SCA/11645/1994 of PETRO POLYOLS LTD & 1 Vs REGIONAL MANAGER & 3 on 14 December 1995

ORAL JUDGMENT

I have heard Mr R P Pathak, learned Advocate for thepetitioner-Petro Polyols Ltd. and Mr Y H Vyas, Advocate forrespondents No.1 & 2 - Gujarat Industrial Development Corporation(hereinafter referred to as 'GIDC') and Mr K S Nanavaty, Advocatefor respondent No.4 - Reliance Industries Ltd.

2. In this Special Civil Application, petitioner No.1- PetroPolyols Ltd. is a Public Limited Company and Petitioner No.2 Mr PS Sahni is the promotor, Chairman as well as shareholder ofpetitioner No.1. The second petitioner made an application to the

respondent No.2- GIDC for allotment of suitable land to thepetitioners for its industrial project namely; "Petro PolyolsProject". The second respondent - GIDC, by letter dated 4.3.1986allotted 1,61,800 sq.Mts. of land in survey No 148 and 148P atVillage Mora, Taluka Choryasi, District Surat. The possession ofthe land was handed over to the petitioner No.1 on 21.4.1986.Pending final fixation of price, the petitioner was asked to makepayment of Rs.38,894/and Rs.17,113/- as overhead - in totalRs.66,007/-. The petitioner deposited a sum of Rs.12,45,000/- ondifferent dates during the period 15.3.1986 to 2.11.1987. Theindustrial plot was allotted for the purpose of carrying industrialactivity within the time bound schedule. The say of the petitioneris that they could not put into operation the project for which theland was taken, due to non-availability of propylene as a result ofwhich, the petitioner commenced planning the second project i.e.petrochemicals for Oil and Gas Industry and some of its basicchemicals as raw materials. For this purpose, the petitionerentered into a technical collaboration agreement with DevaTechnology (UK) in association with ICI (UK). The petitioneraddressed letter in this regard to the GIDC on 22.8.1992. Thefurther development was informed by letter dated 17.10.1992.Another letter dated 5.8.1993 was addressed to the ManagingDirector, GIDC stating the difficulty in getting the propoylene andstated that it is likely to be obtained by 1996. The petitioneralso expressed that in the facts of the case, it is necessary forthem to replan the additional project namely; (i) Oil FieldChemical for Gas and Oil Industries and (ii) Pharmaceuticalintermediate. The petitioner also disclosed the latest status ofthis project as stated in the letter dated 1.6.1993 from Robert AHerndon, Attorney at Law of California addressed to the petitionerNo.2. There is another communication dated 24.9.993 informing theprogress of the matter. The further say of the second petitioneris that in October 1993, he left the country to explore and seekhelp from the Non-resident Indians and acquaintence forestablishing the project. However, when he returned Indai in May1994, he came to know that the land allotted to the petitioner hasbeen illegally allotted to some other Company in the month of April1994 or thereabout. Thus a letter dated 5.4.1994 was addressed tothe GIDC through Advocate calling upon to state whether the saidland has been allotted to some other Company. The saidcommunication was not replied by the respondent GIDC. On 6.7.1994,reiterating the same contents, another notice was given underAnnexure 'K' calling upon the respondent to verify the fact ofallotment of land, but the same was also not replied.

3. In this petition it is prayed that respondent No.4 bedirected to vacate the plot under reference forthwith so as tofacilitate the respondents No.1, 2 and 3 to restore the possessionon the same conditions on which it was allotted to the petitionersunder the letter of allotment dated 4.3.1986. In alternative, itis prayed that a direction be given to respondent-GIDC to refund the amount of Rs.12,45,000/-, plus the preliminary expensesincurred by the petitioners. The main ground of attack is thatrespondent No.4 is a very big Company having substantial politicalinfluence, and therefore, there is reasonable ground to believethat respondents No.1, 2 and 3 in collusion with respondent No.4,has taken such illegal and ultra vires action against thepetitioner. It is also stated that a mode is prescribed forvacating the premises allotted to an industry under the provisionsof Gujarat Industrial Development Act, 1962, and that there was noimpediment on the part of respondents No.1, 2 and 3 in followingthose procedures, and therefore, the act of respondents No.1,2 and3 allotting the land under reference to respondent No.4 isarbitrary, violative of principles of natural justice and is incollusion with respondent No.4.

