High Court
Case Details
WP(C) 4184/2006 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER Both the writ petitions, by and between the same parties, being inter co nnected, have been heard together and are being disposed of by this common judgm ent and order. 2. In WP(C) No.4184/06, the petitioner has challenged the Annexure-34 lette r dated 18-3-2006 issued by the respondent Corporation annexing therewith the bi ll No.1885 dated 18-3-2006 for an amount of Rs.2,59,971/- and demanding the peti tioner to pay the amount within 15 days with the stipulation that upon failure t o do so, the amount would attract penalty @ 18% per annum. The bill was raised a s the Special Maintenance Charge (SMC) in respect of the plot of land that was a llotted to the petitioner for setting up an industrial unit at Export Proportion Industrial Park (EPIP), Amingaon. The letter also referred to the AIDC Disposal of Land Rules, 1998 (in short (cid:28)the Rules, 1998 (cid:29)). According to the petitioner the very fixation and levying of SMC is ille 3. gal and unauthorised. It is the stand of the petitioner that the fixation of the SMC having been done by the third party, namely, Infrastructure Provider Societ y of Assam, the same is illegal and unauthorised and beyond the provisions of th e Rules, which bind the parties. Some other grounds have also been alleged towar ds non liability of the petitioner to pay the SMC. According to the petitioner, because of the inaction of the respondent Corporation, the lease deed in respect of the land that was allotted to the petitioner, could not be executed and cons equently it also could not set up the industry by obtaining the finance from the financial institutions. Another ground urged is that the belated approval of th e lay out plans submitted by the petitioner resulted in delay in setting up the industry. Thus, according to the petitioner, the inaction on the part of the re spondent Corporation debarred it from levying and demanding SMC. 4. The challenge in WP(C) No.376/2007, is to Annexures-26 and 27 communicat ions both dated 08.12.2006, by which the respondent Corporation asked the petiti oner to show cause as to why the allotment of land referred to above should not be cancelled owing to failure to set up the industry (Glazed Tiles manufacturing unit) within 3(three) years from the date of allotment of the land and non paym ent of the SMC and service charge as per the terms of allotment. By the second letter, the petitioner was informed of its liability in respect of the aforesaid charges and the adjustment of Rs.64,050/-, which was deposited by the petitione r at the time of allotment of the land against the defaulted amount of SMC. The bill in respect of the SMC amounting to Rs.2,75,022.27 was also enclosed alongw ith the letter. 5.
Legal Reasoning
The basic stand towards assailing the said 2(two) communications and the bill is the same as that of the first writ petition. The additional ground urg ed is that during the pendency of the earlier writ petition, the respondent corp oration could not have issued the impugned letters. The writ petition was ente rtained by order dated 24.01.2007 with the interim order to maintain status quo with regard to petitioner’s allotment of the land under the Corporation. Howeve r, the petitioner was directed to submit its reply to the impugned notice and in the event of doing so to dispose of the same by the Corporation on merits.
