Anjani Kumar and Sudhir Agarwal, JJ. - (1.) -Heard learned counsel for the petitioner, Dr. A. K. Nigam learned Addditional Solicitor General appearing for respondent No. 1 assisted by Sri Anubhav Trivedi, learned standing counsel for respondents No. 2 and 3 and Sri Uma Kant, advocate appearing on behalf of respondent No. 4.
(2.) THE petitioner is aggrieved by the order dated 3.8.2006 (Annexure-28 to the writ petition) cancelling letter of allotment/letter of permission (for short 'L.O.A./L.O.P.') and dated 21.8.2006 (Annexure-27) declining to extend the validity of L.O.A./L.O.P. The facts in brief giving rise to the present dispute are that the petitioner, M/s. Microcomm India Limited, in order to set up an export oriented unit at N.O.I.D.A. Special Economic Zone (hereinafter referred to as 'S.E.Z.'), applied for L.O.A./L.O.P. to Development Commissioner, Government of India in the light of Government policy notified for export and import for the period 2002-2007 by creating S.E.Z. The Development Commissioner vide letter dated 28.7.2003 granted permission subject to certain conditions as contained in paragraphs 2 to 8 thereof which are reproduced as under : "2 The above permission is subject to the conditions stipulated in Annexure in addition to the following conditions : (i) The unit shall export its entire production, excluding rejects and sales in the domestic tariff area as per provisions of S.E.Z. scheme for a period of five years from the date of commencement of production. For this purpose the unit shall furnish the requisite legal undertaking as prescribed in the S.E.Z. scheme to the Development Commissioner, N.O.I.D.A. Special Economic Zone (N.S.E.Z.). Before signing the LUT it should have its own operational Web-site and permanent E-mail address. The unit would have the option to renew its S.E.Z. status or opt out of the scheme as per industrial policy in force at that time in relation to items of production. (ii) The unit would be required to achieve Net Foreign Exchange (N.F.E.) as prescribed in the S.E.Z. scheme for a period of five years from the commencement of production, failing which it would be liable for penal action. (iii) It is noted that you require imported Capital Goods valued at Rs. 131.88 Lakhs (Rupees one crore thirty one lakh eighty eight thousand only) for the proposed project. (iv) Import /local purchase of all items except those listed in prohibited list for import/export will be permitted. (v) Possession of allotted plot/S.D.F. will be taken within a period of three months of issue of approval letter and construction of the factory building/ implementation of project shall be started within next six months. (vi) It is noted that no fee/royalty is to be paid for the foreign technology agreement. (vii) Foreign Equity participation shall be as per R.B.I. Guidelines. (3) This letter of permission is valid for one year from its date of issue within which you should implement the project and commence production and would automatically lapse if an application for the extension of validity is not made before the end of the said period. Date of commencement of production shall be intimated to the Development Commissioner, N.S.E.Z., N.O.I.D.A. (4) The approval is based on the details furnished by you in your project application. (5) You shall be required to enter into a Legal Agreement in the prescribed form (Appendix 14-IF) with Development Commissioner, N.O.I.D.A. Special Economic Zone, N.O.I.D.A. for fulfilling the terms and conditions mentioned in the L.O.P. (6) You are requested to confirm acceptance of the above terms and conditions to the Development Commissioner, N.S.E.Z., N.O.I.D.A. (U.P.) within 45 days. (7) If you fail to comply with the conditions stipulated above, this letter of approval is liable for cancellation/revocation. (8) All future correspondence for amendments/changes in terms and conditions of the approval letter or for extension of its validity if required may be addressed to the Development Commissioner, N.O.I.D.A. Special Economic Zone, N.O.I.D.A. (U. P.)" Para 3 of the said letter thus made it clear that the said L.O.A./ L.O.P. granted was valid for one year from the date of issuance thereof. It is said that agreement (Annexure-5) was also executed by the petitioner on 19.11.2003 with the Union of India acting through Development Commissioner. The