Abhay Tyagi Vs Uttar Pradesh State Industrial Development Authority & Anr

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140 paragraphs · 2,998 words

The main contention of the applicant is with regard to use of land of industrial area in place of Common Facility Center (CFC). The matter was taken up by this Tribunal on 15.09.2022 and a report was called for from the respondents concerned.

In reply thereof, Uttar Pradesh State Industrial Development Authority has submitted that no land earmarked as park has been converted to industrial plot.

It is further submitted that:-

i). While carving out an industrial area, apart from individual industrial plots, many other sites/plots are being carved out as per use in layout plan of that industrial area.

ii). Land under CFC in question was lying undeveloped since establishment of industrial area in question in 1991 and remain without any use and that this industrial plot was allotted to M/s Span Organics Pvt. Ltd. vide letter/order dated 13.07.2006 after public auction and the allotment letter is annexed as ANNEXURE R- 1.

iii) The area of CFC shown in approved layout plan of industrial area in question in 1991 was 0.30 hectare (which is equal to 3000 Sq. Meter approx). After conversion of said CFC into industrial plot in the year 1991 site plan was prepared by the then Superintendent Engineer and area of converted industrial plot has been shown as 2946.80 sq. meter. Thus, it is clear that industrial plot has been converted from land under CFC only and no land under the Park has been disturbed.

iv.) Purpose of CFC is not concerned in any way with protection of environment like parks. In fact, such lands are being used for purposes like banks, post office, cafeteria etc. As such, conversion of CFC into industrial use is not against the environment because even if, the land in question is being used for purposes as mentioned above, construction has to be necessarily carried out. Thus, even if conversion of CFC into industrial plot is withdrawn, construction is inevitable even in case of CFC uses. It will not be out of place to mention here that CFC uses are not at par with use as open space.

It is further submitted by respondent- UPSIDA that a letter dated 09.03.2022 was sent by the respondent to the applicant with information that inspection of the site was carried out by the respondent wherein it was found that there were two parks/open spaces in the layout. However, one of the park has been illegally encroached. Ghaziabad Nagar Nigam was requested to remove the encroachments on the park/open space and the team from UPSIDA was made available.

Respondent- M/s Span Organics Private Limited has submitted that the applicant in bonafide allottee/purchaser of the industrial plot in question since 2006, after meeting all norms as prescribed for auction, bidding and allotment by the competent authority i.e. Uttar Pradesh State Industrial Development Authority. It is further submitted that as per layout plan, there are two number of park/open spaces, in which open space is vacant but there are encroachments in the park. Learned Counsel for the respondent has further argued that since he is bonafide purchaser/ allottee of the land since 2006, thus, the allotment cannot be challenged under provision of Section 14 of the NGT Act, 2010 being time barred. It is further argued that no park land has been converted into the industrial area.

Respondent No. 1 and 2 have submitted that the (Preparation And Finalization of Plans) Regulation, 2004 of the area have been filed with the reply and further argued that no park area has been converted as industrial area.

I.A. No. 598/2023

An Application has been moved on behalf of UP Pollution Control Board with effect that vide order dated 11.05.2023, the Tribunal had directed to pay a certain amount to be paid to the Amicus Curiae in addition to economic class airfare, boarding, lodging and other related incidental charges and it has been submitted that it is very difficult for UP Pollution Control Board to make payment for honorarium to the Learned Amicus Curiae from the concerned fund, because it is not permissible. In view of the fact that we have heard an argument on a point and taking final decision, thus, there is no requirement of payment of that amount to Amicus Curiae. The Application is allowed and disposed of accordingly.

In its additional affidavit by Respondent No. 1, it has been submitted that:-

I. A site visit was made to two sites of UPSIDA- Sikandrabad Industrial Area and Industrial Area at Mussoorie Gulawathi Road, (Road no. 11) phase-Ill. At the very outset it is submitted that there is no earmarked for CFC in Mussoorie Gulawathi Road Industrial Area. The annexed photographs of the structure in Mussoorie Gulawathi Road Industrial Area is of an administrative building in the Industrial Area which was being used by the Answering Respondents and is now lying vacant since it needs repair and maintenance for which an estimate of Rs. 54.13 Lacs has been sanctioned by UPSIDA on 17.10.2022. The Notice inviting tender was published on Government of U.P E-tendering portal (due to insufficient participation of bidders the tender is under rebid for the 4th time) and the bid opening date is 20.07.2023 1100 Hrs.

II. In so far as CFC in Sikandrabad Industrial area is concerned, the same is not is use and will be demolished and reconstructed. The administrative approval for demolition of the building is under process. After the building is demolished, the estimate for reconstruction will be prepared.

III. That the following CFCs at UPSIDA Industrial areas are fully operational, functional and in use:

No -

Industrial

Area

CFC Building

Currently being Used

Facilities available in CFC

Building

bv/ Used for

Naini, Prayagraj

Regional Manager Office

Double Story with 2 Nos of Big halls, 04 Suits, 02 Nos

of Shops, Toilet etc.

