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M/s. Chirakkal Brothers Rep. by its Proprietor N.C. Syed Ali Vs. The Secretary to Govt. Small Industries Dept. Secretariat Chennai and Others - Court Judgment

LegalCrystal Citation
CourtChennai High Court
Decided On
Case NumberW.P.No. 24564 of 2006 & M.P.No. 1 of 2006 & M.P.No. 1 of 2011
Judge
AppellantM/s. Chirakkal Brothers Rep. by its Proprietor N.C. Syed Ali
RespondentThe Secretary to Govt. Small Industries Dept. Secretariat Chennai and Others
Excerpt:
(writ petition filed under article 226 of the constitution of india praying for issuance of a writ of certiorarified mandamus, calling for the records of the proceedings of the 2nd respondent in rc.no.7726/r5/2003 dated 22.06.2006 and quash the same and consequently direct the respondents to convey the plot concerned and act on the basis of order of allotment dated 05.04.1994.) the prayer in the writ petition is for a writ of certiorarified mandamus, calling for the records of the proceedings of the 2nd respondent in rc.no.7726/r5/2003 dated 22.06.2006 and quash the same and consequently direct the respondents to convey the plot concerned and act on the basis of order of allotment dated 05.04.1994. 2.1. the short facts leading to the filing of the present writ petition is as follows: the.....
Judgment:

(Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of certiorarified mandamus, calling for the records of the proceedings of the 2nd respondent in Rc.No.7726/R5/2003 dated 22.06.2006 and quash the same and consequently direct the respondents to convey the Plot concerned and act on the basis of order of allotment dated 05.04.1994.)

The prayer in the writ petition is for a writ of certiorarified mandamus, calling for the records of the proceedings of the 2nd respondent in Rc.No.7726/R5/2003 dated 22.06.2006 and quash the same and consequently direct the respondents to convey the Plot concerned and act on the basis of order of allotment dated 05.04.1994.

2.1. The short facts leading to the filing of the present writ petition is as follows:

The petitioner is a proprietary concern which is involved in the manufacturing of sheet metal fabrication for Automobiles, tractors and allied industries and also heavy structural fabrication and other automobile components. The petitioner unit is being run at Ambattur Industrial Estate, Chennai and the existing unit was not adequate for improving business for expanding. Therefore, the petitioner desired to get one developed plot at SIDCO Industrial Estate, Ambattur. Accordingly, the petitioner had applied to the second respondent corporation for allotment of an industrial plot by application dated 25.3.1994.

2.2. Considering the said application made by the petitioner, the second respondent issued an order of allotment on 05.04.1994 by which a plot measuring about 7200 sq. ft in the Industrial Estate, Chennai-58 was allotted to the petitioner. The cost of the said land was fixed at Rs.1,89,175/- and also a sum of Rs.9,460/- was fixed as services charge. Therefore, all together, a total amount for the land cost including service charge was fixed at Rs.1,98,635/- and the said amount was directed to be paid on or before 30.05.1994. As per the conditions attached with the allotment order, the sale deed will be executed for the land in the name of the petitioner on the petitioner commencing the production in the land. A sketch showing the plot allotted to the petitioner also was enclosed. On the very same date of allotment, i.e, 05.4.1994, the petitioner has paid Rs.1000/- and subsequently, the petitioner has paid the entire amount by way of two payments one is for Rs.1,09,460/- on 20.5.1994 and another is for Rs.89,175/- on 20.4.1994. Therefore, the entire cost including the service charges have been paid by the petitioner on 20.5.1994 itself.

2.3. Thereafter, the second respondent issued a communication on 09.7.1994 recording that the petitioner has paid entire plot cost and service charge. In the said letter, the second respondent has further directed the petitioner to submit six copies of building plan, proof for financial tie up to implement the project and also provisional SSI Certificate. A similar request also was made again on 18.7.1994 by the second respondent. In response to the same, the petitioner on 15.12.1994, submitted six copies of building plan and the provisional SSI Certificate copy. In response to the financial tie up, it was stated by the petitioner in the said letter that the petitioner was having its own financial arrangement. Thereafter, on 04.04.1995, the petitioner had requested to the second respondent to release the sale deed immediately, as the work had to be commenced for starting the industrial unit as the existing unit of the petitioner was not sufficient to accommodate the workers and industrial activities of the petitioner. Thereafter, by communication dated 06.3.1996, the second respondent had directed the petitioner to resubmit the six copies of the building plan after duly signed by the petitioners. In response to the same, the petitioner on 14.3.1996, had re-submitted six copies of the building plan duly signed by the petitioners.

