1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5153 OF 2009 Dinesh S/o.Harishchandra Patil, Age-50 years, Occu-Business, R/o.”Swastik”, Behind Tahsil Office, Main Road, Latur Tq. and Dist. Latur PETITIONER VERSUS 1. The State of Maharashtra Through Secretary Ministry of Industries, Maharashtra State, Mantralaya, Mumbai. 2. The Maharashtra Industrial Development Corporation Through Regional Officer, Maharashtra Development Corporation, Latur, Tal. And Dist. Latur RESPONDENTS Mr.V.D.Salunkhe, learned counsel for the petitioner. Mr.V.H.Dighe, learned AGP for respondent no.1 Mr.S.S.Dande, learned counsel for respondent no.2 WITH WRIT PETITION NO.5167 OF 2009 Abhijeet S/o.Raosaheb Suryawanshi Age-28 years, Occu-Business, R/o.Radhika Traders, X-14, M.I.D.C. Kallamb Road, Latur Main Road, Latur, Tq. and Dist. Latur PETITIONER 2 VERSUS 1. The State of Maharashtra Through Secretary Ministry of Industries, Maharashtra State, Mantralaya, Mumbai. 2. The Maharashtra Industrial Development Corporation Through Regional Officer, Maharashtra Development Corporation, Latur, Tal. And Dist. Latur RESPONDENTS Mr.V.D.Salunkhe, learned counsel for the petitioner. Mr.V.H.Dighe, learned AGP for respondent no.1 Mr.S.S.Dande, learned counsel for respondent no.2 WITH WRIT PETITION NO.5328 OF 2009 1. M/s.Sudarshan Electrical Engineering Works, through its Proprietor, Ram Sukhdeorao Patil, Age-43 years, Occu-Industrialist, C/o.Plot No.A-38, MIDC, Osmanabad 2. Ila Glazers and Convertors, a Partnership Firm through its Partner Ravindra Gyandeorao Salunke, Age-56 years, Occu-Industrialist, C/o.Plot No.A-38, MIDC, Osmanabad 3. Sakhar Paper and Board Through its Proprietress Smt.Anar Ravindra Salunke, Age- years, Occu-Industrialist, C/o.Plot No.A-35, MIDC, Osmanabad 3 4. Vikram Stoves and Fabricators, Through its Proprietor, Vikram Sugriv Kale, Age-38 years, Occu-Industrialist, C/o.Plot No.A-37, MIDC, Osmanabad PETITIONERS VERSUS 1. The Regional Officer, MIDC, Latur, District Latur. 2. The Chief Executive Officer, MIDC, Central Office at Marol MIDC, Andheri, Mumbai. 3. The State of Maharashtra, Through its Chief Executive Officer, MIDC, Central Office at Marol MIDC, Andheri, Mumbai. RESPONDENTS Mr.V.J.Dixit, Senior Counsel with Mr.A.N.Nagargoje, for petitioners. Mr.V.H.Dighe, learned AGP for respondent no.3 Mr.S.S.Dande, learned counsel for respondent no.1 and 2 (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) RESERVED ON : 09/09/2009 PRONOUNCED ON : 23/09/2009 JUDGMENT : (Per A.V.Potdar, J.) 1. The facts which gave rise to file all these writ petitions are identical and based on the common set of facts as well as the legal proposition, hence all these petitions to be disposed of by one 4 common order. 2. Rule. Rule made returnable forthwith. By consent of the respective counsels, all the petitions are finally heard at the stage of admission. 3. In Writ petition No.5153/2009 filed under Article 226 of The Constitution of India, the petitioner has prayed for (a) issuance of writ of certiorari to quash and set aside the tender notice dated 29/07/2006 issued by the Regional Officer, M.I.D.C. (R-2) Latur in respect of inviting tenders for allotment of plot No.W-30, (b) for issuance of writ of certiorari to quash and set aside order dated 07/09/2006 passed by respondent no.2, (c) for issuance of writ of mandamus directing the respondents to allot plot No.W-30 to the petitioner for the expansion of his business as per the circular dated 18/03/2008 without compelling him to participate in the tender process with certain interim reliefs. In Writ petition No.5167/2009 filed under Article 226 of The Constitution of India, the petitioner has prayed for – (a) for issuance of writ of certiorari to quash and set aside the notice dated 29/07/2009 issued by the Regional Officer, M.I.D.C. Latur, the respondent no.2, inviting tenders for the allotment of plot no.B-47. (b) For issuance of writ of mandamus directing the respondents to allot plot no.B-47 to the petitioner for expansion of his business as per the circular dated 18/03/2008 without compelling the petitioner to 5 participate in the tender process with certain interim reliefs. In Writ petition no.5328/2009 filed under Article 226 of The Constitution of India, the group of petitioners have prayed for (a) for issuance of writ of certiorari to quash and set aside the advertisement dated 26/07/2009 issued by the Regional Officer, M.I.D.C. Latur, Nanded for calling the tenders for selling the plots extension no.1 and P15, extension no.3, extension no.7 and extension no.8 to 12 for commercial purposes as notified in the advertisement, (b) for issuance of a writ of certiorari to quash and set aside the conversion of industrial plots into commercial plots and for selling such small pieces of lands as per the terms of advertisement dated 26/07/2009, (c) for issuance of a writ of certiorari to consider the application/representation of the petitioners dated 16/02/2009 to the Area Manager, M.I.D.C. Osmanabad for allotment of lands/plots adjacent to their industrial units for expansion of their business. 