Bargarh, Cltitrakoot

Allotted to BSNL (Part) (on rent)

Double Story with 2 Nos

of Big Halls, 04 Suits, 02 Nos of ,Shops,Toilet etc.

Gajrola, Jyotiba Phule

Nagar

Allotted to BSNL (On rent)

Double Story with 1 Nos of Big Halls, 06 Rooms, Toilet etc.

Surajpur Site B84 C, Cautam Buddha Nagar

Industrial Association Office, Post Office, Bank (On rent)

Double Story with 7 Nos of Big Halls, Canteen, Store room, 02 Nos of Shops, Toilet etc.

Matwan, Fateltpur

Bank (On rent)

Double Story with 2 Nos of

Big Halls, 04 Suits, 02 Nos of Shops, Toilet etc.

Unnao Site 1, Unnao

IIA Office And Bank

of India Training Center

To be demolished and reconstructed

Chinhat, Lucknow

Post Office, kiosk (canteen), BSNL office (on rent)

Double Story building with Shops and toilet

Raebareli Site 2, Raebareli

Currently in use as Dormitory by Factory Employees (Building Under Renovation and Upgradation)

Double Story building with Rooms and toilets

Parsakhera, Barcilly

Currently in use by the Fire Station employees(Under Renovation and Upgradation)

Double Story building with Rooms and toilets

IV. The following CFC buildings are currently vacant/not in use wherein proposed development plans have been duly prepared:

Industrial Area

Current Status

Future Development Plan

Begrajpur, Muzzafarnagar (Meerut)

Vacant-Under Renovation and Upgradation

Proposed to be used for Indian Industries Association (IIA) office, Conference Hall, Creche, Skill development Center, Common Service Center (Jan Suvidha Kendra), Business Center, Dormitory for Workers, Banks Branch, Post Office, Worker's canteen etc.

Karkhiyaon, Varanasi

Vacant;Renovated in 21-22 It is a double storey building with 04 big halls, 02 suites and toilet. The first floor is being used as Regional Manager UPSIDA Office and the rest of the etc. building is vacant

Proposed to be used for IIA office, Conference Hall, Creche, Dormitory for Workers, Banks Branch. Skill development Center. Common Service Center (Jan Suvidha Kendra). Business Center, Post Office, Worker's canteen etc.

Ram Nagar, Chandauli

Vacant-Under Renovation and Upgradation

Proposed to be used for IIA office, Conference Hall, Creche, Dormitory

for Workers, Banks Branch. Skill

development Center. Common Service Center (Jan Suvidha Kendra). Business Center, Post

Office, Worker's canteen etc.

IIDC, Chandauli

Vacant-Under Renovation and Upgradation

Proposed to be used for IIA office, Conference Hall, Creche, Dormitory for Workers, Banks Branch. Skill development Center. Common Service Center (Jan Suvidha Kendra). Business Center, Post

Office, Worker's canteen etc.

Sikenderabad, Bulandshahr

Not in Use

To be demolished and reconstructed

Foundry Nagar, Agra

Not in Use

To be demolished and reconstructed

Sumerpur, Hamirpur

Not in Use (To be Upgraded and estimate renovated, preparation)

Renovated building to be used for IIA office, Conference Hall, Creche, Dormitory for Workers, Banks Branch. Skill development Center. Common Service Center (Jan Suvidha Kendra). Business Center, Post Office, Worker's canteen etc.

Jainpur, Kanpur Dehat

Not in Use

(To be Upgraded and renovated, estimate under preparation)

Orai Site 1

Vacant (Renovation required)

10.

Raebarely- I

Vacant (Under Renovation and Upgradation)

Renovated building to be used for IIA office, Conference Hall, Creche, Dormitory for Workers, Banks Branch. Skill development Center. Common Service Center (Jan

Suvidha Kendra). Business Center, Post Office, Worker's canteen etc.

11.

Jagdishpur, Amethi (Raebareily -II)

Allotted to

dispensary (on rent); Under Renovation and Upgradation.

It is a double storey building and part of the CFC is being used by ESI dispensary and rest of the building is vacant.

It has further been submitted that CFCs viz Bargarh are planned to be renovated under Corporate Social Responsibility by industries established in UPSIDA Industrial Areas.

10.

