IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3409 of 2012 For Approval and Signature:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= SAIFUDDIN ABDULHUSEN SADIKOT - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance :
MR MA KHARADI for Petitioner(s) : 1, MR ROHAN YAGNIK AGP for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 1 - 3.
MR ANSHIN H DESAI for Respondent(s) : 3, =========================================================
CORAM : HONOURABLE MR.JUSTICE K.M.THAKER
Date : 17/09/2012 ORAL JUDGMENT
1. The petitioner has taken out present petition seeking below mentioned relief/s:-
“7. (A)...........
(B) Allow this petition and issue a writ of mandamus or a writ of certiorari or any other appropriate writ, order or direction against the respondents herein directing the respondents to pay compensation to the petitioner pursuant to the petitioner's application dated 5th March (ANNEXURE 'C') addressed to the Collector, Rajkot, in accordance with the directions issued by the Division Bench of this Hon'ble Court (Coram: the Hon'ble the Chief Justice S.J. Mukhopadhaya and Hon'ble Mr. Justice K.M. Thaker) vide order dated 17th September 2011 (ANNEXURE 'A') in Special Civil Application No.14664 of 2008 and other allied matters.
(C) This Hon'ble Court be pleased to issue directions to the respondents on the lines of the directions issued by the Division Bench of this Hon'ble Court (Coram: A.L. Dave and J.B. Pardiwala, JJ.) vide order dated 15th September 2011 (ANNEXURE 'P') in Special Civil Application No.8826 of 2011.
(D) This Hon'ble Court be pleased to direct the respondents to consider and grant compensation to the petitioner pursuant to the petitioner's application dated 5th March 2002 (ANNEXURE 'C') addressed to the Collector, Rajkot in accordance with the directions contained in orders of this Hon'ble Court dated 15.09.2011 (ANNEXURE 'P') and 17.09.2011 (ANNEXURE 'A'), to award compensation as prayed by the petitioner vide the petitioner's application dated 5th March 2002 (ANNEXURE 'C') addressed to the Collector, Rajkot, towards the damage caused to the properties of the petitioner.
(E)............
(F) ”
2. Having regard to the submissions made by learned advocate for the petitioner, petition requires consideration, hence, Rule. Mr. Rohan Yagnik, learned AGP waives service of Notice of Rule on behalf of the respondent. With the consent of the learned advocates appearing for the contesting parties the petition is taken up for hearing and final decision today.
3. The petitioner has, so as to support the relief prayed for in the petition stated, inter alia that he is one of the victims of Riots of 2002. It is claimed that the petitioner was running factory known as “Bharat Plastics Works” which is situated at 8 Mavdi Plot, Rajkot wherein the petitioner was manufacturing barrels of plastics since 1972.
3.1 It is claimed that during riots the said factory suffered loss and damage and the factory was, set ablaze. It is claimed that on 01.3.2002 the petitioner filed an FIR and in pursuance of the complaint panchnama was drawn.
3.2 Subsequently survey and assessment process was undertaken and the loss was assessed, by the competent authority at Rs.25,23,925/-.
3.3 The competent authority issued certificate mentioning details of the loss suffered by the petitioner. A copy of the said certificate issued by the District Industries Centre is placed on record at page 85 of the petition.
3.4 It also claimed that subsequently the State Government announced relief package for the riot affected persons. In response to which the petitioner had made application dated 5.3.2002 which was submitted to the Collector, Rajkot.
3.5 The petitioner has also claimed that according to the survey report and the certificate issued by the District Industries Centre the loss suffered by the petitioner was duly certified and survey report also acknowledge the loss caused to petitioner's property.
4. In this view of the matter petitioner's request was referred to the State Bank of Saurashtra for consideration of financial assistance, in light of the relief package declined by the respondent bank.
4.1 The petitioner has claimed that after scrutiny of the petitioner's application and project report, the State Bank of Saurashtra vide its letter dated 3.2.2003 and 26.6.2003 informed that having regard to the petitioner's financial position and his financial data, project appeared economically unviable.
4.2 On the said ground the bank declined to grant any financial assistance to the petitioner. Since bank declined to grant any financial assistance to the petitioner, the respondent Collector and the District Industries Centre also did not grant any relief under the Resolutions dated 16.3.2012 and 16.5.2012 on the ground that only those persons were considered eligible for benefit under the said resolutions whose applications were sanctioned by the bank or who were granted financial assistance by any bank / financial institutions, however since the petitioner was not granted any financial assistance by the bank and his application was rejected, he was not eligible for receiving any benefit under the said resolutions.