4. At the outset, the facts in nutshell gave rise to file these writ petitions and to some extent are undisputed by the parties to the writ petition can be summarized as follows : (a) The petitioner in W.P. No. 5153/2009 had acquired plot no.B-41 in M.I.D.C. area at Latur on 14/10/2004 under the valid agreement executed with The Regional Officer, M.I.D.C. Latur where he is doing the business as L.P.G. Distributor of Bharat Gas Company and also assembling of LPG Stoves, kits and spare-parts etc. The petitioner is holding requisite license and legal permission to carry out the said business in the 6 said plot. Plot No.W-30 in the M.I.D.C. Latur area is adjacent to the plot occupied by the petitioner for his business. As the boundaries of the plot in occupation of the petitioner i.e. Plot no. B-41 and plot no.W-30 are having common boundaries, hence by an application dated 10/03/2006, the petitioner has prayed 2nd respondent for allotment of plot no.W-30 for expansion of his business on the terms and conditions including the price/premium to be paid as prescribed by the 2nd respondent. It appears that the request of the allotment of the plot W-30 was rejected by the respondent and decision is taken to allot the said plot by tender process. Accordingly the public tender notice was published in the Daily Lokmat dated 14/09/2006. The petitioner has participated in the said tender process. It is alleged that the said tender process was not finalized for last 2 years for certain technical reasons within the knowledge of the respondents. It is further alleged that without considering the claim of the petitioner, again the 2nd respondent published tender notice in Daily Newspaper Lokmat dated 26/07/2009 for allotment of Plot No.W-30 alongwith other plots in the M.I.D.C. area. The petitioner claimed his preferential rights for the allotment of plot no.W-30 having common boundaries with the plot occupied by him for the expansion of his business as per condition no.10 and 11 of the Government Resolution dated 18/03/2008 and as without considering his valid representation/application for allotment of the said plot as the tender notice is published. The present writ petition no.5153/2009 is filed by the petitioner therein. 7 5. (b) The petitioner in Writ petition no.5167/2009 is doing the business of Cement Products under the name and style Radhika Cement Products in plot no.W-17 in M.I.D.C. Latur since 05/02/2003 where he is preparing/manufacturing cement door frames, cement windows, cement fencing and cement blocks etc. He has entered into valid agreement with the respondent M.I.D.C. On 05/02/2003 under which the said plot was allotted to him by M.I.D.C. It appears that on 10/03/2006, the petitioner has applied for allotment of plot no. B-47 for the expansion of his business as the said plot is lying vacant since long and boundaries of the said plot are common with the boundaries of the plot in possession of the petitioner. It is alleged that without considering his preferential claim over the said plot B-47 on 26/07/2009, tender notice was published in the newspaper for the allotment of the plots in the M.I.D.C. Latur alongwith plot no. B-47. The petitioner claims that he has also received the letter from the Regional Officer, Latur on 27/07/2009 by which he was informed that even though he has applied for plot no.B-47 for expansion of his business as the tender notice is published in various daily newspapers on 26/07/2009, his application is filed and he was informed to participate in the tender process. It is alleged by the petitioner that in his application submitted to the 2nd respondent, he has shown his readiness in respect of the terms and conditions including the price of the plot, he is agreeable. By virtue of the circular dated 18/03/2008, as per condition no.10 and 11 of the Government Resolution dated 18/03/2008, this petitioner has claimed his preferential rights for the 8 allotment of the said plot in his favour as his application/ representation was not considered by the respondents, the petitioner claims that he was constrained to file the present writ petition. 