Legal Reasoning
6. I have heard Ms. M. Hazarika, learned senior counsel assisted by Ms. A. Ajitsaria, learned counsel for the petitioners. I have also heard Mr. B.D. Das, learned senior counsel assisted by Mr. D. Nath, learned counsel representing th e respondent Corporation. I have also gone through the materials available on r ecord. 7. Ms. Hazarika, learned counsel for the petitioner in her elaborate argume nt submitted that the action on the part of the respondent Corporation being fou nded on illegality the same is liable to be interfered with. She submitted that the respondent Corporation having deprived the petitioner of setting up the indu stry in the allotted land by not executing the lease agreement and also not appr oving the lay out plans etc. could not have taken recourse to action towards can celling the allotments and demanding the service charge. Referring to the vario us provisions of the Rules, 1998, she submitted that the respondent Corporation cannot entrust the task of levying SMC to a third party in as much as the agreem ent was only with the respondent Corporation and not with any third party. 8. Countering the above argument Mr. B.D. Das, learned senior counsel for t he respondent Corporation made his submission in reference to the averments made in the counter affidavit filed in the first writ petition. He also referred to the averments made in Misc. Case No.1902/2012 that has been filed by the respon dent Corporation seeking vacation of the interim order dated 24.01.2007 passed i n WP(C) No.376/2007 by which a direction was issued to maintain status quo in re spect of the land allotted to the petitioner. He submitted that the petitioner h aving entered into an agreement in respect of the land allotted to it, it is bou nd by the terms and conditions thereof. Emphasising the need for utilisation of the land for the purpose for which it was allotted to the petitioner, he submit ted that not only the petitioner did not utilize the land and kept it idle, but it also failed to pay the SMC and service charge. Referring to Annexure-M lette r dated 19.04.2009 annexed to the counter affidavit filed in WP(C) No.4184/2006, he submitted that when the petitioner responded to the impugned show cause noti ce in terms of the interim order passed in WP(C) No.376/2007, the Corporation de alt with the matter taking note of the attending facts and circumstance and issu ed the said letter to the petitioner, which according to the learned counsel, me ets all the points raised by the petitioner in the writ petitions. 9. The petitioner applied for allotment of 2500 Sq. Mtr. of land. It was l ater on increased to 4000 Sq. Mtrs. of land in EMP on 60(sixty) years lease basi s and it deposited the required amount as security and 25% amount of development charges in favour of the respondent No.1. The land was allotted to the petitio ner to set up a factory for manufacturing Glazed Tiles with a capacity of 500 to nnes per annum. The required project profile etc. was submitted by Annexure-1 letter dated 02.02.2000. In response to the said letter, the petitioner was all otted with the land. Be it stated here that the EPIP was set up under the Centr al Government Scheme. As would be evident from the Annexure-10 letter dated 05.1 0.2001, the petitioner was pointed out by the respondent Corporation that till t hat date it had not started implementation of the Glazed Tiles manufacturing pro ject at the allotted land. He was requested to start the activities forthwith. 10. The defence plea of the petitioner was that some communications had been made with the Directorate of Geology & Mining and that there was no response fr om the said Directorate. When the matter rested thus, the respondent Corporation by its Annexure-12 letter dated 22.07.2002 informed the petitioner and some oth er allottees about the unauthorised constructions in the area allocated to them. By Annexure-13 letter dated 22.07.2002, the petitioner was informed about its liability to pay service charge at the rate of 1% on development charges and abo ut the non payment of the same for the financial years from 1999-2002 to 2002-03 . The said letter was followed by the Annexure-16 letter dated 20/22.01.2003 in timating the petitioner about the levying of SMC @ Rs.1/- per Sq.Mtr./month from April, 2002 and Rs.1.75 per Sq.Mtr/month from November, 2002. By the said let ter, the petitioner was directed to make payment in favour of the aforementioned Infrastructure Provider Society of Assam (IPSA). It is on this ground alongwith the aforementioned grounds, the petitioner has refused to pay the SMC to the re spondents, which eventually resulted in issuance of the impugned Annexure-34 let ter dated 18.03.2006 raising the bill of Rs.2,59,971/-. 11. So far as the second writ petition is concerned, the same has been filed in respect of the Annexure-26 show cause notice dated 08.12.2006 directing the petitioner to show cause as to why the allotment of land should not be cancelled upon failure to set up the industry and pay the SMC and service charges. In th is writ petition also the petitioner has urged the same ground as has been urged in the first writ petition. According to the petitioner, it is not liable to p ay SMC because of the said grounds. 