4. The GIDC, in its reply, stated that the petitioner hasconveniently concealed the essential facts which have materialbearing on the controversy involved. It is stated that thepetitioner No.2 failed to utilise the plot in question allotted tohim for industrial purposes within the stipulated period and assuch a notice dated 20.5.1993 was issued to the petitioner callingupon him as to why the allotment should not be cancelled fornon-utilisation of the plot allotted to him. A panchnama of thesite was also prepared which shows that there was absolutely noindustrial activity on the plot under reference. As no reply wasfiled, the allotment was cancelled by letter dated 29.6.1993.Thereafter, the competent officer pointed out that under GujaratPublic Premises (Eviction of Unauthorised Occupants) Act, 1972 (forshort, the 'Act' of 1972) a show cause notice dated 27.7.1993 wasissued calling upon the petitioner as to why the proposed order ofeviction should not be made. Thereafter, the competent officerpassed order of eviction dated 18.8.1993 under section 5 of the Actof 1972. It is also stated that there is a remedy of appeal undersection 9 to the Court of District Judge under the Act of 1972,which the petitioner has not availed. It is further stated thatafter the order of the competent authority dated 18.8.1993, thepossession of the plot under reference has been taken on 27.9.1993.The rescind plot was offered to respondent No.4 on 12.10.1993 atthe rate of Rs.80/- per sq. meter a....

1,29,50,400/which was deposited under protest and as such thepossession was delivered on on 23.10.1993.

5. Mr B L Yadav, Constituted Attorney of respondent No.4 hasfiled an affidavit indicating the present status of Investment withreference to the plot in question as follows:

"The respondent No.4 has invested a large amount for developing the aforesaid land and making it suitable for construction. The Company has constructted its security office for the Petro Chemicals Complex on the aforesaid land. The entire Petro Chemical Complex comprising of numerous units manufacturing a range of Petro Chemical Products have been planned and designed and the sites

frozen keeping in mind the availability of the aforesaid plot of land. Varous units which form part of the Phase-I of the Petro Chemicals Complex have already been constructed at a cost of approximately Rs.2000/- crores. The construction work of Phase-II of the Petro Chemicals and Plastics Project of the respondent No.4 is substantially completed. The Phase-II consists of a Gas Cracker complex, Polyester Unit, PTA, Poly Propelene, Captive Power Plant 2, etc. and the committed investment for the aforesaid Phase is approximately Rs.6000 crores of which about 60% has already been invested. According to the site plan, the respondent No.4 has put up the material entry gate for all the units on the aforesaid land for all capital goods projects and also for construction material for Phase-II projects. The respondent No.4 has submitted the entire plan for approval of the Central Excise and other statutory authorities. The aforesaid land is p....

is proposed to construct administrative office for the entire complex on the aforesaid plot of land."

6. Mr P S Sahni has filed affidavit-in-rejoinder stating that the petitioner came to know about the eviction proceedings onlyfrom the affidavit filed by the respondents in November, 1994. Hewas told about this fact while he was in U.K., and therefore, underhis instructions, during the pendency of this writ petition, hisAdvocate Mr R D Pathak served a notice on the Advocate for therespondent Mr Kamal Trivedi, calling upon him to produce the copyof the final order dated 20.9.1993. He also sought inspection ofthe Panchnama and outward register of GIDC. Identical notice wasissued by the learned Advocate Mr R D Pathak on 17.1.1995 as well.A copy of both the notices has been placed at Annexures 'M' and 'N'respectively. It is stated that no reply to the said notices hasbeen given by the respondents. It is also stated that thepetitioner had sent number of letters to the respondent during theperiod from August 1993 to October, 1994, but none of them werereplied. The petitioner wants to draw an inference from this factthat in fact, if the order of cancellation of allotment and othereviction orders were passed, the same would have reflection in theletters of the respondents and they would have definitely replied.

