The High Court · 2023
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Letters Patent Appellate Jurisdiction) L.P.A No. 265 of 2022 Bhaiya & Bhaiya, having its registered office at I/D-43/133(P), Bokaro Industrial Area, Bokaro Steel City, PO+PS-Bokaro Steel City, District- Bokaro through its proprietor Sanjay Kumar Sharma, aged about 34 years, s/o late Bhuwal Sharma, R/o Plot No.1-D-77, Saran Iron and Steel Industries, Bokaro Industrial Area, Balidih, PO+PS-Balidih, District-Bokaro ..… Petitioner/Appellant Versus 1. The Jharkhand Industrial Area Development Authority through its Managing Director, Office situated at JIADA Bhawan, Namkum, Ranchi, PO +PS-Namkum, District-Ranchi, Jharkhand 2. The Secretary, Department of Industries, Government of Jharkhand, having its office at Project Building, Dhurwa, PO+PS-Dhurwa, District- Ranchi, Jharkhand 3. The Regional Director, Jharkhand Industrial Area Develoopment Authority, Bokaro, Bokaro Region, Office sitated at BIADA Bhawan, PO+PS-Balidih, District-Bokaro, Jharkhand .........Respondents --------------
Legal Reasoning
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Appellant For JIADA : Mr. Brij Bihari Sinha, Advocate : Mr. C.A Bardhan, Advocate ---------------
Decision
O R D E R 9th August 2023 Bhaiya & Bhaiya (in short, “Firm”) which was allotted a piece of land ad-measuring about 20 decimals being aggrieved of inaction on the part of Jharkhand Industrial Area Development Authority (in short, “JIADA”) in not taking a decision on its representations approached the writ Court in W.P.(C) No.3063 of 2022 with the following prayers: “That through the instant writ application, the petitioner prays for issuance of appropriate writ(s), order(s), direction(s), in the nature of mandamus directing and commanding upon the respondents particularly the respondents no.1 and 2 to transfer the proprietorship of lessee Bhaiya & Bhaiya to M/s. S.K. Engineering works by changing the name and style of Bhaiya & Bhaiya to M/s. S.K. Engineering works on the basis of the prayer made in representation dated 12.08.2010 and its reminders dated 21.03.2012, 10.02.2017, 19.09.2019 and 10.02.2020 submitted by Bhaiya Pritam, proprietor of Bhaiya & Bhaiya and the present petitioner before the respondent authorities. And/Or For issuance of any other appropriate writ (s)/order(s)/direction for doing conscionable justice to the petitioner.” 2 L.P.A No.265 of 2022 2. By an order dated 13th April 2022, W.P(C) No.3063 of 2022 filed by the appellant seeking the aforesaid reliefs has been dismissed on the ground that the Firm did not utilize the land for industrial purposes and even after cancellation of revocation on 30th September 2000 no industrial activity had commenced. 3. The writ Court has held as under: “Considering the rival submissions of the parties and looking into the facts and circumstances of the case, it appears that for a long time, the petitioner- Bhaiya & Bhaiya Industry has not utilized the land for industrial purposes. Initially, the land, in question was cancelled which was subsequently revoked with certain conditions, but from the year 1990 and the revocation which took place on 30.09.2000, in such a long period, nothing has been done in this behalf, even no electrical connection nor there was an alternative supply of power. No industrial activities have been started. As such, this Court is not inclined to grant any relief to the petitioner. Accordingly, the instant Writ Petition stands dismissed.” 4. Regulation No.19 of JIADA Regulation, 2016 provides timelines for construction of Factory/Shed which reads as under: “i. The allottee shall start construction as per the approved plan within 6 (six) months, extendable to a maximum period of another six months, under extraordinary circumstances, with prior approval of the Managing Director from the date of approval of factory/shed or/and building plan of the allotted plot. In the event of failure on the part of allottee to do so, late action charges shall be recovered @ 1.00 per sq. ft. per month from the last date of extended period. ii. Jharkhand Industrial Area Development Authority shall organize annual inspection of all allotted plots to ensure its utilization. Detailed information compiled by the inspection team will be placed on the Website. The case of enterprises not utilizing the plot or inadequately utilizing the plot for the purpose, for which the allotment was made, Managing Director shall take action for cancellation of allotment order of land or penalty equal to land premium or forfeiture of amount deposited by the entrepreneur towards land premium and other charges. After allotment and taking over possession thereof if a fully functional is not set up by the allottee within the stipulated period (two years for micro and small enterprises and five years for other enterprises) the allotment of land shall be cancelled and possession taken by Jharkhand Industrial Area Development Authority.” 5. Regulation No.21 of JIADA Regulation, 2016 Clause (v) of which provides for execution of lease-deed and transfer of leasehold rights is extracted below: “(v) Vacant plot or units for which EM-II/PMT/SSI PMT/DOP has not been issued, shall not be considered for transfer. The allottee shall have to surrender the allotted plot to Authority under clause 25 of this regulation or Authority shall evict the allottee after following due process under this regulation.” 3 L.P.A No.265 of 2022 6. Mr. Brij Bihari Sinha, the learned counsel for the appellant submits that to encourage and provide support to the industrial activities in the State of Jharkhand there is a specific provision made in the Jharkhand Industrial Policy for transfer of a sick industrial unit to another proprietor who is able to run the industry. 7. Before the writ Court, the JIADA put forth a stand that the Firm which was allotted 20 decimals land appertaining to Plot No.1-D-77 on 19th September 1990 for production of rolling shutter, profiles channel, coil spring and washers could not commence production activity and its allotment was cancelled on 13th September 1999. Later on, the cancellation order was revoked on 30th September 2000 on certain terms and conditions as contained in Letter No.1410 and then came the request for change of constitution on 25th September 2003. The learned counsel for the appellant would invite our attention to the press release dated 1st June 2012 to submit that all necessary formalities for transfer of constitution of the Firm were completed but a final decision in the matter was not taken by the JIADA. The aforesaid notice in the press release dated 1st June 2012 was issued inviting objections from others within 10 days and this notice shall not confer any right in the proposed proprietor to seek a direction from the writ Court for change of constitution of the Firm. This is settled long back that a Mandamus shall lie only when the applicant has established his legal rights and a corresponding duty in the respondent which the respondent has failed to perform. In “Dr. Rai Shivendra Bahadur v. Governing Body of the Nalanda College, Bihar Sharif & Ors.” AIR 1962 SC 1210 the Hon'ble Supreme Court has held that “in order that mandamus may issue to compel the respondents to do something it must be shown that the statutes impose a legal duty and the appellant has a legal right under the statutes to enforce its performance”. 8. This is the specific case pleaded by the JIADA that in compliance of the letter dated 27th September 2019 the appellant Firm did not produce Permanent Registration Certificate/EM Part-2 or proof of date of actual production nor did it submit any proof as to Mr. Sanjay Kumar Sharma being the proprietor of the Firm and, as such, the representation made by him was not entertainable in terms of JIADA Regulation, 2016. 9. Having regard to the aforesaid indisputed facts, we do not find 4 L.P.A No.265 of 2022 any ground to interfere in the matter and, accordingly, L.P.A No.265 of 2022 is dismissed. (Shree Chandrashekhar, J.) (Anubha Rawat Choudhary, J.) sudhir