Rajasthan High Court - Jodhpur

Mahesh Devendra Dyeing vs Rajasthan State Industrial ... on 13 December, 2021

Bench: Pushpendra Singh Bhati

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 14912/2018

Mahesh Devendra Dyeing, Through Proprietor Shri Mahesh Chandra Chouhan S/o Shri Bhagwan Das, Aged About 62 Years, Ward No. 16, Mali Samaj Bhawan Ke Pass, Gandhipura, Balotra, District Barmer (Raj.).

----Petitioner Versus

1. Rajasthan State Industrial Development And Investment Corporation Limited (Riico), Through Its Managing Director, Udyog Bhawan, Tilak Marg, Jaipur.

2. The Regional Manager, Rajasthan State Industrial Development And Investment Corporation Limited (Riico), Balotra, District Barmer.

3. The Divisional Commissioner Cum Allotment Committee, Jodhpur.

----Respondents Connected With S.B. Civil Writ Petition No. 14908/2018 Mansuri Finishing Works, Through Proprietor Shri Farid Mohd S/o Shri Haji Kasam Khan, Aged About 40 Years, Resident Of Ward No. 2, Khed Road, Near Gogaji Temple, Balotra, District Barmer (Raj.).

----Petitioner Versus

1. Rajasthan State Industrial Development And Investment Corporation Limited (Riico), Through Its Managing Director, Udyog Bhawan, Tilak Marg, Jaipur.

2. The Regional Manager, Rajasthan State Industrial Development And Investment Corporation Limited (Riico), Balotra, District Barmer.

3. The Divisional Commissioner Cum Allotment Committee, Jodhpur.

----Respondents S.B. Civil Writ Petition No. 16266/2018 Mangal Laxmi Processing, Through Proprietor Shri Shrawan Kumar S/o Shri Laxmi Narayan, Aged About 53 Years, Resident Of Opposite Aakdiya Mahadev Temple, Pachpadara Road, Ward No. 29, Balotra, District Barmer (Raj.)

----Petitioner Versus

1. Rajasthan State Industrial Development And Investment Corporation Limited (Riico), Through Its Managing Director, Udyog Bhawan, Tilak Marg, Jaipur

2. The Regional Manager, Rajasthan State Industrial Development And Investment Corporation Limited (Riico),

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Balotra, District Barmer

3. The Divisional Commissioner Cum Allotment Committee, Jodhpur

----Respondents S.B. Civil Writ Petition No. 16301/2018 Mahiman Dyeing Company, Through Proprietor Shri Mahendra Kumar S/o Shri Tulsi Ram Shrimali, Aged About 53 Years, Resident Of Near Barmer Calendar, Ward No. 1, Balotra, District Barmer (Raj.).

----Petitioner Versus

1. Rajasthan State Industrial Development And Investment Corporation Limited (Riico), Through Its Managing Director, Udyog Bhawan, Tilak Marg, Jaipur.

2. The Regional Manager, Rajasthan State Industrial Development And Investment Corporation Limited (Riico), Balotra, District Barmer.

3. The Divisional Commissioner Cum Allotment Committee, Jodhpur.

----Respondents

For Petitioner(s) : Mr. Hemant Kumar Ballani Mr. Devkinandan Vyas for Mr.Rajesh Parihar For Respondent(s) : Mr. Sanjeet Purohit

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

13/12/2021

The brief facts, as noticed by this Court, are that the

petitioners are proprietorship firms and they are challenging the

validity and propriety of the decision taken by the Committee

headed by the Divisional Commissioner in its meeting dated

13.05.2017 whereby a decision has been taken to make allotment

of industrial plots to the respective industries on proportionate

basis to the extent the petitioners are having their respective

industrial plots in the municipal area. The petitioners have also

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challenged the demand notice dated 05.09.2018 issued by the

respondents whereby the petitioners were directed to make the

payment for the plots to be allotted at the rate of Rs.1500/- per

square meter (with regard to area of plots size owned by the

respective applicants) as well as Rs.3000/- per square meter for

the extra area being allotted.

Learned counsel for the petitioners submits that once the

respondents themselves have arrived at a conclusion that the

extra area needs to be allotted for proper functioning of the

petitioners' industries, then breaking the price into two slabs on

the basis of extra plot size was not correct.

This Court passed the following interim order on 01.10.2018:

"Issue notice of the writ petition as well as the stay application to the respondents. Rule is made returnable in four weeks.

In the meantime, the petitioner is provisionally permitted to deposit the cost of industrial plot in question and measuring 2000 Sq. Meters at Rs.1500/- per Square meters without creating any equity in favour of the petitioner or otherwise. Upon needful being done, the allotment of plot made to the petitioner shall not be cancelled."

