Patna High Court
M/S Bihar Trade Towers Pvt Ltd vs The State Of Bihar on 1 October, 2024
Author: A. Abhishek Reddy
Bench: A. Abhishek Reddy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Jurisdiction Case No.1099 of 2024
In
Civil Writ Jurisdiction Case No.1904 of 2024
======================================================
M/s. Bihar Trade Towers Pvt. Ltd. (Earlier known as M/s. Aishwarya
Foundation) Having its Registered Office at 46, Patliputra Colony, Near
Sahyog Hospital, Patna - 800013 through its Authorized Signatory, Anand
Kumar, Male, Aged about 38 years, son of Sri Jai Nandan Prasad, Resident of
Near Shivajee Mandir, Gandhi Mela Path, Tundi Road, P.S. Govindpur,
District Dhanbad (Jharkhand)
... ... Petitioner/s
Versus
1. The State of Bihar through the Sri Chaitanya Prasad, Development
Commissioner cum Chairman, State Investment Promotion Board,
Government of Bihar, Main Secretariat, Patna.
2. Sri Sandip Pondrik, The Additional Chief Secretary, Department of Industry,
Government of Bihar cum Chairman and Managing Director, Bihar
Industrial Area Development Authority, Bikas Bhavan, Bailey Road, Patna.
3. The Bihar Industrial Area Development Authority, Udyog Bhawan, Gandhi
Maidan, Patna through Sri Sandip Pondrik, its Chairman cum Managing
Director, Patna.
4. Sri Sandip Pondrik, The Additional Chief Secretary cum Managing Director,
Bihar Industrial Area Development Authority, Udyog Bhavan, Gandhi
Maidan, Patna
5. Sri Chandra Shekhar Singh, The Executive Director, Bihar Industrial Area
Development Authority, Udyog Bhavan, Gandhi Maidan, Patna.
6. Sri Soumya Verma, Deputy General Manager, Bihar Industrial Area
Development Authority, Udyog Bhavan, Gandhi Maidan, Patna Cluster,
Patna.
... ... Opposite Party/s
======================================================
with
Civil Writ Jurisdiction Case No. 1904 of 2024
======================================================
M/s Bihar Trade Towers Pvt Ltd earlier known as M/S Aishwarya Foundation,
Regd. Address- 46, Patliputra Colony, Near Sahyog Hospital, Patna- 800013
Unit Address- Plot No. E2- E3, Patliputra Industrical Area, Patna- 800013
through its Authorized Signatory namely Anand Kumar, Male, Aged about 38
years, Son of Shri Jai Nandan Prasad, Resident of Near Shivji Mandir, Gandhi
Mela Path, Tundi Road, P.S.- Govindpur, District- Dhanbad (Jharkhand).
... ... Petitioner/s
Versus
1. The State Of Bihar through the Development Commissioner-cum-Chairman
of State Investment Promotion Board, Government of Bihar, Patna.
2. The additional Chief Secretary, Industries Department-cum-Chairman and
Patna High Court MJC No.1099 of 2024 dt.07-10-2024
2/12
Managing Director, Bihar Industrial Area Development Authority (BIADA),
Patna, Bihar.
3. The Bihar Industrial Area Development Authority (BIADA), Udyog
Bhawan, Gandhi Maidan, Patna through its Chairman-cum-Managing
Director.
4. The Additional Chief Secretary-cum-Managing Director, Bihar Industrial
Area Development Authority (BIADA), Udyog Bhawan, Gandhi Maidan,
Patna.
5. The Executive Director, Bihar Industrial Area Development Authority
(BIADA), Udyog Bhawan, Gandhi Maidan, Patna.
6. The Deputy General Manager, BIADA, Patna Cluster, Patna.
... ... Respondent/s
======================================================
Appearance :
(In Miscellaneous Jurisdiction Case No. 1099 of 2024)
For the Petitioner/s : Mr. S.D. Sanjay, Sr. Adv.
: Mr. Mohit Agarwal, Adv.
: Mr. Vishal Kumar, Adv.
For BIADA : Mr. Lalit Kishore, Sr. Adv.
: Mr. Avinash Kumar, Adv.
: Mr. Ajay Kumar Mehta, Adv.
For the Opposite Party/s : Mr. Standing Counsel 3
(In Civil Writ Jurisdiction Case No. 1904 of 2024)
For the Petitioner/s : Mr. S.D. Sanjay, Sr. Adv.