6. (c) the petitioners in Writ Petition no.5328/2009 filed under Article 226 of The Constitution of India, have pleaded that they are in possession of Plot Nos. A-35, A-37, A-30 and A-40 in the M.I.D.C. area of Osmanabad since last number of years where they are running different industrial units. All the industrial units run by the petitioners are registered as Small Scale Industrial Units. It is alleged somewhere in the month of August 2008 that the M.I.D.C. has decided to develop the commercial plots on the backside of the existing plots in possession of these petitioners where they are doing their industrial activities which activities of the respondents were noticed by the petitioners. It is alleged that these petitioners met the Regional Officer of the M.I.D.C. Osmanabad somewhere in the month of Sept. 2008 and requested to re-visit and re-survey the plots proposed to be converted for commercial purpose. It is alleged that somewhere in the month of October 2008, all these petitioners have approached to the Regional Officer of M.I.D.C. Latur as well as the Deputy Engineer M.I.D.C. Osmanabad as they have shown their willingness to purchase the lands/plots behind their existing industrial units for the expansion of their industrial activities. As they were asked to submit the applications to that effect, the petitioners have submitted the applications known as “White forms” for the allotment of land with the Area Manager, M.I.D.C. Osmanabad 9 on 16/02/2009. It appears that somewhere in the month of May 2009, the Deputy Engineer M.I.D.C. Osmanabad inspected the said units run by the petitioners and also carry out the survey about the utilization of the existing plots and need of the additional area for these units. It is alleged that all of a sudden on 26/07/2009, notice was published in the Daily newspapers for sale of commercial plots at the backside of the plots in possession of these petitioners where they are running the industrial units. It appears that again on 28/07/2009, the petitioners made a representation to the Chief Executive Officer, M.I.D.C. Mumbai as well as Regional Officer, Latur and Osmanabad inquiring about their pending applications and also submitted further representation on 04/08/2009 as per the Government Notification dated 18/03/2008, as per condition no.10 & 11 as the plots adjacent to their existing industrial units, the petitioners have claimed the adjacent plots/plot of land for expansion of their industrial units. Even though these representations/ applications are pending, the advertisement was published by the M.I.D.C. Latur, hence the petitioners constrained to file the present writ petition. 7. In response to the notices issued in all these writ petitions, the respondents appeared and filed the affidavit in reply of one Ashok T. Gharde, the Regional Officer of M.I.D.C. Latur in all the 3 writ petitions. 8. The affidavit in reply filed in the first two petitions is identical 10 wherein it is contended that the petitioners have not carved out any legal right for entitlement of the plot for expansion purpose. Hence the petitioners are not entitled for the reliefs as claimed by them. It is further contended that the petitions should not be entertained as the petitioners are challenging the policy decision taken by the respondent M.I.D.C. which is communicated to the petitioners. The petitioner in the first petition has participated in the tender process of the year 2006. Merely by filing the applications, the petitioners can not claim their entitlement of allotment of the plot for expansion of their activities. It is further stated that the respondents have already invited sealed quotations for the allotment of plot No.W-30 (subject matter of the first petition) and B-47 (subject matter of the second petition.) According to these respondents, their decision to invite the tenders is not contrary to the circular dated 18/03/2008. It is further contended that the petitioners have not challenged the entire tender process, but challenged tenders in respect of their plots only. In the premise, the petitions are not maintainable. It is not disputed that the petitioner has filed an application for allotment of the plot for expansion of his business. According to the respondent, the communication dated 27/07/2009 is self-explanatory and prayed for the dismissal of the petition. 