4.3 The petitioner has submitted that except the communication dated 1.1.2009 the petitioner has not received any intimation in writing and he has also not received any financial assistance and he has been informed that due to the said position his case for benefit under the said resolutions cannot be considered. Aggrieved by the said action or inaction of the respondent the petitioner has preferred present petition.
5. In response to the petition the respondent authorities have filed reply affidavit, stating, inter alia that:-
“5. It is stated and submitted that the Industries and Mines Department, Government of Gujarat had declared a scheme vide Resolution dated 16.3.2002 to give financial assistance for the rehabilitation of Industries and Commercial Establishments under which the Government of Gujarat had decided to give 4% interest subsidy against the loan received by affected establishments. Annexed hereto and marked as Annexure-R-I is the copy of the resolution No. RLF-10202- 760-ch dated 16.03.2002. As the petitioner had not been able to get the loan from any bank, he was not entitled to get the benefit under the said scheme.
6. There is another scheme which was introduced vide Government Resolution No. RLF-10202-760(5)-ch dated 16.05.2002 whereby the affected Industrial and Commercial Establishments would get 20% of the loan amount reimbursed by the Government of Gujarat. However, even under the said policy, only if the damage assessed is above Rs.50,000/-, then the claimant must obtain a loan from the said bank and 20% of the loan amount or Rs.50,000/-, whichever is less can be reimbursed by the State Government under the said scheme over and above the 4% interest subsidy. As the petitioner has failed to obtain the loan, he is not entitled to get benefit even under said scheme. Annexed hereto and marked as Annexure-R-II is the copy of the resolution No. RLF-10202-760(5)-ch dated 16.05.2002.
7. I say and submit that, in present case, the petitioner claims that he is riot affected person and he is entitled to the relief/aid towards rehabilitation. To provide the compensation to the victim under the aforesaid State Government schemes, a procedure that was prescribed was that every riot affected person had to apply to District Industries Centre (referred hereinafter as DIC) to get the benefit, and DIC, on receipt of such application, carries out survey of the damage that took place due to the riots. After the survey, DIC gives certificate of damage assessment and on basis of such certificate, the concerned person has to approach the bank of his choice from where he has to obtain loan to effect rehabilitation of his industrial unit.
8. It is humbly submitted that in present petitioner's case, on receipt of application from the petitioner for receiving benefit under the scheme for riot affected commercial and Industrial establishments, the office of the the deponent had carried out assessment and assessed the damage to the tune of Rs.25,23,925/-. The certificate to that effect was also issued on 01.05.2002. The said certificate was forwarded to the State Bank of Saurashtra, Mavadi Plot Branch, Rajkot; the bankers of the petitioner as mentioned in his application. From the letter of the bank as annexed herewith as Annexure-R-III, and as admitted in the para 2.3 of the petition, it makes distinctly clear that the bank rejected the loan application of the petitioner and hence, the petitioner failed to get the loan from the said bank. The DIC also apprised the petitioner of the same, a copy of the same letter dated 26/2/2003 is annexed herewith as Annexure-R-IV. In this letter, DIC also requested the petitioner to inform the DIC, if the unit can avail loan from the any other bank, so as to recommend the petitioner for the assistance. Even after that, the petitioner never turned up to DIC with any such information, leading to the presumption that the petitioner has failed to avail any loan, which was a pre- condition to get the assistance from Industries Department.
9. I respectfully say and submit that the petitioner had submitted his representation vide his letter dated 26.12.2011 addressed to the H.E. Governor, Gujarat State, Gandhinagar for giving compensation against the damage of his commercial property. A copy of the same was sent to Dy. Commissioner of Industries, District Industries Centre, Rajkot for necessary action. A reply to that was also given to the petitioner by the concerned officer vide a letter dated 03.01.2012 mentioning the fact that his application cannot be entertained, in absence of any further scheme either of the State Government or Central Government, which can qualify him for assistance. The copy of the said letters dated 26.12.2011 and 3.1.2012 are annexed hereto and marked as Annexure- R-V.
10. It is stated and submitted that the letter from Ministry of Home Affairs addressed to the Chief Secretary of Government of Gujarat dated 30.04.2007 annexed by the petitioner in the petition as Annexure-L, again pertain s to the victims of death and injured persons and “those who received ex-gratia payment earlier by the Government of Gujarat”. Hence, the petitioner does not fall under the definition of beneficiary even under any of the categories mentioned in the Government policy mentioned hereinabove. In light of the above, it is not true that the respondent No.2 has not fulfilled his statutory obligation.”