12. nter alia as follows:- The land was allotted to the petitioner clearly stipulating conditions i (cid:28)1. I/We have read the Rules & Conditions of allotment in EPIP, Amingaon, Guwah ati together with the forms thereof. 1. I/We, the undersigned, hereby offer to take on 60 years lease the above plot of land measuring, approximately 2,500 Sq. mtrs. on the terms and condition s set out in the form of Lease Agreement and AIDC Disposal of Land Rule, 1998 fo r EPIP and offer to enter into Lease Agreement with you in respect of the said p lot according to the said form. 2. The lease will commence from the date from which the allotment of the pl ot is made to me/us and the obligations and liabilities under the lease agreemen t will be deemed to have commenced from that date. 8. Should I/We fail to execute and complete the agreement within 90 days from th e date of allotment or within such extended period as you may permit, the Corpor ation will be at liberty to forfeit the security money, cancel the allotment of plot without prejudice to all other rights of the Corporation. 12. I/we also agree to the effect that the Corporation shall be at liberty to di spose of the taken over assets by way the Corporation understands suitable and I /we shall accept the sale proceeds after reducing all type of expenditure incurr ed and penalties imposed by the Corporation if any, from the amount realised on disposal of assets. 13. I/we hereby agree to pay the special maintenance charges fixed or revised by the Corporation from time to time in addition to ground rent and service charge s. (cid:29) 13. e claim, the petitioner also furnished the following undertaking:- In the statement to the Form of Application, alongwith the details of th (cid:28)13. Should I/we fail to deposit balance 75% Development Charges, Ground Rent, S ervice Charges and Special maintenance Charges and to execute the Lease Agreemen t within 90 days from the date of allotment or within such extended period as yo u may permit or to start the construction of main production shed within one yea r after getting approval of factory building plans from the Corporation and comp lete the same and start production within three years from the date of execution of Lease Agreement or from the date of possession (whichever is earlier) or wit hin such extended period as you may permit, the Corporation will be at liberty t o forfeit the Security Money, cancel the allotment of plot without prejudice to all other rights of the Corporation. (cid:29) Although way back in 2000, the petitioner undertook to set up an industr 14. y for production of Glassed Tiles, the fact of the matter is that even after exp iry of 13(thirteen) years it has even failed to establish the project, not to s peak of any production activity. By Annexure-3 letter dated 25.02.2000, the res pondent Corporation intimated the petitioner about the allotment of the land and the terms and conditions as stipulate therein and the aforesaid 1998 Rules. By Annexure-16 communication dated 20.22.2003, the petitioner was informed about th e SMC and it was requested to make the payment in favour of the (cid:28)Infrastructure Provider Society of Assam. (cid:29) Similar letters were issued to other units requirin g them to deposit the SMC. During the course of hearing of the writ petitions, it was submitted by Mr. Das, learned senior counsel representing the respondents Corporation that baring the petitioner, almost all the allottees have deposited the SMC. In respect of raising the aforesaid bill SMC, the petitioner did not do 15. anything in the matter, towards questioning its liability to pay SMC in favour o f the Society. It was only on the issuance of the impugned Annexure-34 letter d ated 18.03.2006 raising the final bill of Rs.2,59,971.29 with the stipulation of attracting penalty @ 18% per annum upon failure, it filed the first writ petiti on questioning the very authority of the respondents Corporation to levy the SMC . There is no dispute that the petitioner is bound by the terms and conditions of allotment and also the provisions of the 1998 Rules. Although the petitioner has questioned the authority of the respondent C 16. orporation to raise bill against the SMC with direction to deposit the same with the Infrastructure Development Society, but the same is not at all tenable. Ru le 2(x) of the Rules, 1998 defines (cid:28)Infrastructure Development Committee (cid:29) as Inf rastructure Development Committee constituted by the Board of the Corporation. Rule 2(xv) defines (cid:28)Service Charges (cid:29) as charges fixed by the Corporation from ti me to time. There is specially mentioned of the (cid:28)Special Maintenance Charges (cid:29) ( SMC) under Rule 2 (xvi), which means the charges fixed by the Corporation from t ime to time. 17. follows:- Rule 12 under the head (cid:28)Service Charge on Development Charges (cid:29) reads as (cid:28)12. Service charge on Development