7. At the outset, it is contended by the learned Advocates for the respondents that this Special Civil Application deserves tobe dismissed summarily firstly for the reason that the petitioneris guilty of suppressing the material fact; secondly, that thepetitioner has failed to avail statutory alternative remedy undersection 9 of the Act of 1972; and thirdly, the petition involvesdisputed questions of facts.

8. Mr R D Pathak, learned Advocate for the petitioner submitsthat in the present case, the malafides and arbitrariness is muchapparent on the face and as such in view of the law laid down bythe Apex Court in the case of KUMARI SHRILEKHAA VIDYARTHI v. STATEOF U.P. & ORS., reported in 1991 (1) SCC 212, this court must lookinto the facts of the case. He submits that the crux of the matteris whether various notices as claimed to have been issued by therespondent were in fact issued and served on the petitioner. Mr KS Nanavati, learned Advocate for respondent No.4 submits that eventhis question can be raised and examined before the appeal forumprovided under the Act of 1972.

9. Considering the facts of the case, it would be appropriateto examine the question as to whether the notices and other ordersreferred to above were served on the petitioners or not.

I. NOTICE dated 20.5.1993

The Regional Manager, GIDC, Surat, under letter dated20.5.1993 informed the petitioner No.2 Mr P S Sahni on the address- B 203, Greater Kailash Park - I, New Delhi, that they wererequired to get the plan approved from the competent authoritywithin six months and to complete the construction of the factorybuilding and to start the production within 3 years, as thepetitioner has failed to do so, the GIDC has been left with nooption but to rescind the allotment and to resume the possession ofthe land in question. However, before taking such decision, thepetitioner was called upon to give reply within 30 days from thedate of receipt of the letter. The petitioner says that thepetitioner No.2 did not receive the said letter dated 20.5.1993,Respondent-GIDC has produced certain material evidence in thisregard. There is an outward No.4760 on the letter dated 20.5.1993.A xerox copy of the envelope addressed to Mr P S Sahni at the Delhiaddress produced by the respondent also bears outward No. 4760.There is an endorsement of Postal authority on the said envelopethat "inspite of repeated visits, the addressee is not available".The postal acknowledgement also bears the outward register numberas 4760 dated 20.5.1993. It was returned without the signature ofthe addressee. The respondent-GIDC has produced copy of thepanchnama dated 21.5.1993. a perusal of which shows that thenotice was affixed on the plot under reference. On the basis ofthis material evidence, it is contended by the learned Advocate forthe respondent that the notice for cancellation of allotment couldnot be served on Mr Sahni petitioner No.2 as he was not availableon the address given by him, and therefore, in the facts of thecase, the servoce was effected by substituted service. On theenvelope, there is a seal of the postal department. On the back ofthe envelope, the different dates of visits appears to have beengiven by the postman. The dates given are 1,6,1993, 3,6,1993,4.,6.93, 5.6.93, 7.6.93, 14.6.93 and there is also a postal seal of11.6.1993, This fact conclusively indicates that the notice dated 20.5.1993 was received at Delhi and the postman visited the placeof address of Mr PS Sahni, but as he was not available, the samecould not be served. It is also evident from the Panchnama thatcopy of the notice was affixed on the plot. Thus in my view, theservice of notice dated 20.5.1993 was effected by substitutedservice.

