basis of notice, has
cancelled 1.00 acre of land. Such decision could not have been taken
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if the lease deed would have been executed and, therefore, if the
lease deed has not been executed by the appellant AIADA, no such
advantage would be allowed to be derived as has been done in the
instant case by cancelling 1.00 acre of land in the garb of
non-utilization of land.
11. We, after discussing the facts vis-à-vis the legal position as
above, have travelled across the impugned order passed by the
learned Single Judge and found therefrom that the learned Single
Judge has taken into consideration the requirement of the land by
the writ petitioner. The learned Single Judge has further considered
the fact that the environmental laws have not been taken into
consideration either by the original authority or the appellate
authority even though they are the machinery of the State within the
meaning of Article 12 of the Constitution of India.
Further, the learned Single Judge has taken into consideration
the Consent to Operate having been issued by the Pollution Control
Board as on 14.10.2009 containing therein the terms and conditions
that the petitioner unit shall submit the environmental statement
every year by 30th September and shall harvest all rainwater
precipitating in the premises and do three tier tree plantation as air
barrier, meaning thereby, the learned Single Judge has taken into
consideration the effect of the environment balance which has been
mandated to be followed under the Environment (Protection) Act and
Rules and once the Pollution Control Board has granted Consent to
Operate the unit with condition and if it would not be followed, the
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consequence would be penal in nature as such plantation of trees in
1.00 acre of land cannot be construed to be non-utilization of land
rather it is requirement of law under Environment (Protection) Act,
1986.
12. This Court, therefore, is of the view that the learned Single
Judge after taking into consideration the fact in entirety and
considering the impact of the environmental laws as also the
Consent to Operate issued by the Pollution Control Board, since has
interfered with the impugned decision passed by the administrative
authorities, it cannot be said to suffer from any error.
13. Accordingly, the instant appeal fails and is dismissed.
14. Consequently, I.A. No. 1326 of 2021 stands disposed of.
(Dr. Ravi Ranjan, C.J.)
I agree
(Dr. Ravi Ranjan, C.J.)
(Sujit Narayan Prasad,J.)
Birendra/ A.F.R.