2.4. Inspite of these compliances having been made on the part of the petitioner, no execution of sale deed had taken place between the respondents and the petitioner and when every time, the petitioner approached the respondent office, it was informed that soon the sale deed would be effected. Since no action was forthcoming from the respondents even after some years, the petitioner sent a request dated 10.08.2001 to the Branch Manager, SIDCO, Industrial Estate, Ambattur and requested him to do the needful at the earliest.

2.5. Even after that, nothing had come from the respondents and the allotment though had been made and the full plot cost was received as early as in the year 1994, it was kept pending by the respondents without executing the same. While so, all of a sudden by the impugned communication dated 22.6.2006, the respondents had issued a show cause notice to the petitioner stating that the plot measuring 7200 sq.ft was allotted to the petitioner, subsequently, it was pointed out that the said land comes under the common purpose/public purpose/open space reservation areas which was required by SIDCO for the purpose for which it was reserved. The impugned order further says that the said allotment was in violation of the approved master plan and since have not been approved by the competent authority, the Board of SIDCO, i.e.,the second respondent have decided not to hand over such lands to the allottees even though the petitioner had made payment of the land cost. Only in that circumstances, the petitioner was requested to show cause as to why the allotment order issued against the petitioner should not be cancelled.

2.6. Though the said impugned order styled as show cause notice seeking to show cause from the petitioner as to why the allotment made against the petitioner shall not be cancelled, the wordings made in the show cause notice itself discloses that the Board of the SIDCO i.e., the second respondent have already decided not to hand over the land to the allotee i.e., the petitioner. Since the second respondent had already taken a decision not to allot the land to the petitioner, it cannot be construed as a show cause notice. Therefore, the petitioner challenging the same has come out with the present writ petition.

3. This Court by order dated 03.08.1996, granted an order of status quo to be maintained and the same is still continuing.

4. Heard both sides.

5. Mr.NaveenKumarMoorthy, the learned counsel for the petitioner would contend that the industrial plots were plotted out at Ambattur and other places by the second respondent for developing and encouraging the industries, especially, small scale industries. Applications were invited from industrialists for allotment of plots in the Ambattur Industrial Estate. Since the petitioner is one of the small scale industries and doing aforesaid business of manufacturing and it required a land for expansion of its manufacturing and other business had applied to the second respondent for allotment of plot. Having considered the application of the petitioner, allotment was made and the petitioner also paid the entire land cost including service charge as fixed by the second respondent and thereafter also, the second respondent directed the petitioner to produce certain documents such as six copies of building plan, SSI Certificate etc and when that also have been supplied long back, the second respondent did not execute the sale deed and when the petitioner had been requesting to the respondents to execute the sale deed after some years, it was not done and whenever, the petitioner approached the second and third respondents, it was informed that they have to get some permission from the higher authorities and only on receipt of the same, it would be done. While so, all of a sudden, the impugned order was passed.

6. The learned counsel for the petitioner would further contend that the impugned order has been given in the style of show cause notice. The issue, from the very wordings given in the impugned show cause notice itself would show, that, it had been decided already by the second respondent as it is stated that the Board of SIDCO have decided not to hand over the lands to the allottees. Therefore, it cannot be termed as show cause notice and therefore, the petitioner having no other option except to challenge the same has come out with the present writ petition.

