- (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 'LOA/LOP') and dated 21.8.2006 (Annexure 27) declining to extend the validity of LOA/LOP. 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 Noida Special Economic Zone (hereinafter referred to as 'SEZ'), applied for LOA/LOP to Development Commissioner, Government of India in the light of Government policy notified for export and import for the period 2002-2007 by creating SEZ. 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 SEZ 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 SEZ scheme to the Development Commissioner, Noida Special Economic Zone (NSEZ). 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 SEZ 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 (NFE) as prescribed in the SEZ 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/SDF 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 RBI 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, NSEZ, Noida. (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, Noida Spe­cial Economic Zone, Noida for fulfilling the terms and conditions mentioned in the LOP. (6) You are requested to confirm acceptance of the above terms and conditions to the Development Commissioner, NSEZ, Noida (UP.) 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, Noida Special Economic Zone, Noida (UP.)"
(3.) PARA 3 of the said letter thus made it clear that the said LOA/LOP 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. 129-B and 129-C in the aforesaid SEZ 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 LOA/LOP 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 LOA/LOP 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 LOA/LOP 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 LOA/LOP 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 LOA/LOR 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 LOA/LOP for a further period of six months vide letter dated 27.2.2006 (Annexure 18 to the writ petition). The petitioner gave the following programmer for implementation of his project: "(a) Basic preparation like Building Plans etc. : Ready (b) Completion of first phase of Building : 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 ;