D.N. Patel, J. - (1.) L.P.A. No. 487 of 2012 has been preferred by the Original Petitioner in W.P.(C) No.1145 of 2011 whereas, L.P.A. No. 43 of 2013 has been preferred by the original petitioner in W.P.(C) No. 1408 of 2011, being aggrieved and feeling dissatisfied by the judgments and orders passed by the learned Single Judge in the respective writ petitions, both dated 14th August, 2012.
(2.) Factual Matrix: * The land in question is narrated as Plot No. M-2,N.S.-I, Phase III, admeasuring 5 Acres, situated in Adityapur Industrial Area near the city of Jamshedpur. * The aforesaid area is being owned, managed and controlled by Adityapur Industrial Area Development Authority (Hereinafter to be referred to as 'the AIADA' for the sake of brevity). * The plotting of this area was done by the AIADA for allotment of the lands to the Industrial units, for manufacturing purposes. * The aforesaid plot was initially allotted to M/s Baynee Engineering Ltd. in the year 1996. Thus, lessor- the AIADA allotted the plot in question to M/s Baynee Engineering Ltd.- lessee, upon payment of certain rent and charges annually. * For any reason, whatsoever, M/s Baynee Engineering Ltd. became a defaulter and hence, allotment of the plot was cancelled by the AIADA and it was allotted afresh to this appellant upon payment of the charges fixed by the AIADA, which, in total, comes to Rs. 29,82,830/-. Necessarily or unnecessarily, it was demanded by the AIADA that the defaulted amount of earlier allottee (towards arrears of rent) of Rs.5,47,568/-, should be paid by the new allottee, viz. this appellant. * Thus, the allotment money of Rs. 29,82,830/- as well as defaulted amount towards arrears of rent of Rs. 5,47,568/- was deposited by this appellant before the lessor the AIADA on 29th September, 2010. * Upon deposition of the aforesaid amount and on being fully satisfied that all the formalities were completed by this appellant, lessorthe AIADA allotted the plot in favour of this appellant on 30th September, 2010. * Thus, new lessor and lessee are the AIADA and this appellant, respectively, on and from 30th September, 2010 onwards. * It further appears that defaulter- M/s Baynee Engineering Ltd. had also created charge upon the property in question, which is the plot as stated herein above, as sizable amount of loan was taken from a Bank. * The loan was not repaid by M/s Baynee Engineering Ltd. to the Bank and, therefore, creditor Bank filed an application before the Debt Recovery Tribunal No.I, Kolkata, which was numbered as Case No. O.A. No. 81 of 2002. * The Debt Recovery Tribunal Kolkata, in the aforesaid matter, auctioned the landed property, as stated hererinabove, on 7th April, 2005 and auction purchaser, viz. M/s Model Heavy Fabricators Pvt. Ltd. has purchased the aforesaid land of which the AIADA is the lessor, but, the AIADA was never joined as a party respondent in Case No.O.A. No.81 of 2002 before the Debt Recovery Tribunal No.I, Kolkata. This has given birth to several litigations. * The Debt Recovery Tribunal No.I, Kolkata ought to have joined lessor-the AIADA as a party respondent, but, that was not done and the plot was auctioned by Debt Recovery Tribunal in absence of lessor-the AIADA and the auction purchaser was M/s Model Heavy Fabricators Pvt. Ltd. * M/s Model Heavy Fabricators Pvt. Ltd. had no intention to manufacture anything and therefore, on its own, this auction purchaser assigned the aforesaid plot to Respondent No.5 of L.P.A. No. 487 of 2012, viz. M/s Santhal Multicast Pvt. Ltd.(Hereinafter to be referred to as "Respondent No.5"), on 2nd January, 2006. Thus, Debt Recovery Tribunal No.I, Kolkata has passed an order of auction without joining the lessor the AIADA as party respondent. This is mistake number one and mistake number two is that auction purchaser has assigned the plot to Respondent No.5 without permission of the lessor-the AIADA. * As stated hereinabove, lessor- the AIADA had already cancelled the earlier allotment of the plot in question, which was in favour of M/s Baynee Engineering Ltd. and there was re-allotment of plot in favour of this appellant. Now, prima facie, there was no hindrance for the appellant to start manufacturing process