Learned counsel for the respondent however, submitted that

the bifurcation between the plots have already been made and the

extra plot allotted subsequently is reasonable.

Heard learned counsel for the parties and perused the record

of the case.

This Court finds that the bifurcation of the cost, which is like

doubling it for the purpose of the extra plot from Rs.1500/- per

square meter to Rs.3000/- per square meter has already been

dealt with by this Hon'ble Court in the matter of Hitesh Finishing

Vs. Rajasthan State Industrial Development & Ors. (SBCWP

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No.14774/2018), decided on 06.09.2019. The relevant portion

of the said judgment reads as under:-

"26. Indisputably, the petitioner applied for the plot, when the rates were 800/- per Sq. meter, but when the in-principle decision to allot land to the petitioner was taken by the concerned Allotment Committee on 26.11.2015, the same stood increased. The petitioner was found entitled and eligible for allotment of 2000 Sq. meter land, upon payment of the prevailing rate i.e. Rs.1500/- per Sq. meter. The decision of the allotment committee dated 26.11.2015 was duly ratified by the State Government on 03.02.2016. The matter did not end there; based on the rates prevailing on such date, the respondent - RIICO had issued demand notice dated 17.02.2016 to the petitioner requiring it to make payment of development charges @ Rs.1500/- per Sq. meter.

27. The petitioner did not deposit the amount shown in the said demand notice (dated 17.02.2016) in a hope that plot would be allotted at the earlier rates viz. Rs.800 per Sq. meter. The RIICO has also not taken any decision/action to revoke or cancel the offer made vide letter dated 17.02.2016.

28. However, a perusal of the demand notice dated 17.02.2016 reveals that it does not contain any sunset clause or outer limit, stipulating that if the amount is not deposited in the prescribed period, the offer will be cancelled/revoked. Hence the petitioners' stand of not depositing the amount immediately can be understood.

29. Meanwhile, for the reasons best known to the committee, under the aegis of the Divisional Commissioner, in its meeting held on 13.05.2017, decided to allot proportionate land to the petitioner and other 38 industrial units sailing in the same boat.

30. In considered opinion of this Court, the petitioner's right stood finalised and freezed on the issuance of the demand notice dated 17.02.2016. The terms of allotment cannot be altered, thereafter.

31. A perusal of the minutes dated 13.05.2017 reveals that the said committee was given a mandate to review the decision with respect to 95 industrial units and while dialating upon their cases, the committee, out of the blue made an uncalled for and unwarranted observation, qua these 39 units also, completely being

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oblivious of the fact that their cases were not before it. Needless to add that no one thought it fit to elicit petitioners' response or view point.

32. The decision dated 13.05.2017, taken in the meeting headed by the Divisional Commissioner, is not only contrary to facts, but also without jurisdiction on the face of it. The extract of the minutes reproduced in para No.13 of this judgment leaves no room for ambiguity that cases of those 39 units were not before the committee of Divisional Commissioner.

33. It is only in furtherance of the decision dated 13.05.2017, the petitioner's case, which had attained finality was tabled before the State Government- Industries Department. The State Government, vide its communication dated 28.08.2018 asked the Chairman of RIICO to levy development charges @ Rs.3000/- per Sq. meter - twice the prevailing rates of allotment, for the additional land, while agreeing to the proposal that petitioner and other industrial units be allotted plot admeasuring 2000 Sq. meters. Though this decision too was targeted/meant for 95 units covered by the decision dated 13.05.2017, but the same has been mechanically made applicable to the petitioner(s), who were not covered by the decision dated 13.05.2017.

34. This Court deems it necessary to observe that RIICO and Industries Department are expected to ensure augmentation of the industrialisation in the State and hence, they should ensure speedy establishment of the industrial area and seamless allotment of the plots to deserving units, instead of focusing on profiteering. Charging of premium for the additional land, which is as high as double the prevailing rate, is not only contrary to facts and petitioners' crystallized rights, but also arbitrary and fanciful, given the fact that the RIICO, in October, 2017 itself has offered the plots for allotment @ Rs.1500/- per Sq. Meter.

35. A bare look at the decision dated 28.08.2018 of the State Government shows that the prevailing market rate was Rs.1500/- per Sq. meter. There is no plausible, much less a justifiable reason to charge premium for the purported additional land, particularly when not only the advertisement, even petitioner's application and so also the duly approved decision of the allotment committee talked about 2000 Sq. meters land. The bogy of additional land created so

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also the decision to charge premium, both are untenable.

