M/s Om Industries through its sole proprietor Shri Tuntun Singh … … v. … …
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W. P. (C) No. 2435 of 2014 ----- M/s Om Industries through its sole proprietor Shri Tuntun Singh … …. Petitioner Bokaro Industrial Area Development Authority, Bokaro & Ors. Versus … …. Respondents With W. P. (C) No. 2462 of 2014 -----
Legal Reasoning
M/s Advance Technicians & Company through its sole proprietor Shri Karimullah Khan … …. Petitioner Bokaro Industrial Area Development Authority, Bokaro & Ors. Versus … …. Respondents With W. P. (C) No. 2568 of 2014 ----- M/s Ganpati Industries through its sole proprietor Shri Rakesh Kumar Singh Petitioner … …. Bokaro Industrial Area Development Authority, Bokaro & Ors. Versus … …. Respondents ----- CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY ----- For the Petitioner For the Respondents : M/s Abhay Mishra, Amrita Sinha, Anish Kumar Mishra, Advocates : Ms. Richa Sanchita, Advocate Mr. Ashok Kumar Yadav, Advocate Mr. Awanish Shekhar, AC to Mr. Sachin Kumar, AAG-II Oral Order 14 / Dated : 21.08.2023 ----- 1. All the writ petitions arise out of same question of fact and law and are
Decision
being heard together and disposed of by this common order. 2. Bokaro Industrial Area Development Authority, Bokaro (hereinafter called as BIADA) had leased out the industrial plots to the original lessees for a period of 99 years. Separate lease agreement was executed by the BIADA in favour of the original lessees for a leased hold lands for setting up the industrial units. The original allottees mortgaged the leased hold area with the Bihar State Financial Corporation (Respondent no. 5) and took loan to establish and run industrial unit. Subsequently, the original allottees defaulted in payment of loan and BSFC by invoking Sections 29 and 30 of the State Financial Corporation Act, 1951 auctioned the leased hold area which was subsequently purchased by the petitioners. The petitioners are the auction purchasers. 2 3. After the auction purchase, the petitioners approached the BIADA for substituting the names of the petitioners in place of original lessees which was not entertained and the BIADA insisted for payment of 100% of the current value of the assets as a condition for substitution of the name of the petitioners in place of original lessees. Aggrieved by this, the present writ petitions have been filed. 4. It is submitted by learned counsel for the petitioners that no fresh sale has been executed by the BIADA in favour of the petitioners. They have purchased the leased hold plots in the auction purchase from the financial institution for the remaining period of lease which was executed for 99 years. By purchasing the plots they have simply stepped into shoes of the original lessees. Therefore, in view of the ratio decided by the Division Bench of this Court in L.P.A. No. 621 of 2018, the petitioners cannot be saddled with liability to pay the purchase amount afresh to the BIADA 100% of the market value of assets, as there was no new lease deed. This Court followed in L.P.A. No. 621 of 2018, followed the ratio, decided by the Patna High Court in M/s Vikramashila Transformers (Pvt.) Ltd. Vs. The State of Bihar & Ors. (1994 (1) PLJR 601), has been followed wherein it has been held that there is no provision in the said lease deed requiring the purchaser of the interest to pay afresh the price of the land in question. If the lease agreement permitted the creation and enforcement of the mortgage, it also logically followed that upon enforcement of the mortgage and sale of the mortgaged assets, the auction purchaser would step into the shoes of the original mortgagor and was subject to the same terms and conditions of the lease to which the original lessee/mortgagor was subject. Since the original lessee /mortgagor was not obliged in terms of the lease deed to pay the price of the land over again such an obligation could not be enforced against the petitioner company which stepped into the shoes of the original lessee. 5. Learned counsel for the BIADA has contested these petitions mainly on the following grounds: Firstly, it is submitted that the facts in LPA No. 621 of 2018 and the present writ petitions are distinguishable, as in the formal case, RIADA has expressed permission to mortgage the lease property but here in the present cases no such permission was granted by the BIADA to the petitioners to mortgage the property to the financial institution. Secondly, the point it is that the original lessees were leased out the 3 industrial plots for running in particular industries and thereafter the present petitioners have stepped up and new industrial units without any permission from the BIADA which is in violation of the lease deed for which the original lessees were granted lease. 6. The facts of the case lie in a very narrow compass. It is not disputed that the petitioners are the auction purchasers of the industrial plots and the only question for consideration before this Court is whether they are required to make payment of due 100% of current value of the assets as conditional substituted of their names in place of original lessee? 7. The instant question to be answered in the present writ has been answered in L.P.A. No. 621 of 2018, as discussed above and relied upon by the Petitioner, that such a change cannot be levied. On the point of consent of BIADA for sub-lease, there is specific term in the agreement of Clause 6.1 that in case of small-scale industries, there was no requirement of seeking consent of BIADA for mortgaging the industrial plots to any financial institution for raising loan for the purpose for which the land was allotted. Auction sale of the property was only a natural corollary to the mortgage of the plot. In any case the industrial plots were mortgaged by the original lessees for raising loan from the State Finance Corporation. This is not a case of transfer of lease hold area by the original lessees, but that where the petitioner by purchasing the property in the auction sale stepped into the shoes of the original lessees. Therefore, the very plea of charging transfer fees as per Jharkhand Industrial Policy 2012 is unfounded. It is not in dispute that period of original lease for 99 years has not expired. Under the aforesaid facts and circumstance of the case and for the reasons discussed above this Court is of the view that the petitioners cannot be saddled by any further liability save and except that applied to the original lessees beyond the terms and conditions of the original lease agreement. BIADA (R1-3) is liable to transfer the lease in the name of the auction purchasers. No further dues other than that stood against the original lessees as on the date of auction can be raised against the Petitioners by BIADA as a condition for transfer of the lease hold in favour of the Petitioners. The terms and conditions of the lease agreement with the original lessees shall apply mutatis mutandis to the present petitioners. Writ Petitions are accordingly allowed. AKT (Gautam Kumar Choudhary, J.)