Charges The allottee shall pay service charge @ 1% on development charges per annum whic h shall be paid within ninety days from the date of allotment of land in the cur rent financial year and at the beginning of each financial year in advance by 30 th April of every year. The corporation reserves the absolute right to revise the rate of service charge every 3 years. The quantum determined by the Corporation shall be final, concl usive and binding on the allottee and it shall not be questioned in any court of law or otherwise. (cid:29) 18. Rule 13 stipulates that the allottee shall abide by the terms and condit ions of lease agreement as well as allotment letter and other terms as may be la id down by the Corporation from time to time. Rule 14 provides for termination of lease in case of default. Rule 18(ii) binds an allottee to pay the service c harges in addition to rent, for every financial year in advance by the end of 30 th April of each financial year. Rule 18(iv) provides for SMC imposed and or re vised by the Corporation at the time of allotment or as may thereafter be impose d by the Corporation shall be payable by the allottee in addition to the Ground Rent, Service Charges, for every financial year in advance by the end of July ea ch year. 19. Rule 24 under the head (cid:28)Period for Construction/Production (cid:29) stipulates t hat the construction of factories shall commence within the period of one year a nd the same shall be completed/finished, fit for use of production started withi n the period of three years from the date of possession or execution of lease ag reement, whichever is earlier. Under Rule 27, the respondent Corporation reserv es the right to cancel the allotment after issuing a 15(fifteen) days show cause notice to the allottee. 20. The petitioner having been allotted with the land with the terms and con ditions in the allotment order itself and the Rules, 1998, there is absolutely n o manner of doubt that the petitioner cannot absolve itself from the said terms and conditions by taking pleas referred to above. The plea that the SMC could no t have been levied by a third party is not at all tenable inasmuch as Clause 2(x ) of the Rules referred to above clearly stipulates that the Infrastructure Deve lopment Committee be constituted by the Board of the Corporation. The said Commi ttee having been constituted by the Corporation for the particular purpose, the same cannot be said to be arbitrary. The respondent Corporation is within its do main and competence to utilise the services of the Society and to direct the pet itioner to pay the SMC to the said Society. The petitioner having furnished the undertaking to pay the required charges including the SMC, it cannot now questio n the levying and demanding of the same on the feeble ground referred to above.
Decision
21. When the second writ petition being WP(C) No.376/2007 was entertained an d as noticed above the petitioner was directed to respond to the impugned notice s dated 8-12-2006 to which it submitted its reply against the same. As per the l iberty granted by this Court the respondent Corporation has disposed of the matt er taking note of the entire facts and circumstances and the results thereof was also communicated to the petitioner by the aforementioned Annexure-3 letter dat ed 19-4-2007 (in MC No.1902). The said communication deals with the entire facts and circumstances and the grounds urged by the petitioner. As reflected in the said letter, the land allotted to the petitioner has not been utilised for the p urpose it was allotted and the same remained vacant. The petitioner has also not paid services charges and SMC as per the Rules, 1998. So far as the plea of the petitioner towards non payment of SMC and development charges is concerned, the letter inter alia states thus :- (cid:28)l) In regard to special maintenance charge it may be noted that a) The State Level Committee constituted by the Govt of Assam as per Genera l Guidelines for implementation of the Export Promotion Industrial Park at Aming aon in its 19th Meeting held on 30/12/2002 ratified the decision on the levy of special maintenance charges @ Rs.1.75/Sqm/month w.e.f. November, 2002 onwards. T he Committee further decided that Industrial Units at EPIP would pay Special Mai ntenance Charges @ Rs.1.00/Sqm/month w.e.f. April, 2002 to October, 2002. The de cision was taken after a Meeting with the EPIP Initiative, a body constituted wi th the users Unit at EPIP. m) d as follows. Regarding Development Charges, the State Level Committee for EPIP decide a) b) eld on 29/03/2000. c) 31/12/2002. Rs.200.00/- per Sqm. With rebate in the SLC Meeting held on 03/12/1998. From 29/03/2000 to 31/12/2002 @ Rs.300.00/- per Sqm in the SLC Meeting h From 01/01/2003 onwards, Rs.400.00/- per Sqm in the SLC Meeting held on As per clause 11 of the AIDC Disposal of Land Rules, 1998 for EPIP on SE n) RVICE CHARGE on DEVELOPMENT CHARGES the allottee to pay service charges @ 1% on development charges per annum which shall be paid within ninety days from the da te of allotment land in the current financial