in the plot allotted by the AIADA, but, it was Respondent No. 5, who created the difficulty. * Against the order of cancellation of the allotment by the lessor- the AIADA of the industrial land to M/s Banyee Engineering Ltd., present assignee (Respondent No.5) of auction purchaser-M/s Model Heavy Fabricators Pvt. Ltd.approached the Secretary, Department of Industries, State of Jharkhand. * Secretary, Department of Industries, State of Jharkhand dismissed the appeal (Appeal No. 19 of 2010) preferred by Respondent No.5, vide order dated 7th February, 2011, mainly on the ground that Respondent No.5 has no locus standi because it is an assignee of the auction purchaser, i.e. M/s Model Heavy Fabricators Pvt. Ltd. and also on the ground that if at all there is any aggrieved party, it is M/s Baynee Engineering Ltd. and none else. Also there was another ground for dismissing the appeal preferred by Respondent No.5 and that was limitation. * It appears that some persons are over cautious. They have a tendency to look at the serious side of the matter, which is never in existence. This appellant was of such type of personality. Unnecessarily, this appellant preferred an application (Intervention application) before the Secretary, Department of Industries, State of Jharkhand in the appeal preferred by Respondent No. 5. It is from this stage that the difficulty started for this appellant. * Secretary, Department of Industries, State of Jharkhand, ordered for reconsideration of the allotment of the land to this appellant. In fact, it was nobody's case that the allotment of the land in favour of this appellant is illegal. * Secretary, Department of Industries, State of Jharkhand, has made certain observations and directed lessor- the AIADA to reconsider the allotment of the land in favour of this appellant because Respondent No.5 (who was appellant before the Secretary, Department of Industries, State of Jharkhand) had offered Rs. 50,00,000/-(Rupees Fifty thousand only) to the AIADA, whereas this appellant- Sardul Auto Works Pvt. Ltd was ordered to pay the AIADA Rs.29,82,832/- +Rs. 5,47,568/-, which was already paid by this appellant. * Secretary, Department of Industries, State of Jharkhand, passed an order on 7th February, 2011, in which there was some observation prejudicial to the interest of the appellant and therefore, writ petition was preferred by this appellant being W.P.(C) No. 1145 of 2011, which was dismissed by the learned Single Judge vide judgment and order dated 14th August, 2012 and hence, original petitioner has preferred the letters Patent Appeal. * Similarly, being aggrieved and feeling dissatisfied by order dated 7th February, 2011 of the Secretary, Department of Industries, State of Jharkhand, Respondent No.5 filed a writ petition being W.P.(C) No.1408 of 2011, which was also dismissed by the learned Single Judge vide order dated 14th August, 2012 with a direction to the AIADA to consider allotment of the land in accordance with law. Against this order, Respondent No. 5 has not filed any Letters Patent Appeal because they have nothing much to lose. * In W.P.(C) No. 1408 of 2011, which was preferred by Respondent No. 5 and which was also disposed of by the learned Single Judge vide judgment and order dated 14th August, 2012, this appellant was a party respondent and hence this appellant has also preferred another Letters Patent Appeal, being L.P.A. No. 43 of 2013 challenging the order passed by the learned Single Judge vide judgment dated 14th August, 2012.
(3.) Arguments canvassed by the counsel for the appellant: * Counsel appearing for the appellant submitted that this appellant is a genuine applicant before the AIADA for allotment of the plots, as stated hereinabove, for expansion of its manufacturing activities. This appellant already had one plot upon which industrial activities were going on for some years and for expansion of industrial activities, an application was preferred by the appellant before the AIADA to acquire another plot. The AIADA allotted the plot in question upon payment of an amount at Rs. 29,82,830/- + Rs.5,47,568/- to the appellant. This amount was paid on 29th September, 2010 and the plot in question was allotted to