petitioner was allotted plots No. 129B and 129C in the aforesaid S.E.Z. for installation of his industrial unit and got possession thereof on 19.11.2003 (Annexure-8 to the writ petition). However, the petitioner could not commence his production and, in fact, could not even start construction of building within the validity period of L.O.A./L.O.P. and, therefore, sought extension thereof vide application dated 25.8.2004 followed by a reminder dated 15.9.2004 whereupon the said period was extended upto 27.7.2005 vide letter dated 21.9.2004. A copy thereof has been placed on record as Annexure-11 to the writ petition. In respect to plots allotted to him the petitioner also executed sub-lease agreement with Government of India through Development Commissioner on 15.10.2004 (Annexure-12 to the writ petition). Again the petitioner sought further extension of validity period of L.O.A./L.O.P. vide application dated 25.7.2005 which was allowed by the competent authority vide letter dated 29.7.2005 (Annexure-14) for a further period of six months, i.e., till 31.12.2005. Still nothing could progress and the petitioner vide letter dated 27.12.2005 sought extension of validity of L.O.A./L.O.P. for a further period of one year. It is said that neither approach roads were made by the respondents nor any electricity or other facilities were made available, on account whereof, the petitioner could not commence construction and production and for the same, it could not be victimized or made responsible. Ignoring the aforesaid deficiencies on the part of the respondents, the Assistant Commissioner issued a show cause notice dated 13.2.2006 (Annexure-16) directing the petitioner to show cause as to why L.O.A./L.O.P. dated 28.7.2003 be not cancelled. The said notice also mentions that the petitioner has failed to pay lease rent besides non-implementation of project within the stipulated period and, therefore, has violated the terms of L.O.A./L.O.P. The petitioner submitted reply vide letter dated 20.2.2006 (Annexure-17 to the writ petition) wherein he clarified that the work could not progress due to non-availability of basic infrastructure and facilities and, therefore, requested for extension of L.O.A./L.O.P. for a further period of six months vide letter dated 27.2.2006 (Annexure-18 to the writ petition). The petitioner gave the following programme for implementation of his project : "(a) Basic preparation like Building Plans etc. : Ready (b) Completion of first phase of Building : By 31.8.2006 (c) Design of Products and Production Drawings : Ready (d) Commence Production in temporary accom. : By 1.6.2006 (e) Full Production : By 1.10.2006"
(3.) THE said letter shows that a sum of Rs. 4,20,898.00 was outstanding towards the petitioner on account of lease charges etc which he had paid subsequently as stated in the aforesaid letter. THE authorities however, vide letter dated 9.3.2006 (Annexure-19 to the writ petition) granted extension to validity period of L.O.A./L.O.P. upto 7.4.2006 with clear stipulation that other terms and conditions would remain unchanged. THE petitioner could not complete the work and through his letter dated 10.8.2006 (Annexure-21 to the writ petition) informed that some construction has already been made and that he is likely to complete First Phase of his building by the end of February 2007 whereafter full level production will commence in March, 2007 and sought extension of validity period of L.O.A./L.O.P. accordingly. It is, however, not disputed that though the period of L.O.A./L.O.P. was not extended after 7th April, 2006, the petitioner applied for extension thereof only on 10.8.2006. In the meantime, by order dated 3.8.2006 the Assistant Development Commissioner cancelled L.O.A./L.O.P. dated 28.7.2003, and subsequently by order dated 21.8.2006 the petitioner was informed that his letter dated 10.8.2006 requesting for extension of time cannot be granted inasmuch as, Development Commissioner himself visited the spot on 17.8.2006 and found progress of work unsatisfactory and that not even 10% work was found complete. It is against these two orders, the petitioner has filed this writ petition contending that before passing the impugned order dated 3.8.2006 no opportunity was afforded to the petitioner and the impugned order is illegal and in violation of principles of natural justice.;