year in advance by 30th April, eve ry year. (cid:29) 22. By the said letter dated 19-4-2007, the petitioner was also made known t hat the other allottees have been paying the SMC, service charges as fixed by th e Committee from time to time except the petitioner. The stand in the said lette r which is also reflected in the counter affidavit filed by the respondent Corpo ration has not been denied by the petitioner by filing any rejoinder. Even if th e same had been filed, it would not have made any difference. The fact of the ma tter is that the petitioner has not only failed to utilise the land for the purp ose it was allotted to it, it has also failed to pay the charges and coming to t he writ court has raised the aforesaid pleas to frustrate the action on the part of the respondent Corporation. In the first writ petition no interim order was passed. The second writ 23. petition was filed without answering the show cause notice dated 8-12-2006. Purs uant to the intervention of this court, the petitioner had to respond to the sai d show cause notice. As to what is the outcome of the said show cause notice and the response shown by the petitioner has been noted above. The matter has been disposed of by the aforementioned Annexure-3 letter dated 19-4-2007 annexed to t he counter affidavit filed in the first WP(C) No.4184/2006. If the petitioner ha s failed to utilise the land for the last 13 years and has also failed to pay th e charges, I find no reason to interfere with the impugned action on the part of the respondent Corporation. 24. When the matter was first heard on 9-1-2013, taking note of the stand of the respondent Corporation in its aforesaid Annexure-3 letter dated 19-4-2007, the learned counsel for the petitioner was requested to apprise the court about the response shown by the petitioner in respect of the said letter followed by a ny activity of the petitioner over the allotted land. However, when the matter w as taken up for final hearing on 24-1-2013, except reiterating the aforesaid ple as in the writ petitions, nothing was apprised about the response of the petiti oner in respect of the said letter dated 19-4-2007 and also as to whether the pe titioner has carried out any activity in the allotted land. Mr BD Das, learned s enior counsel representing the respondent Corporation by producing certain photo graphs of the allotted land, which was obtained on 16-1-2013, submitted that the petitioner has failed to carry out any activity over the land and the land is f ull of jungles and garbages. He also submitted that when the State needs industr ialisation, the allotted land cannot be made to remain unutilised for years to c ome. 25. Above being the position, I do not find anything in the writ petitions w hich would require interference with the impugned action on the part of the resp ondents. The petitioner having accepted the terms and conditions of allotment an d offering its willingness to open its projects, cannot now absolve itself from those terms and conditions, so as to question the actions of the respondent Corp oration. 26. In MC No.1902/2012, the respondent Corporation has stated as to how the petitioner has failed to pay the charges in respect of the land. As per the said application, the total outstanding dues of the petitioner as on May, 2012, towa rds the said charges, stands at Rs.12,03,745/-. In paragraph 5 of the said appli cation, it has been stated that all other units have been paying dues regularly and due to non payment of dues by the petitioner to the respondent Corporation i t has been facing financial difficulties. It has also been stated that the land is lying unutilised because of the interim order operating in these proceedings, the Corporation is not in a position to allot the same to others. 27. Much have been stated about the non execution of the lease agreement bec ause of which, it is alleged, that the petitioner failed to obtain financial ass istance. However, there is nothing on record to show and to prove the same. The non execution of the lease agreement was immaterial inasmuch as the petitioner d uly occupied the allotted land and the terms and conditions of the allotment cam e into operation from the date of allotment. It will be pertinent to mention her e that the lease agreement was executed on 18-4-2007, wherein also the liability of the petitioner to pay SMC is very much stipulated with the further stipulati on that the parties would be governed by the aforesaid Rules, 1998. As stated in the affidavit in reply filed by the respondent Corporation in MC No.1902/2012, the petitioner had submitted the lease agreement only on 23-9-2005 for a plot of land of 2950 Sq Mtr against the actual allocation of 2500 Sq Mtr of land. 28. For all the aforesaid reasons, I do not find any merit in the writ petit ions and consequently both the writ petitions stand dismissed. The interim order passed on 24-1-2007 stands vacated. The respondent Corporation shall now procee d with the matter in accordance with law. 29. osts. The writ petitions are dismissed leaving the parties to bear their own c