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IN THE HIGH COURT OF JHARKHAND AT RANCHI
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY, J.
BMC Ferrocast Private Limited - Petitioner
Versus
Adityapur Industrial Area Development Authority & Ors. - Respondents
W.P. (C) No. 949 of 2017
Decided On : 09-01-2024
[CERTIORARI] - [INDUSTRIAL POLICY AND TRANSFER FEES] - [Jharkhand Industrial Policy 2012, Bihar Industrial Area Development Authority Act, 1974] - [The court analyzed the Jharkhand Industrial Policy 2012, particularly Clause 12.12.2, which stipulates transfer fees for M.S.M.E. units at 15% of the land's present value. The court interpreted that the transfer fee should be calculated based on the approval date of the change in constitution of the firm, which was on 20.06.2011, rather than the date of the partnership agreement. The court emphasized that the policy is beneficial for promoting industries and should be applied accordingly, leading to the conclusion that the petitioner was entitled to a refund of excess fees paid.]
Fact of the Case:
The petitioner sought to quash the order of Respondent No.1, which denied a refund of excess transfer fees paid for a plot under the Jharkhand Industrial Policy 2012. The petitioner argued that the transfer fee should be calculated at 15% of the land's value as per the policy, while Respondent No.1 contended that the partnership agreement predating the policy's enactment disqualified the petitioner from this benefit.
Finding of the Court:
The court found that the basis for Respondent No.1's denial of the refund was erroneous. It held that the transfer fee should be calculated based on the approval date of the change in constitution of the firm, which was after the policy's effective date. The court ruled that the petitioner was entitled to the benefits of the Jharkhand Industrial Policy 2012.
Issues: The primary issue was whether the petitioner was entitled to a refund of excess transfer fees based on the Jharkhand Industrial Policy 2012, and whether the date of the partnership agreement affected this entitlement.
Ratio Decidendi: The court established that the transfer fee should be calculated based on the approval date of the change in constitution of the firm, not the date of the partnership agreement. The Jharkhand Industrial Policy 2012 was deemed applicable, and the principle of unjust enrichment was not a barrier to the petitioner's claim as there was no evidence of passing on the burden of the fee.
Final Decision: The court quashed the order dated 05.08.2014 and directed Respondent No.1 to refund Rs.50,20,106/- to the petitioner within three months.
JUDGMENT :
ANIL KUMAR CHOUDHARY, J.
1. Heard the parties.
2. This writ petition has been filed with the prayer for issuance of an appropriate writ or writ in the nature of certiorari quashing the actions and decisions of the Respondent No.1 including the order dated 05.08.2014 passed by the Respondent no.1 by which the Respondent No.1 has not followed the Jharkhand Industrial Policy 2012 and failed to refund Rs.50,20,106/- out of 59,06,007/- paid by the petitioner to Respondent No.1 as transfer fees for the concerned plot No. M-35, Phase –IV, Industrial Area, Adityapur, Jamshedpur and secondly for issuance of an appropriate writ or a writ in the nature of Mandamus directing the Respondents to refund Rs.50,20,106/- to the petitioner and other reliefs.
3. The brief fact of the case is that the said Plot No. M-35 was allotted by the Respondent No.1 to M/s Food Marketing Centre of Xavier Labour Relations Institute. Subsequently, M/s. Conditioners India purchased the lease hold rights of M/s Food Marketing Centre of Xavier Labour Relations Institute for the concerned plot and consequently applied to Respondent No.1 for approving the said transfer of the concerned plot. The Respondent No.1 vide its order dated 24.07.1976 approved the transfer of the concerned plot in favour of M/s Conditioners India. M/s Conditioners India was a sole proprietorship firm of Mr. Pratap Singh. Mr. Pratap Singh faced financial difficulty in the year 2011. The petitioner agreed to provide financial assistance to M/s Conditioners India and to enter into a partnership with Mr. Pratap Singh. Consequently, on 01.03.2011, Mr. Pratap Singh, the sole proprietor of M/s Conditioners India entered into a partnership agreement with the petitioner making M/s Conditioners India a partnership firm. The partnership firm M/s Conditioners India on 03.03.2011 informed the Respondent No.1 about the change in constitution of the firm and requested the Respondent No.1 to make necessary changes in the record and to grant approval for such changes in the constitution of the firm. The Respondent No.1 vide its letter dated 20.06.2011 directed M/s Conditioners India to pay the total value of plot amounting to Rs.59,06,007/- to the Respondent No.1. The amount of Rs.59,06,007/- was paid on 07.09.2011. On 17.10.2011 Mr. Pratap Singh retired from the partnership firm namely M/s Conditioners India and it was agreed that the petitioner shall carry on as the sole proprietor of M/s Conditioners India with effect from 17.10.2011. The petitioner informed the same to the Respondent No.1 on 17.10.2011. The respondent no.1 vide letter dated 24.12.2011 approved the change; i.e. the petitioner becoming the sole proprietor of M/s Conditioners India. The Respondent No.2 being the State of Jharkhand, on 16.06.2012 notified the Jharkhand Industrial Policy 2012 and made it effective retrospectively from 01.04.2011. Clause 12.12.2 of the Jharkhand Industrial Policy 2012 provided that the transfer fees of any plot shall be charged by any Industrial Authority at the rate of 15% of the present value of the land in case of M.S.M.E. unit and at the rate of 25% for others. Thus the petitioner requested the respondent no.1 on 17.10.2012 to refund Rs.50,20,106/- to the petitioner and to keep only Rs.8,85,901/- as it amounted to being 15% of the total value of plot calculated as Rs.59,06,007/-. Same request was again made by the petitioner on 22.03.2014 but the respondent no.1 arbitrarily and without proper appreciation of the law and facts; by the impugned order dated 05.08.2014, rejected the said request of the petitioner to refund Rs.50,20,106/- out of Rs.59,06,007/- paid by the petitioner to the respondent no.1 as transfer fees for the concerned plot. Vide letter dated 06.01.2015, the petitioner requested the respondent no.1 to reconsider and review its order dated 05.08.2014 but the respondent no.1 did not respond to the letter dated 06.01.2015 of the petitioner nor it responded to the two reminder letters d
The court affirmed that the Jharkhand Industrial Policy 2012 applies retrospectively, allowing for a reduced transfer fee for M.S.M.E. units, and clarified that the date of the partnership agreement ....
Transfer fees cannot be levied without clear justification based on concrete policy application; a proper record examination is crucial in judicial decisions.
Thus, it is primarily for the authority concerned issuing the offer-cum-allotment letter to decide as to what terms and conditions should be incorporated. If the State or its instrumentality acts con....
The main legal point established in the judgment is that the principle of unjust enrichment is not applicable when a deposit is made without any statutory provision, as in the absence of a provision ....
existence of an alternative remedy whether adequate or not, does not alter the fundamentally discretionary nature of the High Court’s writ jurisdiction and, therefore, does not create an absolute bar....
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