7. The learned counsel for the petitioner would further contend that in respect of the same industrial estate in earlier occasions similar cancellation orders or show cause notices were issued cancelling the industrial plot allotted to the individuals on the ground that the lands were wrongly allotted to them as it comes or falls under the area allotted for public purpose or under the category of reserved area. When that orders were questioned, this Court in the order dated 16.6.2004 made in W.P.No.10140 of 1996 in S.Arunachalam Vs. The Tamil Nadu Small Industries Development Corporation and another, has decided the issue infavour of the allottees. This Court after having considered the rival claims made by the parties and the very same reasons of the second respondent which they adduced herein in the impugned order, ultimately, rejected the case of the respondents and allowed the writ petition. As against which when the second respondent preferred a writ appeal in W.A.No.3169 of 2004, the Division Bench of this Court by order dated 06.10.2004 in the matter of Tamil Nadu Small Industries Development Corporation Vs. S.Arunachalam had confirmed the order of the learned single Judge by dismissing the writ petition. Subsequently, also, yet another order was passed in respect of another plot allotted by the respondents in W.P.No.5208 of 2006 by order dated 04.7.2006 in A.C.Chokkanathan Vs.Secretary to Government and others.

8. Therefore, the learned counsel for the petitioner would submit that the very reasons cited by the second respondent in the present impugned order have already been tested and decided before this Court and it was found against the second respondent and in favour of the allottees. Ultimately, the respective writ petitions were allowed and in one case when the second respondent preferred an inter court appeal to a division Bench of this Court, the order of this Court was confirmed by the Division Bench. When that being so, the issue raised in this writ petition is covered by the decisions of the above said Judgments. Moreover, the one and only reason cited by the respondents would not stand in the legal scrutiny as the petitioner's plot namely, Plot No.126 is not part and parcel of any area ear marked for public purpose or under the category of reserved area. When that being the position, the reason cited by the second respondent in the impugned order, is totally unsustainable. Hence, the impugned order is liable to be quashed.

8. On the other hand, Mr.S.Yashwanth, the learned Standing Counsel appearing for the second and third respondents would contend that no doubt, the allotment was made to and in favour of the petitioner in respect of industrial plot No.126 at Ambattur Industrial Estate for small scale industries by the order of the second respondent dated 05.4.1994. It is also not in dispute that the petitioner in response to the allotment order had paid the entire plot cost including service charge. Thereafter also, the request of submission of six copies of building plan, SSI Certificate etc., as sought for from the petitioner had been complied with. However, subsequently, it was pointed out to the second respondent Board that some of the plots in the industrial estate had been mistakenly allotted to the individual allottees and those plots are actually coming within the common area the Board must allot them for that industrial estate. Since these plots are coming under the public area reserved for public purpose, wrong allotment made to those allottees have been reconsidered and therefore, before taking any decision for cancellation of allotment, show cause notice were issued not only to the petitioner but also to some other persons in whose name, the plots were allotted which falls under the public purpose / reserved areas. Instead of giving reply to the show cause notice, the petitioner has rushed to this Court and obtained the order of status quo.

9. The learned standing counsel for the respondents would further contend that the second respondent also issued a circular memo dated 25.6.1996 wherein the respective Branch Officers of Industrial Estate, Ambattur and Guindy have been instructed that since common purpose lands (such as roads, parks, raw material yards, oxidation ponds, etc) have been allotted to entrepreneurs in various Industrial Estates, such allotment areas are to be kept in abeyance with immediate effect. They were also instructed not to take any further action in handing over the plots or in executing the sale deed until further orders. The said circular memo issued by the second respondent dated 25.6.1996 is in respect of such allotments not only to the petitioner but also to some other persons. Therefore, a follow up action is being taken by the second respondent to get permission from the Government in this regard. The learned standing counsel would further contend that the second respondent have also written a letter dated 05.06.2007 addressed to the Under Secretary to Government, Small Industries (SIC) Department stating that the land measuring 7200 sq.ft classified as common purpose under the category of Oxidation Pond was alloted to the petitioner, therefore, it was decided not to hand over such lands to the allottee and to cancel the allotment, even though he has made payments of the land cost. Thereafter, on legal advice, the second respondent decided to send show cause notice to such allottees including the petitioner, numbering 17 persons and it was informed to the Government that no decision had been taken on the said show cause notice issued. Therefore, the learned standing counsel would contend that though the plot was allotted to the petitioner and he has also paid the entire plot cost, the land was not handed over and sale deed was not executed for the reasons as has been mentioned above. Therefore, for the Board to take any decision either to cancel or allot or otherwise as per the law, the show cause notice issued by the second respondent should have been replied by the petitioner. Instead he has rushed to this Court by filing this writ petition. Therefore, the learned standing counsel appearing for the petitioner would submit that the prayer sought for in the writ petition is totally unsustainable and hence, he wants the writ petition to be dismissed.