6. The respondent authorities have also placed on record the copy of the communication dated 3.2.2003 and 27.2.2003 addressed by the State of Gujarat under which the petitioner's application for financial assistance was rejected.
7. Mr. Kharadi, learned advocate for the petitioner has relied on the decision dated 7.9.2011 passed in Special Civil Application No.14664 of 2008 and allied matters and the decision dated 15.9.2011 in Special Civil application No.8826 of 2011. He submitted that it is not in dispute that the petitioner's property has suffered damage and loss during the riots. It is also not in dispute that the petitioner had, at the relevant time, filed FIR. In survey report also detail about loss suffered by the petitioner's property has been duly recorded. He also relied on the certificate issued by the District Industries Centre. On said background of facts Mr. Kharadi, learned advocate for the petitioner has submitted that there is no justification in not entertaining petitioner's application for benefit under the two resolutions dated 16.3.2012 and 16.5.2012.
8. Mr. Kharadi, learned advocate for the petitioner submitted that since the bank has informed that the project submitted by the petitioner has not been found economically viable the petitioner has filed affidavit stating, inter alia that the four persons whose names mentioned in the affidavit dated 11.9.2012 have assured to give financial aid to the petitioner and as a result of which the petitioner will be able to ensure sufficient finance which would be required in addition to the financial assistance which may be available from bank and under the said two resolutions.
9. Mr. Yagnik, learned AGP has submitted that the sanction of financial assistance by the bank or other financial institutions is basic requirement for extending benefit under the said resolutions dated 16.3.2012 and 16.5.2012 and since the petitioner could not get any financial assistance from the bank and his application came to be rejected, the petitioner cannot be treated and considered as eligible for benefit under the said two resolutions and that therefore the position of the respondent authorities cannot be faulted.
10. It emerges from the above mentioned fact that there is no dispute about the fact that the petitioner's property suffered loss and damage during riots and / or that the survey report also the fact about loss caused to the petitioner's property is acknowledged and / or that the petitioner had immediately filed complaint at the Police Station and / or that the District Industries Centre has assessed loss at Rs.25,23,925. Despite such facts the petitioner's application has been considered only because the concerned bank to whom the petitioner's case was referred did not approve his project and rejected his application on the ground that the petitioner's financial position was unviable in view of the financial data suffered by petitioner.
11. Though, to an extent, the respondent authorities may be right and justified in claiming that the petitioner has not fulfilled the condition prescribed under the two resolution dated 16.3.2012 and 16.5.2012 and that therefore he cannot be considered eligible for extending benefit under the said two resolutions. It is also equally true that the petitioner has placed on record affidavit whereby petitioner has been able to demonstrate that he will be able to put together necessary finance with help of the assistance from the persons whose names are mentioned in the affidavit dated 11.9.2012. The said details were not available at the relevant time before the bank and / or the concerned competent authorities who appear to have declined petitioner's request for benefit under the resolutions.
12. Therefore, it appears that this is a fit case which should be remitted to the respondent authorities for reconsideration and fresh decision in light of the orders passed by the Division Bench dated 7.9.2011 in Special Civil Application No.14664 of 2008 and allied matters and 15.9.2011 Special Civil Application No. 8826 of 2011.
13. Therefore, below mentioned order is passed:
(A) The petition is partly allowed. Rule is made absolute to the aforesaid extent. The case is remitted to the competent respondent authorities for reconsideration.
(B) The decision of respondent authorities treating petitioner and his application as unviable for any benefit including benefit under the said two resolutions dated 16.3.2012 and 16.5.2012 is set aside.
(C) The matter is remitted to the competent authority of the respondent for fresh consideration and necessary and appropriate fresh orders.
(D) The competent authority shall take into consideration, FIR filed by the petitioner, survey report, certificate issued by the District Industries Centre about loss / damage caused to petitioner's property and also the reply affidavit dated 11.9.2012 and take appropriate fresh decision after hearing petitioner, in light of the above referred two orders by the Division Bench i.e. orders dated 7.9.2011 in Special Civil Application No.14664 of 2008 and allied matters and 15.9.2011 Special Civil Application No. 8826 of 2011.
(E) The respondent authority shall take into account observations and direction by the Court in the said two decisions as well as in present matter in right perspective and proper spirit and decide the petitioner's application afresh without being influenced by earlier decision and present order. Petitioner's request will be considered afresh on merits and appropriate decision will be taken as expeditiously as possible and preferably within two weeks from the service of certified copy of present order.
With the aforesaid clarification the petition stands disposed of accordingly.
Suresh* Sd/-
(K.M.THAKER,J.)