36. In view of the aforesaid, decision dated 13.05.2017 taken in the meeting headed by the Divisional Commissioner, qua petitioner and other 38 units to the extent of restricting their allotment in commensurate with the land already held by them, is quashed and set aside. It is declared that the decision of the State dated 28.08.2018 cannot be made applicable to the petitioners, to whom allotment had been made on 26.11.2015.

37. Since, the period of more than three years has since lapsed and petitioners have also not deposited the amount demanded by the RIICO in time, with a view to balance the equity, it is deemed appropriate and hence declared that the respondent RIICO shall be entitled for interest calculated @ 12% per annum for the period during which the amount depicted in the first demand notice remained unpaid.

38. Learned counsel for the petitioners informed that almost all petitioners have paid amount calculated at the rate of 1500/- per Sq. meter. The same be paid, if not paid so far. All the petitioners shall pay an interest @ 12% per annum for the period between the date of issuance of demand notice (@ Rs.1500/- per Sq. meter) and the date of deposit or 30.09.2019, which ever is earlier.

39. The respondent RIICO shall issue a demand notice regarding interest amount on or before 30.09.2019 to each of the petitioners and also publish a list of applicable interest payable, on its notice board. All the petitioners are required to deposit the interest amount (and the amount shown in the demand notice, if not deposited so far) on or before 15.10.2019. On depositing of such amount, the respondent RIICO shall allot them plots, while giving plot number on or before 31.12.2019.

40. After allotment of the plots, lease deed be got executed and the possession handed over, peremptorily by 31st March, 2020.

41. Needless to observe that adjudication aforesaid shall be applicable to the present petitioners only. The industrial units who have accepted the terms of the allotment and have paid the amount, will not be entitled to claim refund of the amount already deposited.

42. Present petition, so also, those mentioned in the schedule are allowed in above terms.

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43. Stay petition and all other misc. applications also stand disposed of. "

Learned counsel for the petitioners has relied upon the

judgment rendered by Hon'ble Division Bench of this Court in

Rajasthan State Industrial Development and Investment

Corporation Limited (RIICO) & Anr. Vs. Yunus Dyeing (DB

Spl. Appl. Writ No.1436/2019), decided on 12.10.2020. The

relevant portion of the said judgment reads as under:-

"25. Coming to the question of consequences of the respondents not depositing the deficit amount claimed vide demand notice dated 17.02.2016, it is true that in the demand notice issued it is not specified that if the amount is not deposited in the prescribed period the offer of allotment would be cancelled/revoked, but then it was specifically stipulated in the demand notice issued that deficit amount is required to be deposited within a period of fifteen days. In any case, the provision of Rule 5 of the Disposal of Land Rules, 1979 shall be applicable in respect of the demand notice issued for deifict amount as well and thus, on failure to deposit the amount within the stipulated time, the proposal for allotment could have been treated as lapsed automatically. Further, even if no stipulation is made in the demand notice regarding consequences of failure to deposit the amount within stipulated time, it cannot be said that the offer for allotment made shall remain operative for time indefinite. In this view of the matter, we are not agreeable with the view taken by the learned Single Judge that the respondents' right stood finalised and freezed on issuance of demand notice dated 17.02.2016 and the terms of the allotment could not have been altered thereafter, notwithstanding that they failed to deposit deficit amount in terms of the demand notice within stipulated time.

26. But, the fact remains that the offer of allotment made to the respondents was neither specifically cancelled/revoked nor the same was treated to have lapsed automatically, inasmuch as pursuant to the recommendations of the Committee headed by the Divisional Commissioner, approved by the State Government a fresh demand notice dated 05.09.2018

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was issued by the RIICO proposing the allotment of 500 Sqm. land on proportionate basis @ Rs.1500/- per Sqm. and remaining 1500 Sqm. land @ Rs.3000/- per Sqm. i.e. twice of the prevailing rate of the industrial area.

27. Precisely, the question which needs consideration of this Court is whether it was open for the Committee headed by the Divisional Commissioner to apply its decision regarding allotment of the land on proportionate basis to the 39 industrial units in respect whereof the issue with regard to their entitlement for allotment of industrial plots measuring 2000 Sqm. at the rate prevalent had already been concluded vide resolution dated 25.11.2015 adopted by a Committee headed by the District Collector, which was duly approved by the State Government vide order dated 03.02.2016 and pursuant thereto a demand notice for depositing 25% of the amount of development charges and 1% security amount, applying the prevailing rate of development charges i.e. Rs.1500/- per Sqm. had already been issued in their favour.

