Heard Mr. Shelat, learned advocate for the petitioner, Mr. Meena, learned advocate for the respondent Nos.1 and 2, and Mr. Buch, learned advocate for the respondent No.4. Though served, no one has entered appearance for the respondent No.3.
2. In present petition, the petitioner has prayed that:-
“9[A] The Honourable Court be pleased to issue writ of Mandamus, or any other writ, order or direction, directing the respondents authority to allot the adjacent plot no.2026 under the Out of Turn Priority (O.T.P.) Allotment of adjacent plots Policy Annexure A & B of G.I.D.C. as requested for in the Petitioners application dated 15.6.2011 as eligible industry and to hold that the Petitioner also entitled to get the adjacent plot no.2026 being eligible and on the basis of notings numbered 101 and 111 and on parity with other identical cases, in the interest of justice.”
3. The aforesaid relief has been prayed for in light of the facts that in GIDC Industrial Estate, Rajkot, the petitioner has been allotted an industrial plot No.G-2027 admeasuring about 994.5 sq. mts. The petitioner is running a manufacturing unit at the said plot. The petitioner has claimed that an adjoining plot is vacant (i.e. plot No.G-2026) and the respondent corporation is in process of selling the said industrial plot.
3.1 It is also claimed that in view of the proposed action of the respondent corporation, the petitioner has approached the Court claiming that in view of the prevailing policy of the respondent corporation, the petitioner is entitled to seek allotment of the said plot on out of turn priority basis. The petitioner has claimed that the respondent corporation has framed a policy viz. “Out of Turn Priority Allotment Policy” [OTP Policy]. According to the petitioner, in view of the said OTP Policy, the petitioner is entitled to seek allotment of the said plot No.G-2026 on out of turn basis. The petitioner has also claimed that the petitioner is ready to pay 20% more than the prevailing allotment rate. The petitioner has alleged that though the petitioner approached the respondent corporation with such request, without even considering the request the respondent corporation seems to have decided to proceed with sale of the said vacant plot No.G-2026. The respondent corporation has neither offered opportunity of hearing to the petitioner nor allotted the plot to the petitioner.
3.2 To support its request, the petitioner has also placed on record certain documents which are said to have been received by the petitioner in response to the application made under the provisions of Right to Information Act.
4. The respondent corporation has resisted the petition. Regional Manager Mr. P.N.Shah has filed affidavit dated 18.10.2011, stating, inter alia, that:-
“4. Before proceeding further, it would be relevant and necessary to state and narrate certain factual aspects its right perspective to give a clear picture of the controversy contained in the present petition. That the petitioner herein is currently the owner of plot no.G-2027 situated at Lodhika GIDC estate. It further appears that the petitioner herein had applied for allotment of plot no. G-2027 Admeasuring 994.50 square meter on the basis that the same is adjoining plot and is required to be given to the petitioner as per out of turn policy for expansion of the existing plot area. The petitioner has specifically relied on circular dated 31/1/2006 and 31/5/2008 which specifically provides for out of turn policy for adjoining plot holders. It is submitted that the petitioner had made representation dated 15/6/2011 which is yet to be decided by the Corporation. Accordingly, the present answering respondent Corporation herein takes a preliminary contention that the petition of the petitioner is required to be dismissed on the ground that the same is premature.
5. It is further submitted that the petitioner herein has sought decision in his favour on basis of two notings being noting no.106 dated 24/8/2011 of head office and noting no.111 dated 7/9/2011 made by divisional manager Rajkot. The answering respondent herein submits that such reliance by the petitioner on file notings is misconceived to the extent that the same does not confer any rights in the favour of the petitioner. It is submitted that the Honourable Supreme Court in the case of Sethi auto service station versus Delhi Development Authority (2009) 1 SCC 180 has held the following:-
“Notings in departmental file do not have sanction of law to be an effective order. Noting by an officer is an expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials of the Department and for the benefit of the final decision-making authority. Internal nothings are not meant for outside exposure. Notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority the Department, and get his approval and final order is communicated to the person concerned.”
Hence, in the respectful submission of the answering respondent, merely because some notings are in favour of the petitioner, the same to not confer any right in favour of the petitioner.
6. It is submitted that the application dated 16/6/2011 made by the petitioner for adjoining plot no.G-2026 at Lodhika GIDC estate is still pending and that the Corporation is yet to decide on whether the plot under consideration is required to be disposed off through auction or to be allotted under adjoining category. The powers to decide the said representation vests with Vice Chairman & Managing Director and the file is still under process. It is further submitted that the present answering respondent Corporation does not enter into correctness of the notings dated 7/9/2011 and 24/8/2011 as the same does not confer any right in favour of the petitioner as per the decision of the honourable Supreme Court as referred above.