: Mr. Mohit Agarwal, Adv.
: Mr. Vishal Kumar, Adv.
For BIADA : Mr. Lalit Kishore, Sr. Adv.
: Mr. Avinash Kumar, Adv.
: Mr. Ajay Kumar Mehta, Adv.
For the Respondent/s : Mr. Standing Counsel (3)
======================================================
CORAM: HONOURABLE MR. JUSTICE A. ABHISHEK REDDY
CAV JUDGMENT
Date : 07-10-2024
Civil Writ Jurisdiction Case No. 1904 of 2024
Heard the learned counsel for the parties.
The present writ petition has been filed for the following
reliefs:-
"a) For quashing of the order dated
24.01.2024
under the signature of the Deputy
General Manager, BIADA, Patna Cluster, Patna
communicated vide letter No. 84 dated
24.01.2024by which the Industrial Plot No. E2 &
E3 having area of 72527 sq. ft. in the Patliputra
Patna High Court MJC No.1099 of 2024 dt.07-10-2024
Industrial Area, Patna of the petitioner for setting
up an I. T. Park has been cancelled by restoring an
earlier order of cancellation dated 16.01.2020
(which was set aside in Appeal earlier) in most
arbitrary and malafide manner and being wholly
without jurisdiction and without any authority of
law;
b) For quashing of the order dated
24.01.2024 by the Respondent Deputy General
Manager, Bihar Industrial Area Development
Authority, Patna Cluster, Patna restoring the
earlier order of cancellation dated 16.01.2020
by the then Executive Director under the
direction of the then Managing Director, being
wholly illegal and without any authority of
law;
(c) For quashing the order dated
16.01.2024 passed by the Chairman cum
Managing Director cum Additional Chief
Secretary, Department of Industries,
Government of Bihar by which he has directed
the Petitioner to deposit a sum of Rs. 20.00
lakhs and a Bank Guarantee of Rs. 50.00 Lakh
to be treated as voluntary act as the Chairman
cum Managing Director was doing it to extend
one year time for completion of construction of
building of I.T. Park which is under
construction at an advance stage;
d) For a declaration that in terms
of Section 6(2)(a) of BIADA Act, the provision
of appeal before the State Government has
been made illusory as the Managing Director
who is the part of the authority is exercising
the power of appeal which is to be exercised by
the State Government, therefore, no appeal
could have been preferred or can be preferred
before the Managing Director in the facts of
the present case;
(e) For restraining the Respondents
from taking any action to dispossess the
Petitioner from Plot Nos. E-2 & E-3 as such
action is wholly without any authority of law
and not sanctioned by the provisions of the
BIADA Act;
(f) For a direction to the
Respondents to allow the Petitioner and not to
Patna High Court MJC No.1099 of 2024 dt.07-10-2024
make any disturbance in completing the
remaining work in its project;
(g) For restraining the respondents
to create any third party right in haste by
denying the petitioner to avail the remedy for
which is entitled in the law; and to grant such
other relief or reliefs before this Hon'ble Court
may deem fit and proper in the facts and
circumstances of the present case."
3. It is the case of the petitioner that the petitioner had
purchased the subject property from one Asset Reconstruction
Company. That the original allottee had mortgaged the property to
a financial institution and as the original allottee could not repay
the loan amounts due to the financial institution, the leasehold
rights of the subject property were auctioned. That the petitioner
had participated in the auction and being the highest bidder, was
given the leasehold rights in perpetuity and registered documents
were executed in his favour.
4. Learned counsel for the petitioner has stated that the
subject matter of the property are Plots Nos. E-2 & E-3 total
admeasuring 72,527 Sq. ft. The petitioner thereafter, had
approached the respondent/ authorities for mutating his name and
after payment of the amounts as demanded by the respondent-
BIADA, the name of the petitioner was mutated. Further, it is
stated as it was not feasible for starting the steel industry which
was the original purpose of allotment of the original allottee, the
petitioner applied for change of industry from steel industry to
Patna High Court MJC No.1099 of 2024 dt.07-10-2024
construction of I.T. Park and the said permission was granted by
the authority concerned vide Memo No. 529 dated 18.03.2013.
Learned counsel has stated that the petitioner thereafter has started
the necessary work for construction of the I.T. Park but, due to
several logistic problems, he could not start the project in time.