10. This Court have considered the rival submissions made by the learned respective counsel as well as the documents produced before this Court for perusal.

11. It is an admitted fact that applications were invited from industrialists for allotment of plots in the Ambattur Industrial Estate for developing and encouraging the industries, especially, small scale industries. The petitioner is one such small scale industry. Therefore, he gave application on 25.3.1994 for getting the allotment of industrial plot. After considering the petitioner's application, the respondents made allotment order on 05.4.1994. In the said allotment order, certain conditions are imposed and conditions which are relevant for the present writ petition are extracted here under:

The allotment is subject to the following conditions:

a. It is your responsibility to obtain approval from the local authorities for the building plan.

b. SIDCO will supply water to the extent of 500 litres/per acre per day only subject to availability.

c. You will have to make your own arrangements for effluent treatment.

d. The present constitution of your unit is a proprietary concern with Thiru. N.C.Saidali, as the sole proprietor of the firm.

e. Plans for construction/additional construction in the premises should be submitted to SIDCO for approval and construction should be started only after the plans are approved by SIDCO and by the local authorities concerned.

f. The land is allotted to you for setting up industry for the manufacture of sheet metal components for automobiles. Any change in the line of manufacture requires prior approval in writing from SIDCO.

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7. A sale deed will be executed for the land in your name on your commencing production in the land. The sale deed will not be executed in the name of any other person or before commencing production.

12. Thereafter, entire land cost including service charge was paid by the petitioner on or before 30.05.1994. According to the allotment order, the cost should have been paid on or before 30.5.1994. Therefore, there can be no dispute with the allotment order made and the cost was paid in full within the time. Thereafter, pursuant to the directions issued by the second respondent by letters dated 09.7.1994 and 18.7.1994, the petitioner had submitted six copies of building plan and the SSI Certificate on 15.12.1994. In pursuance of further directions of the second respondent, dated 06.3.1996, the petitioner had also resubmitted six copies of the building plan duly signed by the petitioner. Thereafter, the petitioner had made a request on 10th August 2001. As per the documents produced by the learned standing counsel for the second respondent, the second respondent by circular memo dated 25.6.1996 has issued the following circular to its subordinates:

It is noticed that common purpose lands (such as roads, parks, raw material yards, oxidation ponds, etc.,) have been alloted to entrepreneurs in various Industrial Estates. All the Branch Managers, including the Project Officers of Industrial Estates, Ambattur and Guindy, are instructed that such allotment orders be kept in abeyance with immediate effect. They are instructed not to take any further action in either handing over the plots or in executing the sale deed until further orders.

The receipt of this Circular Memo should be acknowledged by return of post.

13. Thereafter, the second respondent issued the show cause notice, i.e, the order impugned herein on 22.6.2006 wherein in paragraph 3, it is stated as such, "In view of the above, Board of SIDCO have decided not to hand over such lands to the allottees, even though you have made payment of the land cost. Therefore, the second respondent Board have decided not to hand over the land and ultimately, to cancel the allotment and after taking such a decision at the Board, the present impugned order by way of show cause notice was issued. Therefore, it is a pre-determined decision which is being conveyed to the petitioner by way of show cause notice. Therefore, the learned counsel for the petitioner contended that though the impugned order is styled as show cause notice, it is actually the decision taken already by the second respondent not to allot the plot and to cancel the allotment. Therefore, the contention of the learned counsel for the petitioner that there is every justification for the petitioner to challenge the show cause notice instead of replying to the same, have substance and therefore, the same can be accepted. It was submitted by the learned standing counsel for the respondents that as per the legal advice show cause notice were given to number of persons atleast 17 persons including the petitioner in whose favour, lands were allotted which falls or comes within the area which are ear marked as public purpose area.