In exercise of power of judicial review, the Courts/Tribunal do not ordinarily interfere with the policy decisions of the executive unless the policy can be faulted on the ground of mala fide, unreasonableness,

arbitrariness or unfairness etc. Indeed arbitrariness, irrationality, perversity and mala fide, render the policy unconstitutional. Unless a policy decision is demonstrably capricious or arbitrary and not informed by any reason or discriminatory or infringing any Statute or the Constitution, it cannot be a subject of judicial interference. However, if the policy cannot be touched on any of these grounds, the mere fact that it may affect business interests of a party does not justify invalidating the policy. (Vide M/s. Ugar Sugar Works Ltd. Vs. Delhi Administration & Ors., AIR 2001 SC 1447; State of Himachal Pradesh & Anr. Vs. Padam Dev & Ors., (2002) 4 SCC 510; Balco Employees’ Union (Regd) Vs. Union of India & Ors., AIR 2002 SC 350; State of Rajasthan & Ors. Vs. Lata Arun AIR 2002 SC 2642; and Federation of Railway Officers Association Vs. Union of India, (2003) 4 SCC 289).

11.

In Union of India & Anr. Vs. International Trading Company & Anr. (2003) 5 SCC 437, the Supreme Court pointed out that the Policy of the Government, even in contractual matters, must satisfy the test of reasonableness and every State action must be informed by reason. Article 14 of the Constitution applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional. The Court further held as under:-

“15. While the discretion to change the policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible reason, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness.

16.

Where a particular mode is prescribed for doing an act and there is no impediment in adopting the procedure, the deviation to act in a different manner which does not disclose any discernible principle which is reasonable itself shall be labeled as arbitrary. Every State action must be informed by reason and it follows that an act uninformed by reason is per se arbitrary.”

(Emphasis added).”

12.

In Union of India Vs. Dinesh Engineering Corpn. & Anr. (2001) 8 SCC 491 the Supreme Court observed as follows:-

“.........Where the decision of the authority is in regard to a policy matter, this Court will not ordinarily interfere since these policy matters are taken based on expert knowledge of the persons concerned and courts are normally not equipped to question the correctness of a policy decision. But then this does not mean that the courts have to abdicate their right to scrutinise whether the policy in question is formulated keeping in mind all the relevant facts and the said policy can be held to be beyond the pale of discrimination or unreasonableness, bearing in mind the material on record………. .

Any decision, be it a simple administrative decision or a policy decision, if taken without considering the relevant facts, can only be termed as an arbitrary decision. If it is so, then be it a policy decision or otherwise, it will be violative of the mandate of Article 14 of the Constitution.”

13.

In Krishnan Kakkanth Vs. Govt. of Kerala, AIR 1997 SC 128; the Hon'ble Apex Court held that the judicial review of policy decision is permissible in exceptional circumstances only when the Court is of the view that the order suffers from arbitrariness and unreasonableness. The Court observed as under:-

“To ascertain unreasonableness and arbitrariness in the context of Article 14 of the Constitution, it is not necessary to enter upon any exercise for finding out the wisdom in the policy decision of the State Government. It is immaterial if a better or more comprehensive policy decision could have been taken. It is equally immaterial if it can be demonstrated that the policy decision is unwise and is likely to defeat the purpose for which such decision has been taken. Unless the policy decision is demonstrably capricious or arbitrary and not informed by any reason whatsoever or it suffers from the vice of discrimination or infringes any statute or provisions of the Constitution, the policy decision cannot be struck down. It should be borne in mind that except for the limited purpose of testing a public policy in the context of illegality and unconstitutionality, Court should avoid embarking on uncharted ocean of public policy.”

14.

In Sterling Computers Ltd. Vs. M/s. M & N Publications Ltd., AIR 1996 SC 51, the Hon'ble Supreme Court held as under:-

“It is not possible for Courts to question and adjudicate every decision taken by an authority, because many of the Government Undertakings which in due course have acquired the monopolist position in matters of sale and purchase of products and with so many ventures in hand, they can come out with a plea that it is not always possible to act like a quasi-judicial authority while awarding contracts. Under some special circumstances a discretion has to be conceded to the authorities who have to enter into contract giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms. If the decisions have been taken in bona fide manner although not strictly following the norms laid down by the Courts, such decisions are upheld on the principle laid down by Justice Holmes, that Courts while judging the constitutional validity of executive decisions must grant certain measure of freedom of play in the joints to the executive........ On the basis of those judgments it cannot be urged that this Court has left to the option of the authorities concerned whether to invite tenders or not according to their own discretion and to award contracts ignoring the procedures which are basic in nature, taking into account factors which are not only irrelevant but detrimental to the public interest.”

15.

In view of above report, there is no change of land use. Further the authorities issuing the order were competent to pass an order and anyone aggrieved may file an Appeal or Revision before the appropriate forum against the order passed by the competent authority. The policy decisions of the Executive should not be ordinarily interfered with, unless it is proved to be malafide. Nothing has been stated or proved by the applicant on this point that the order passed by the competent authority is arbitrary or malafide or against the public policy. Since the allotment of the land was made in the year 2006, thus, the matter does not come within the purview of Section 14 of the NGT Act, 2010 (Schedule I). Thus, no further action is required to be taken by this Tribunal.

16.

The Original Application stands disposed of.

Abhay Tyagi vs Uttar Pradesh State Industrial Development Authority & Anr

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