That the petitioner after overcoming the initial difficulties faced by
him and getting the necessary approvals from the concerned
Department, started the construction in the right earnest. That as
on the date of passing of the impugned order of cancellation, the
petitioner had constructed basement, ground floor plus five floors.
Learned counsel has stated that in the year 2020, the official
respondents without any valid reason had cancelled the allotment
made to the petitioner and aggrieved by the order of cancellation,
the petitioner has approached the appellate authority who vide
order dated 08.03.2021 in Appeal No. 12/2020 has allowed the
appeal by setting aside the order of cancellation dated 16.01.2020
and granting a further period of two years time to the petitioner to
complete the construction. Learned counsel has stated that the time
period of two years granted by the appellate authority came to an
end in the month of February, 2023. That the petitioner has again
approached the appellate authority by way of application dated
12.09.2024 seeking extension of the time period by a further
Patna High Court MJC No.1099 of 2024 dt.07-10-2024
period of one year. However, the appellate authority imposed a
condition while proposing to grant extension directing the
petitioner to pay an amount of Rs. 20,00,000/- to BIADA as
compensation and also furnish a bank guarantee of Rs. 50,00,000/-
for extending the time period vide order dated 16.01.2024. That
even before the petitioner could respond to the order dated
16.01.2024 passed by the appellate authority, the impugned order
dated 24.01.2024 has been passed by the authority cancelling the
allotment made to the petitioner by reviving the earlier order of
cancellation dated 16.01.2020 which was already set aside by the
appellate authority vide order dated 08.03.2021. Learned counsel
has stated that once the order of cancellation has been set aside by
the appellate authority, the question of reviving the said order by
the original authority cannot be permitted and it is against the well
established principles of law. Further, learned counsel has stated
that no show cause notice was given to the petitioner before the
order of cancellation dated 16.01.2020 was passed. Learned
counsel has further stated that once the application made by the
petitioner for extension of the time was pending adjudication by
the appellate authority, the original authority ought not to have
passed the order of cancellation impugned in the present writ
petition. That when the authorities were trying to take back
Patna High Court MJC No.1099 of 2024 dt.07-10-2024
physical possession of the subject property in a high-handed
manner, the petitioner had to approach this Hon'ble Court and this
Court vide order dated 02.02.2024 had granted the interim
protection to the petitioner. Learned counsel for the petitioner has
therefore, prayed for setting aside the impugned order dated
24.01.2024 and also the order dated 16.01.2024 passed by the
appellate authority and grant sufficient time to the petitioner to
complete the project.
5. Per contra, the learned Senior Counsel, Mr. Lalit
Kishore, assisted by Mr. Avinash Kumar counsel appearing on
behalf of the respondent-BIADA has vehemently opposed the very
maintainability of the present writ petition and stated that the
present writ petition is liable to be dismissed on the sole ground
that the petitioner has an alternative and effective remedy of filing
an appeal before the appellate authority. Learned counsel has
stated that the petitioner has purchased the leasehold rights in an
auction more than 14 years back and the petitioner has not made
any progress in establishing the hotel. That the petitioner is taking
his own sweet time to complete the construction of the I.T. Park.
Learned counsel has further stated that the authority concerned
duly taking into consideration the fact that the petitioner has
miserably failed in making any progress in the construction of the
Patna High Court MJC No.1099 of 2024 dt.07-10-2024
hotel has rightly cancelled the allotment made and there is nothing
wrong in the impugned order which warrants any interference by
this Court. Learned counsel has therefore, prayed this Court to
dismiss the present CWJC.
6. Admittedly in the present case as seen from record,
the petitioner is not the original allottee of the subject property but
he is an auction purchaser from one Asset Reconstruction
Company. The petitioner has purchased the leasehold rights by
way of registered documents and, thereafter, he has approached the
authorities for mutating his name and also for change of product.
The petitioner has informed the authority that it could not be
feasible to set up a steel industry and the product was changed to
construction of I.T. Park. The fact that the petitioner has started the
construction of I.T. Park has not been denied either in the counter-
affidavit or in the impugned order.
7. A perusal of the impugned order, the site inspection
reports and also the photos filed by the parties clearly establish the
fact that the petitioner has started the construction of I.T. Park. The
reasons for delay in completing the construction as stated by the
petitioner is due to the Covid Pandemic situation which was in
existence from the year 2020 till the end of 2021 appear to be true.