14. During the hearing, the learned standing counsel appearing for the respondents also produced the SIDCO Industrial Estate, Ambattur combined lay out plan (north and south phase) signed by Estate Manager, TANSIDCO Industrial Estate, Ambattur, Chennai-58. A perusal of the said master plan shows the plot allotted to the petitioner and nearby plots. The plot alloted to the petitioner is numbered by the respondents as plot No.126. Next to the petitioner's plot on the western side, plot 125 and 124 are located, on the southern side road is located, on the northern side, a vacant area denoting as collection well , is located, adjacent to that collection well area, plot No.123 is located. On the eastern and northern side, large extent of vacant land is there which is shown as oxidation pond and parking area . When this Court questioned the learned standing counsel for the respondents that whether this oxidation pond is located only here or anywhere in the industrial estate area, it was replied that, such oxidation ponds are located in more than one area. The very purpose of allotting the land for oxidation pond is for a collection of effluent treatment which according to the learned counsel for the petitioner, was made only in the year 1994 and at that time, the procedure of discharge of effluent treatment was different and subsequently, every industry will have its own effluent treatment plant. Therefore, the oxidation pond located in that area had not been put in use and the learned counsel for the petitioner would invite the attention of this Court at clause C para 2 of the allotment order which says that you will have to make your own arrangements for effluent treatment . In practical any of these area ear marked for oxidation pond only means as such, there is no oxidation pond available in that locality. Moreover, the plots which are very adjacent to the petitioner's plot i.e., No.124 and 125 which are also allotted have already been handed over to individual industries and this fact also has been accepted by the learned standing counsel for the respondents. The learned counsel for the petitioner would show that all the adjacent plots to the petitioner's plot have been allotted and permitted the industries to run their units in these plots. These factor is not disputed on the respondent side. Also photographs were produced to show that entire oxidation pond area is used as a car parking area. When this was questioned by this Court, the learned standing counsel appearing for the respondents has produced a permission letter dated 19.3.2009 issued by the second respondent whereby the Association of Industries called CAAIIUC at SIDCO Administrative Building, Chennai-600 058 had been given permission to utilise the entire common area ear marked for oxidation pond as car parking area where permission was also given for construction of toilet with an extent of 200 sq. ft. The said permission letter dated 19.3.2009 shows that only the oxidation pond area alone is used as parking area. The relevant portion of the letter is as follows:

The above proposal has been placed before the SIDCO Board in its 233rd Board meeting held on 5.3.2009, the Board approved the proposal to grant permission to CAAIIUC to develop parking lot in 8125 sq.mt. of common purpose land in south phase of Indl. Estate, Ambattur classified as oxidation pond at an estimated cost of Rs.5.00 lakhs, 60% of which would be borne by CAAIIUC and 40% by SIDCO / State Govt. subject to the condition that the area would not have any superstructures except urinal points and the area would be fenced with natural vegetation or with any other cheeper materials. The scheme cost over and above Rs.5.00 lakhs, if any, will be borne by CAAIIUC.

15. Therefore, it becomes crystal clear that now the plot allotted to the petitioner i.e., plot No.126 and the plots nearby to the petitioner's plot namely, plot Nos. 124 and 125 do not form part of the common area in the name of oxidation pond . As rightly pointed out by the learned counsel for the petitioner, the plots which were allotted to others namely, plot Nos. 124 and 125 had already been allotted to the industrialists and they are running their industries.

16. The plan shown by the respondents also clearly shows that the petitioner's Plot No.126 is not part and parcel of any area ear marked for the purpose of oxidation pond or any other public purpose. When that being the position, the only objection or reason cited by the respondents in the impugned order to state that the allotted land to the petitioner comes under the common purpose or for the purpose of reserved area which is required by the SIDCO for the purpose it has been reserved, has no basis. The further reason cited in the impugned order that the allotment was in violation of the master plan and the same has not been approved by the competent authority since the same falls on the area for specific purpose, is also either misleading statement or without any basis. Further, in the said letter dated 05.6.2007 written by the second respondent to the Under Secretary to Government, Small Industries Department, it has also been mentioned as follows:

However, as per the recent direction of the Government, all the common purpose cases /OSR allotments / Public Purpose allotments are to be placed before the SIDCO Board on case to case basis and the proposal will be sent to the Government.