this appellant on 30th September, 2010. * Thus, the AIADA is a lessor and this appellant is a lessee of the plot in question. This allotment was made for 30 years, by way of lease, upon certain conditions. * It is submitted by the counsel for the appellant that there is no default made by the appellant, whatsoever. It is submitted by the counsel for the appellant that it is known to everybody that the AIADA is managing the allotment of the plots and if there is any defaulter, viz. if anyone is not paying the legally payable dues to the AIADA, it is cancelling the allotment. This phenomenon is not unknown in commercial world. Cancellation of allotment is a regular and routine phenomenon in cases of default. Earlier, this plot was allotted to M/s Baynee Engineering Ltd. on 14th September, 1996. Thereafter, M/s Baynee Engineering Ltd. became a defaulter and therefore, said allotment was cancelled and the very same plot was allotted to this appellant, as stated herein above, on 30th September, 2010. * It is submitted by counsel for the appellant that M/s Baynee Engineering Ltd. was not only a defaulter of the AIADA, but, it was also a defaulter of Bank/ Banks and therefore, one of the Banks filed Case No. O.A. No.81 of 2002 before the Debt Recovery Tribunal No.I, Kolkata. In that proceeding, lessor- the AIADA was not joined as a party respondent and hurriedly, an auction was held on 7th April, 2005 and M/s Model Heavy Fabricators Pvt. Ltd. purchased the plot in question without there being any consent of the lessor viz. the AIADA. * M/s Model Heavy Fabricators Pvt. Ltd. had no intention to carry out any manufacturing activity at all on the plot in question and therefore, M/s Model Heavy Fabricators Pvt. Ltd. has assigned the plot in question to Respondent No.5 on 2nd January, 2006. * It is submitted by the counsel for the appellant that this appellant is a lessee of the AIADA and in fact, Debt Recovery Tribunal No.I at Kolkata could not have given the plot to M/s Model Heavy Fabricators Pvt. Ltd. without there being consent from the lessor-the AIADA and without hearing the lessor. Similarly, M/s Model Heavy Fabricators Pvt. Ltd. cannot assign the plot to Respondent No. 5 without permission of lessor the AIADA. Thus, it is submitted by the counsel for the appellant that there are errors and overlapping errors. * It is submitted by the counsel appearing for the appellant that Respondent No.5, though, was never allotted the plot in question by lessor- the AIADA, challenged the action of this lessor-the AIADA of cancellation of allotment of the plot of the defaulter, viz. M/s Baynee Engineering Ltd. before the Secretary, Department of Industries, State of Jharkhand, in Appeal No.19/2010, mainly on the ground that for the plot in question, it (Respondent No.5) is ready to pay Rs.50,00,000/- (Rupees Fifty lacs), whereas this appellant (in this Letters Patent Appeal) was given the plot by the AIADA at a loss upon payment of Rs. 29,82,830/-. The Secretary, Department of Industries, State of Jharkhand dismissed the appeal preferred by Respondent No.5 vide order dated 7th February, 2011 (annexure 10 to the memo of L.P.A. No. 487 of 2012). * It is submitted by the counsel appearing for the appellant that this over cautious appellant preferred an application (Intervention Application) before the Secretary, Department of Industries, State of Jharkhand in the Appeal, preferred by Respondent No.5. This was not necessary at all, because this appellant was allotted the plot in question by the AIADA on 30th September, 2010. Secretary, Department of Industries, State of Jharkhand has added one more sentence in the order at Annexure 10 directing the AIADA to consider re-allotment of the plot in question looking to the price offered by Respondent No.5. * It is submitted by counsel for the appellant that this observation has been made by the said Secretary without power, jurisdiction and authority. * It is submitted by the counsel for the appellant that the plot in question is already allotted to this appellant on 30th September, 2010 as per the price fixed by the AIADA. Price fixed by the AIADA was common for all. No special price or concessional price was fixed by the AIADA for this appellant. After allotment was made by the AIADA to the appellant, even if there is any higher offer made by Respondent No.5, there cannot be any direction to the AIADA to re-allot the plot in question, otherwise, there will be no finality of any lease agreement because anybody can come and make a higher offer. This aspect of the matter has not been properly appreciated by the Secretary, Department of Industries, State of Jharkhand while deciding Appeal No. 19/2010 vide order dated 7th February, 2011 and by the learned Single Judge while deciding W.P.