Further, as seen from the record, the petitioner has been making
Patna High Court MJC No.1099 of 2024 dt.07-10-2024
the construction of the I.T. Park and admittedly even as per the
orders passed, the photos filed and the inspection reports, the
petitioner has already completed basement, ground floor plus five
floors as on the date of passing of the impugned order. Therefore,
it cannot be said that the petitioner has been sitting idle and doing
nothing or that there is no progress in the construction. Irrespective
of the fact that the petitioner has been making any construction or
not, a perusal of the impugned order reveals that the order of
cancellation dated 16.01.2020 which was set aside by the appellate
authority vide order dated 08.03.2021 has again been revived by
the original authority. Once an order has been set aside by an
appellate authority or by a superior forum, the original authority
will not have any jurisdiction to revive the earlier order. For all
purpose the earlier order of cancellation dated 16.01.2020 was not
in existence and therefore, the question of reviving the same does
not arise. If at all the respondents wanted to take any action against
the petitioner, they ought to have put the petitioner on fresh notice
seeking an explanation as to why the allotment should not be
cancelled as the petitioner had failed to complete the construction
within the time granted by the appellate authority. But they cannot
revive the earlier order of cancellation which was admittedly set
aside by the appellate authority and not in existence for all
Patna High Court MJC No.1099 of 2024 dt.07-10-2024
purposes. Further, the application made by the petitioner seeking
extension of the time was pending before the appellate authority
and the next date of hearing was put on 25.01.2024 however, the
impugned order of cancellation was passed on 24.01.2024 itself,
that too without putting the petitioner on prior notice. Irrespective
of the fact as to whether subsequently the appellate authority had
dismissed the application/ appeal filed by the petitioner as
withdrawn or not, the fact remains that the impugned order dated
16.01.2020 passed by the authority reviving the earlier order of
cancellation already set aside by the appellate authority has to be
held as one without jurisdiction, illegal, bad, arbitrary exercise of
powers not vested with the authority, non-est in the eyes of law
and therefore, liable to be set aside and is accordingly set aside.
Further, it is to be noted that the petitioner has already completed
basement, ground floor plus five floors, therefore, this Court is of
the opinion that the ends of justice would be best served if the
petitioner is directed to give an undertaking to the authority
concerned stating that he will complete the civil construction and
commence operation within a period of one year from the date of
putting the petitioner in possession. The petitioner shall also
submit a bank guarantee for the sum of Rs. 25,00,000/- along with
the undertaking. Both the undertaking and bank guarantee will be
Patna High Court MJC No.1099 of 2024 dt.07-10-2024
given to BIADA within a period of two weeks from the date of
receipt of a copy of this order. On such undertaking along with
bank guarantee being given, the official respondents shall
forthwith unseal the premises and permit the petitioner to continue
the construction work. The petitioner shall complete the civil
construction and commence operation of I.T. Park within a period
of one year from the date of handing over the possession.
8. It is made clear that the amount of Rs. 25,00,000/- in
the form of bank guarantee furnished by the petitioner will be
treated as a performance guarantee and in case of default by the
petitioner to complete the civil construction and commence the
operations of the I.T. Park within the stipulated time granted by
this Court, the respondent authorities are free to encash the bank
guarantee and take necessary steps to cancel the allotment, in
accordance with law and as per the procedure contemplated under
the Bihar Industrial Area Development Authority Act, 1974.
9. With the above directions, the present writ petition
stands allowed to the extent indicated.
Miscellaneous Jurisdiction Case No.1099 of 2024
In view of the orders passed in the main writ petition,
the MJC is closed. However, with a caveat to the opposite party(s)
that when the cases are pending adjudication before the High
Patna High Court MJC No.1099 of 2024 dt.07-10-2024
Court, the authorities should not try to overreach the orders of this
Court. The act of the opposite party(s) in sealing the subject
premises, is contrary to the undertaking given before this Court
and contemptious. However, this Court is restraining itself from
passing any orders in the MJC and closing the MJC with a caution
that such acts of defiance will not be appreciated or tolerated in
future.
2. The present MJC is closed accordingly.
(A. Abhishek Reddy, J)
Ayush/-
AFR/NAFR NAFR
CAV DATE 08.07.2024.
Uploading Date 08.10.2024.
Transmission Date NA