7. Further, it is submitted that while it is true that vide circular dated 31/5/08, in a saturated estates, the adjoining plot for expansion purpose can be allotted without auction at prevailing allotment price plus 20% of the prevailing allotment price, the OTP allotment is restricted to 15% of the total eligible area. Further vide circular dated 31/1/06, the adjoining plot for expansion purpose can be allotted under conditions specified from 1 to 10 of the said circular. Further, Lodhika being saturated estate, plots are allotted through auction only. Thus, the Corporation is yet to decide on whether the plot under consideration is required to be disposed off through auction or to be allotted under adjoining category. The powers to decide vests with Vice Chairman & Managing Director and as the file is still under process the petition of the petitioner is premature and the same is required to be dismissed on the ground alone. As the corporation has yet not decided to consider the plot under auction or allot it under adjoining category.
8. Further, it is submitted that the case of petitioner is still under examination and no final decision is taken or conveyed to any of the applicants of adjoining category of this plot. And the decision of the corporation takes a view based on the market scenario, local conditions and eligible factors for deciding the disposal of the plots for auction on estate to estate basis.”
5. Before proceeding further, it is necessary and relevant to take into account that there is yet another claimant for the said vacant plot, i.e. the applicant in Civil Application No.8864 of 2012 - (M/s. Greenland Techno) [hereinafter referred to as “applicant”]. The said M/s. Greenland Techno – applicant preferred the said Civil Application praying inter alia that it may be allowed to join the proceedings of Special Civil Application No.14740 of 2011, i.e. present writ petition. The said request was made on the ground that the said applicant has also submitted an application to the respondent corporation for allotment of the same plot, i.e. plot No.G-2026, on the ground that the said applicant is also plot holder of adjoining plot, i.e. plot No.G-2025 and that therefore, it is interested party in present proceedings.
Having regard to the said submission and with a view to avoid multiple application/petition, the said application was allowed vide order dated 13.9.2012.
6. Accordingly, there are two claimants for the plot in question, i.e. plot No.G-2026. Both the claimants claim that they are plot holders of adjoining plots, i.e. one on the northern side and the other one on the southern side, of the said plot. It is claimed by both the claimants that in view of the OTP Policy, they are entitled for allotment of the said plot.
6.1 Ordinarily, it would be contended that the applicant whose application is received by the respondent corporation first will have a preference and priority in claiming the allotment. However, in view of the fact that in present case there is an OTP Policy, the respondent corporation would contend that according to its policy, allotment of plot can be made by auction.
The respondent corporation has declared and stipulated by filing affidavit dated 18.9.2012 that:-
“2. I say and submit that I am filing this additional affidavit only with a view to bring certain important facts to the notice of this Honourable court. It is submitted that in the present case, the petitioners had made a representation on 15/6/2011 claiming for the plot in question on the basis of circular dated 31/1/2006 and 31/5/2008 which provides for Out of Turn Priority to adjoining plot holders. It is further submitted that during the interim period, the newly added respondent, M/s. Greenland Techno, who is also an adjoining plot holder of the plot in question, has also made an application for allotment of plot on basis of Out of Turn Priority Policy.
3. It is submitted that as per clause 3 of circular dated 28/8/2012, if there are more than one eligible candidates for a single plot, an inter-se auction is required to be done between the eligible parties and the highest bidder is to be given the said plot. The copy of the circulated dated 28/8/2012 is annexed with this reply and marked as “Annexure R1”.
4. In light of the aforesaid submissions, it is submitted that the Corporation has no objection, if this Honourable Court directs inter se bidding between the two eligible parties i.e. the original petitioner and M/s. Greenland Techno.”
Thus, according to the respondent corporation, the alternative, which is available is to allow inter-se bidding between the petitioner and the applicant, who is allowed to join the proceedings of present petition under order dated 13.9.2012.
6.2 On this count, learned counsel for the petitioner and the applicant would jointly submit that they are ready and willing to share the said plot equally.
Differently put, the petitioner and the said applicant are ready to receive allotment of 50% of the plot.
However, the respondent corporation would contend that its policy does not contain any provision for bifurcation and allotment of plot by sub-dividing the same between two claimants.