(C) No. 1145 of 2011 as well as W.P.(C) No. 1408 of 2011 vide two different judgment and order, both dated 14th August, 2012. * It is submitted by the counsel appearing for the appellant that neither the Secretary, Department of Industries, State of Jharkhand nor the learned Single Judge pointed out any illegality in the allotment of the plot in question to this appellant by the AIADA. At the relevant time the price prevailing for the neighbouring plot was exactly matching with the price paid to the AIADA by this appellant looking to the affidavit filed by Respondent No.s 3 and 4, dated 5th March,2017, especially paragraph No. 6 onwards to be read with Annexures B and B/1 * It is submitted by the counsel appearing for the appellant that the payment made by this Appellant to the AIADA was at the rate prevailing in Phase III of the Adityapur Industrial Area and was never a concessional one. Never any concession was given by the AIADA to this appellant. This aspect of the matter has been lost sight of by both the Secretary, Department of Industries, State of Jharkhand and the learned Single Judge and hence, order dated 7th February, 2011, passed by the Secretary, Department of Industries, State of Jharkhand as well as the orders, dated 14th August, 2012, passed by the learned Single Judge in W.P.(C) No. 1145 of 2011 as well as W.P.(C) No. 1408 of 2011 deserve to be quashed and set aside so far as they affect the present appellant. * It is also submitted by the counsel for the appellant that M/s Model Heavy Fabricators Pvt. Ltd. could not have been given the plot by the Debt Recovery Tribunal No.I, Kolkata in Case No. O.A. No.81 of 2002 without hearing lessor- the AIADA. This aspect of the matter was also not properly appreciated by the learned Secretary, Department of Industries, State of Jharkhand while deciding Appeal No. 19/2010 vide order dated 7th February, 2011 and by the learned Single Judge while deciding W.P.(C) No. 1145 of 2011 as well as W.P.(C) No. 1408 of 2011 vide two different judgment and order, both dated 14th August, 2012. * It is submitted by the counsel for the appellant that M/s Model Heavy Fabricators Pvt. Ltd. had no intention at all to carry out any industrial activity in the plot in question at Adityapur Industrial Area. Nobody can keep an industrial plot without carrying on industrial activities on the same. * M/s Model Heavy Fabricators Pvt. Ltd. had unilaterally assigned the industrial plot to Respondent No. 5 on its own on 2nd January, 2006. * It is further submitted by the counsel for the appellant that M/s Model Heavy Fabricators Pvt. Ltd. can neither be allotted the industrial plot without permission of lessor-the AIADA nor Respondent No.5 can have any interest in the aforesaid industrial plot, without there being any allotment by lessor-the AIADA. This aspect of the matter has also been lost sight of by the Secretary, Department of Industries, State of Jharkhand as well as the learned Single Judge and hence also order dated 7th February, 2011, passed by the Secretary, Department of Industries, State of Jharkhand as well as the orders, dated 14th August, 2012, passed by the learned Single Judge in W.P.(C) No. 1145 of 2011 as well as W.P.(C) No. 1408 of 2011 deserve to be quashed and set aside, so far as they affect the present appellant. * It is submitted by the counsel for the appellant that though this appellant has already paid a sizable amount of Rs. 29,82,830/- + Rs.5,47,568/- as on 29th September, 2010, it is not in possession of the plot in question and therefore, immediately the possession of the plot should be given by Respondent No. 5 to this appellant. ;