17. Therefore, even according to the recent direction of the Government, this common purpose cases /OSR allotments / Public Purpose allotments are to be placed before the second respondent Board to take a decision on case by case basis and therefore, if at all any decision has to be taken in respect of the lands which are ear marked for common purpose or public purpose allotment, such decision shall be taken only in respect of the lands which are actually ear marked for public purpose. For instance, the oxidation pond area, ear marked for public purpose or other purpose now being reversed as parking area for which permission has already been given by the second respondent vide letter dated 19.3.2009 and this kind of utility can be permitted by authorities concerned after taking a due decision on case by case basis. Such a decision would no way affect the individual plots allotted to industries which are ear marked as plots. Even the petitioner's plot, viz., plot No.126 is an individual industrial plot and already ear marked as individual plot and not ear marked for public purpose. Therefore, all these reasons cited by the respondent would no way affect the petitioner's allotment. Hence, there could be no impediment for the respondents to proceed further in executing the sale deed in favour of the petitioner.

18. In this context as has been rightly pointed out by the learned counsel for the petitioner, the very same issue has already been decided by this Court in more than one decision. In W.P.No.10140 of 2006 dated 16.6.2004, this Court has decided the issue and held as follows:

4. The petitioner filed a rejoinder to the counter stating that the reasoning now adduced in the counter is not correct. The Oxidation pond is on the northern side of the land allotted to the petitioner. In between the land allotted to the petitioner and the oxidation pond, there exist a well formed thirty feet road. The western side plot of the land allotted to the petitioner was allotted to some third parties and they have put up a factory therein in the name of M/s.V.L. Shutters. On the immediate southern side of the subject plots, labour tenements are there. Hence, the reason stated in the impugned order could not be correct. Furthermore, the immediate adjoining plot on the western side of the oxidation pond was allotted to the third parties and buildings were constructed therein and one factory is functioning in the name of M/s. Chennai Foreging

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6. Heard the arguments of respective counsels and perused the materials on record. It is evident from the materials on record that the allotments were made in respect of the plots, which are just adjacent to the oxidation pond to third parties. The allotments made in favour of M/s.V.L.Shutters and M/s.Chennai Forgeing, which are very close to the area earmarked for oxidation pond, have also not been denied. If the stand of the respondents is correct, those plots would not have been allotted to third parties for the very same reason. Apart from that, except the averments in the counter, no material, what so ever is placed by the respondents to sustain their case.

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8. In view of the above reasoning, the writ petition is allowed and the order impugned in the writ petition is hereby set aside and the mandamus as prayed for ie., direction to the respondents to act on the basis of the order of allotment dated 16.3.1996 is issued. It is for the respondents to expedite any permission which the respondents sought for from the Government. But for that purpose, the petitioner's right to have the sale deed cannot be denied by the respondents. However, there is no order as to costs. The rule nisi is made absolute.

19. The said Judgment of this Court was appealed in W.A.No.3169 of 2004 and the Division Bench of this Court by order dated 06.10.2004 has upheld the said decision. Following the said decision, yet another order was passed by this Court on 04.07.2006 in W.P.No.5208 of 2006.

20. As against these Judgments of this Court, no further appeal have been filed and therefore, the issue raised in this writ petition have already been decided by this Court and hence, has reached finality. When that being the position, the reason given by the respondents that the allotment of plot to the petitioner is liable to be cancelled as it forms part of the oxidation pond or any other public purpose, cannot be countenanced. Absolutely, there is no basis for such reasoning.

21. In view of the aforesaid discussion, this Court is of the considered view that the impugned order is totally unsustainable and therefore, is liable to be quashed. Accordingly, it is quashed.

22. Resultantly, by following the decisions of this Court (cited supra), there shall be a direction to the respondents, especially the second respondent to comply with the allotment conditions pursuant to the order of allotment dated 05.04.1994 including the execution of sale deed to and in favour of the petitioner as per the said allotment order within a period of three months from the date of receipt of a copy of this order.

23. With the above directions, this writ petition is allowed. No costs. Consequently, connected miscellaneous petitions are closed.


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