28. It is matter of record that the Committee headed by the Divisional Commissioner was constituted exclusively for reconsideration of eligibility 95 unsuccessful industrial units for allotment of the land in the industrial area, whose applications were rejected by the Allotment Committee. Suffice it to say that the matter with regard to allotment of the land in favour of 39 applicants, the respondents herein and their likes, was neither referred for reconsideration to the Committee headed by the Divisional Commissioner, nor they were called upon to respond to the proposal of allotment of the land in proportion to the land occupied by their industrial units operating in non-conforming area and thus, the recommendations made by the Divisional Commissioner unilaterally treating the respondents at par with other 95 applicants, whose claims for allotment were specifically referred for reconsideration to the Committee by the State Government, were ex- facie without jurisdiction and could not have been approved by the State Government, ignoring its earlier approval of the respondents' entitlement for allotment of industrial plots of 2000 Sqm. accorded vide communication dated 03.02.2016.

29. Moreover, a perusal of the approval letter dated 28.08.2018 issued by the State Government makes it abundantly clear that the recommendations made by

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the Divisional Commissioner in respect of 53 applicants i.e. 14 applicants out of 95 unsuccessful applicants and 39 applications which includes the respondents herein, was accepted by the State Government in mechanical manner without noticing that the matter with regard to the allotment of the land to the respondents herein and their likes already stands concluded with the approval granted by the State Government vide communication dated 03.02.2016. Thus, the decision of the State Government in treating all the 53 eligible units at par and imposing the condition that premium of the land for excess area beyond the area decided by the Divisional Commissioner Committee shall be charged @ Rs.3000/- per Sqm. i.e. twice of prevailing rate of allotment of the industrial area, is avowedly illegal and arbitrary. Since the decision regarding proportionate allotment cannot be applied to the respondents herein, the question of levying development charges from them twice the prevalent rate does not arise and therefore, the appellant-RIICO is under an obligation to allot the industrial plots measuring 2000 Sqm. as already determined vide decision dated 25.11.2015 taken by the Committee headed by the District Collector, approved by the State Government at the prevailing rate, which is accepted to be Rs.1500/- per Sqm. even as per the decision of the State Government contained in approval letter dated 28.08.2018 placed on record by the appellants alongwith reply to the writ petition.

30. For the aforementioned reasons, the view taken by the learned Single Judge that charging of premium for purported additional land as high as double the prevailing rate is not only contrary to the facts and petitioners' crystallized rights, but also arbitrary and fanciful, does not warrant interference by us in exercise of intra court appeal jurisdiction.

31. This takes us to consider the issue regarding liability of interest on delayed deposit of the development charges/premium. It is noticed that the learned Single Judge with a view to balance the equity already directed that the RIICO shall be entitled for interest calculated @ 12% p.a. for the period during which the amount depicted in the first demand notice i.e. dated 17.02.2016, remained unpaid and accordingly, the respondents have been directed to pay interest @ 12% p.a. for the period between the date of issuance of demand notice (@ Rs.1500/- per

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Sqm.) and the date of deposit or 30.09.2019, whichever is earlier. But, the question of entitlement of the RIICO for interest on delay in depositing of remaining 75% of the development charges has not been specifically dealt with by the learned Single Judge. Obviously, on account of non-deposit of the amount in terms of the demand notice (25% of the development charges and 1% security amount), the further process could not be undertaken and for this reason, the payment of remaining amount of 75% of the development charges/premium payable on allotment of the land has also been delayed and thus, the RIICO stands deprived of the beneficial use of the money. In this view of the matter, the respondents have to be held liable to pay the interest on remaining 75% of the development charges as well, from the date it would have become due till the date of actual deposit. It will not be out of place to mention here that as per the Disposal of Land Rules, 1979, 75% of the remaining amount of development charges/premium is also required to be deposited within the stipulated time and the delay in timely payment thereof attracts the liability of interest.

32. Accordingly, it is hereby clarified and directed that in terms of the order passed by the learned Single Judge the interest @ 12% p.a. shall be payable by the respondents not only on the deficit amount of 25% of development charges and 1% security amount indicated in the demand notice dated 17.02.2016, rather the interest shall be payable on the remaining amount of 75% of the development charges/premium as well.

33. The special appeals stand disposed of with the modification/clarification of the order passed by the learned Single Judge as indicated above.

34. No order as to costs."

This Court finds that the issue has been amply discussed by

this Hon'ble Court in Hitesh Finishing (supra) and does not require

any fresh adjudication. This Court also takes note of the fact that

the dispute of present petitioners and Hitesh Finishing (supra), are

arising out of the advertisement issued by the respondents on

30.08.2008 and therefore, they stand on the same pedestal and

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once there is an approval then it has to be commonly

implemented for all.

Thus, the present petitions are disposed of on the same