The respondent corporation would contend that at the most, it can allow inter-se bidding instead of going for public auction.
7. In background of such facts and circumstances and in light of the response by the respondent corporation, Mr. Shelat and Mr. Buch, learned counsel for the petitioner and the applicant respectively, have jointly submitted that the Highest Officer of the respondent corporation, i.e. the Managing Director/Chief Executive Officer [hereinafter referred to as “MD/CEO”] may consider the request of the petitioner and the applicant, and in exercise of its discretionary powers, pass appropriate orders and in the alternative, i.e. if the said joint request does not find favour with the MD/CEO or if the said officer is of the view that on account of respondent corporation's policy, request cannot be accepted, then, inter-se bidding may be allowed by treating respondent corporation's prevailing rate as the base price/upset price and the petitioner and the applicant may be permitted to enter into inter-se bidding, which may take place in presence of officer nominated by the MD/CEO of the respondent corporation.
Learned counsel for the respondent corporation has submitted that though according to his instructions there is no policy under which such request for sub-division of plot can be considered, however, if the petitioner and the applicant approach the MD/CEO with appropriate application, the said authority will consider the application in accordance with applicable rules and policy.
Learned counsel for the respondent corporation also submitted, in light of the affidavit dated 18.9.2012, that in the alternative, the respondent corporation is ready and willing to permit the petitioner and the applicant to enter into the process of inter-se bidding.
8. What emerges from the submissions by the contesting parties, i.e. the petitioner, the applicant and the respondent corporation, is that the respondent corporation probably does not have any policy allowing sub-division of plot amongst the existing plot holders for the purpose of allotting vacant plots, however, at the same time, there does not appear to be any express prohibition prohibiting such sub-division.
Therefore, subject to the provisions under the Gujarat Industrial Development Corporation Act and the Rules framed thereunder as well as relevant and applicable Policies and Guidelines, the MD/CEO of the respondent corporation may be, in exercise of his discretionary powers in position to consider the joint request by the petitioner and the applicant.
In that view of the matter, it appears that present petition can be disposed of, at this stage, in light of the joint request made by the petitioner and the applicant, i.e. respondent No.4 herein.
Therefore, below mentioned order is passed:-
8.1 As declared and stipulated by the learned counsel for the petitioner and the applicant that the petitioner and applicant are ready and willing to share, equally, the vacant plot and for that purpose, they are ready and willing to jointly make appropriate request/application to the respondent corporation of allotting the said vacant plot, i.e. plot No.G-2026, in equal proportion to the petitioner and the applicant and in the alternative i.e. if such request can not be entertained, then, they are ready and willing to enter into inter-se bidding.
In that view of the matter, it is clarified and observed that it will be open to the petitioner and the applicant to make such joint application to the competent officer of the respondent corporation.
If and when such application is received by the competent officer of the respondent corporation, it may be considered in accordance with law and applicable rules, regulations, policies, circulars and guidelines of the respondent corporation.
If the competent officer of the respondent corporation comes to the conclusion that the joint request made by the petitioner and the applicant can be accepted, then, appropriate order may be passed by the competent officer of the respondent corporation.
8.2 However, in the event, the competent officer of the respondent corporation comes to the conclusion that such request cannot be accepted, then, the respondent corporation shall, as per the declaration and stipulation made in the affidavit dated 18.9.2012 and the provision contained in its circular dated 28.8.2012, permit the petitioner and the applicant to enter into the process of inter-se bidding.
For the said process, prevailing rate of the respondent corporation shall be treated as the base price/upset price and inter-se bidding shall start from such price.
At the end and conclusion of such process of inter-se bidding, the highest bidder may be allotted the said plot and subsequent formalities will be completed as per the applicable rules and regulations of the respondent corporation.
8.3 The respondent corporation may endeavor to complete the aforesaid process, as expeditiously as possible, preferably within 4 months from today.
8.4 It is clarified that present order is passed in view of the joint request made by learned counsel for the petitioner and the applicant and in light of the stipulation made by learned counsel for the respondent corporation that if any application is made by the concerned parties, it will be considered by the competent officer of the respondent corporation in accordance with law and applicable rules.
Besides this, it is clarified that present order is passed in light of the stipulation and declaration made by the respondent corporation in the affidavit dated 18.9.2012 according to which, inter-se bidding for allotment of vacant plot on OTP is permissible as per the circular dated 28.8.2012.
With the aforesaid observations, clarifications and direction, present petition stands disposed of. Notice is discharged.
(K.M.Thaker, J.) kdc