II. NOTICE DATED 29.6.1993

The petitioner says that he has not received the order ofcancellation dated 29.6.1993. The learned Advocate for therespondents has invited my attention to outward number as appearsfrom the said letter being 5689. The postal acknowledgement bearsthe same outward number which has been given on the letter dated29.6.1993 i.e. 5689. The respondent has also produced xerox copyof an outward register regularly maintained by the GIDC. There isan entry bearing entry Nu. 5689 addressed to Mr P S Sahni and thesubject has also been given therein. Another documentary evidenceis a copy of the register of the postal department in which theregistered letters sent are being entered. It appears that in thesaid register, on the posting of 30.6.1993, there is an entry atsr.no.5 i.e. number 1531 in the name of Mr P S Sahni, New Delhibearing outward Number 5689. Considering the postal registermaintained by the postal department in the regular course and so asthe outward register maintained by the respondent-GIDC regularly,there is no reason to disbelieve the entries therein. In view ofthis, there is ample material to show that the order ofcancellation dated 29.6.1993 was despatched to the petitioner No.2.The respondent has also produced panchnama showing that the noticewas affixed on the vacant plot. In view of this, in my view, thereis sufficient proof to believe that the service of notice dated29.6.1993 was effected on the respondent by substituted service.

III. NOTICE dated 27.7.1993

The competent officer, under the Act of 1972, issued anotice under section 4 of the Act of 1972 to the petitioner No.2 athis Delhi address. There is panchnama served by affixing thenotice on the plot under reference. This panchnama bears outwardnumber 6781. There is a postal acknowledgement on which also thesame outward number 6781 appears. There is also a postal seal onthe postal acknowledgement. In the outward register of the GIDC,the entry of the letter addressed to Mr P S Sahni as notice undersection 4 finds the number as 6781. Similar entry is alsoavailable in the register of the Postal department. Thus,considering the postal evidence and of the panchnama, there issufficient service by substitution.

By order dated 18.8.1993 the competent officer passedorder of eviction under the provisions of section 5 of the Act of1972. The petitioner has denied receipt of this order as well.The notice dated 18.8.93 bears outward No.9391, and the sameoutward number appears on postal acknowledgement, having the postalseal thereon. There is an entry in the postal register as wellbearing the same outward number i.e. 9391. There is alsopanchnama, showing the fact that the copies of the order affixed onthe plot. Thus the fact that the outward number arising from aregularly maintained register, find place on the copies of theorder dated 18.8.93, which tallies with the outward number on thepostal acknowledgement, bearing the postal receipt and further thesame outward number finds place in regularly maintained register ofthe postal department coupled with the fact that there is iapanchnama, showing that the copy of the order was affixed on theplot, leads to the only conclusion that the copy of the order wassent by the GIDC on the address of the petitioner as given by him.If the petitioners have not given the correct address, they mustthank themselves. Thus, in the facts of the case, there issufficient service by substitution.

V. LETTER dated 20.9.93.

V. LETTER dated 20.9.93.

In view of the order passed under section 5, bycommunication dated 20.9.1993, the petitioner was informed that thepossession of the plot under reference shall be taken on 27.9.1993at 11.00 hrs. This order bears outward number 8502. The samenumber is found on the postal acknowledgement which also bears thepostal seal and is addressed to Mr P S Sahni, New Delhi. There issome controversy with respect to the signature of the addressee.The respondent-GIDC says that it was received by some of the familymembers of Mr Sahni and/or in any case, by persons in his office.Affidavit of Mr Kaushik has been filed. He has stated that he wasthe Manager of petitioner No.1, and the petitioner No.2 who is hisclose friend. After he left the job of petitioner No.1, he waslooking after the correspondence and papers of petitioner No.1. Hehas further that stated his attention was being invited to thesignature of the addressee shown at page 23 on the postalacknowledgement. He says that the signature is not of any employeeor any person or Director including the petitioner No.2 ofpetitioner No.1. He has further stated that the said signature isalso not of any relatives of petitioner No.2. Mr Kaushik has notdisclosed as to during which period he was Manager of petitionerNo.1. In absence of this fact, it is not possible for him to saythat he is acquainted with the signature of all the employees ofpetitioner No.1 in Delhi during September 1993. In view of thisfact, the affidavit of Mr Kaushik is of no consequence. The respondent has also produced its outward register, which bearsoutward number 8502. The same number has been shown on thecommunication dated 20.9.1993. This also finds place in the postalregister as well. In view of this, in my view, this order was alsoduly served on the petitioner No.2 by substituted service.

On 13.12.1995, I directed the GIDC to produce the original record in this regard. Today I have perused the original recordsand checked every notice/communication referred to above. I havealso checked the notices as well as panchnamas. On perusal, itappears that the file is regularly maintained, and there appears tobe no chance of manipulation as alleged. There is no reason toimpute motives of preparing false evidence to the extent ofpreparing false notices, orders, outward registers etc. The entryfind place in the record of the Postal Department as well. Simplybecause the plot has been given to respondent No.4, and the saidfirm has big business empire, necessary inference of manipulationat their instance cannot be drawn. If it is so, it can equallyapply to the petitioner as well. No malafides can be attributed ona vague statement that respondent No.4 is politically influential.

10. The say of Mr Sahni is that he left India in October, 1993 andreturned in April 1994. It may be noticed that the entireproceedings of cancellation of the plot and eviction proceedingshas taken place during the period 20.5.1993 to 18.8.1993. The plotwas also delivered to respondent No.4 on 23.10.1993 and all theletters of the ipetitioner except one or two are subsequent toSeptember 1994 from U.K. Mr Sahni has gone to the extent of sayingthat he came to know of the proceedings for the first time onlyfrom the reply filed by the GIDC. It is difficult to swallow thatthe petitioner No.1 which is a big business firm and the petitionerNo.2 who is an industrialist, will not have that much ofinfrastructure in the country that they will not know about theaforesaid proceedings. In the facts of the case, I have nohesitation to hold that the petitioner has deliberately concealedthe fact of the entire proceedings of cancellation of the plotunder reference and the eviction proceedings and he has filed thisSpecial Civil Application concealing this material fact. He is notonly guilty of concealing the material fact but also guilty ofmisleading the Court.

11. It may also be stated that this court, by order dated8.8.1995 directed the respondent-GIDC to show alternate land to thepetitioner to select the site and if it is selected, the petitionerwill make the proposal. The site was shown to the petitioner. MrSahni has filed an affidavit stating that the alternative landoffered is not suitable for the purpose of Industry to beestablished by him.

12. In pith and substance, the industrial plot was allotted tothe petitioner in 1986 and possession was also delivered for thepurpose of establishing an industry as part of the scheme for rapidIndustrial Development in the country. Unfortunately, thepetitioner has not utilised the land. Thus, after having waitedfor long seven years, the allotment had to be cancelled. What totalk of establishing an Industry, the allottee has no workableproject even today with him. The petitioner paid Rs.12,45,000/anddid not utilise the plot. The respondent No.4 has paidRs.1,29,50,400/- and within a year has developed the plot, which isevident from the averment made by Shri B L Yadav in para 4.2 of hisaffidavit extracted above. The demand of Industrial plot by thepetitioner does not appear to be bonafide. Mr Sahni while busyaround the world, wants to keep the plot unutilised for the purposebest known to him. Whatever may be the purpose, by his conduct, heis creating obstructions in the industrial growth of the country.In the fact of the case, to talk of observance of principles ofnatural justice does not lie in his mouth. In the case ofCHAIRMAN, BOARD OF MINING EXAMINATION vs. RAMJEE, reported in AIR1977 SC 965, the Apex Court has observed that Natural justice is nounruly horse, no lurking land mine, nor a judicial cure at all.Considering the fact of the case, I do not consider it to be a fitcase for exercise of powers of this Court under Article 226 of theConstitution of India.

13. Turning to alternative prayer for refund of Rs.12,45,000/-plus preliminary expenses incurred, the relief cannot be granted,in absence of specific pleadings with details. However, thepetitioner may make representation in this regard to therespondent-GIDC. The representation, if so made, shall be decidedin accordance with law.

14. In view of the aforesaid, there is no merit in thisSpecial Civil Application and the same is rejected. Noticedischarged. There shall be no order as to costs.

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