9. In the affidavit in reply filed in the 3rd writ petition, in addition to the grounds referred in the above paragraphs supra, it is contended that some applications were filed by the petitioners in this petition prior to the issuance of circular dated 18/03/2008 while the 11 representation dated 04/08/2009 is filed after the issuance of the said circular. In the premise, these applications or representation can not be considered. It is contended that Mhada has demanded certain lands for the development of residential/commercial purpose. Considering the further potentiality of the trends etc. from the second respondent, it is contended that the representations filed on 15/10/2008 and 04/08/2009 by the different organizations, at the same time, the petition is silent on the point whether the petitioners are member of these organizations or not as the writ petition is filed in the individual capacity by these petitioners. Second respondent has denied the contention in the petitions about the change of use/purpose from the industrial zone to the commercial/residential purpose. 10. Heard counsels Shri.V.D.Salunkhe and Senior advocate Shri.V.J.Dikshit for the petitioners in their respective petitions and Shri.Dande for the respondent M.I.D.C. in the light of the pleadings referred in all the paragraphs supra. 11. It is not under dispute that vide circular dated 18/03/2008 by the M.I.D.C., the policy decision is declared about the allotment of the plots in the industrial area of the M.I.D.C. other than Marol Estate, Chikalthana at Aurangabad estate without calling the tenders. In these guidelines, preferential right was given to the Industrialist whose plot is having common boundary with the plot demanded/requested for expansion for his existing business on 12 certain terms and conditions including the price of the claimed plot alongwith 10% in addition to the existing market rate as decided by the M.I.D.C. It is undisputed that the petitioners in all the petitions are running their industries on the leasehold plots allotted to them by the M.I.D.C. Further it is undisputed that the plot claimed by the petitioners in the first two petitions for the expansion of their business are having common boundaries of the claimed plot while the plots claimed by the petitioners in the 3rd petition are the plots situated behind their industrial units. They have also shown their willingness to pay 10% more than the existing price decided by the M.I.D.C. for the plots to be allotted. The petitioners in the 3rd petition have demonstrated how the M.I.D.C. will be at loss if the plots claimed by them are lease out for commercial purpose on the rates given by the M.I.D.C. instead of the rates decided by the M.I.D.C. for the industrial unit as per the advertisement to which the petitioners agreed and have shown their willingness to accept the lease. It is also to be noted that even though heavy reliance is placed on the communication dated 27/07/2009 that “decision is taken by the M.I.D.C. to allot the plot calling the tenders, hence the applications of the petitioners are treated as closed” Still the 2nd respondent have not come with the case that the circular dated 18/03/2008 or the policy thereunder is canceled but on the contrary 2nd respondent has pleaded that the decision taken by the M.I.D.C. is not contrary to the circular dated 18/03/2008. 12. During the course of submissions, our attention is drawn 13 towards the observations in the matter of Babaji Kondaji Garad and others versus Nasik Merchants Co-operative Bank Ltd, Nashik and others, reported in AIR 1984 Supreme Court 192 wherein it is observed in para no.15 that - “Section 73-B provides a legislative mandate. Rule 61 has a status of subsidiary legislation or delegated legislation. Bye-law of a co-operative society can at best have the status of an Article of Association of a company governed by the Companies Act, 1956 and the bye-laws of a co-operative society framed in pursuance of the provision of the relevant Act can not be held to be law or to have the force of law. They are neither statutory in character nor they have statutory flavour so as to be raised to the status of law. Now if there is any conflict between a statute and the subordinate legislation, the statute prevails over subordinate legislation and the bye-law if not in conformity with the statute in order to give effect to the statutory provision the Rule or bye-law has to be ignored. The statutory provision has precedence and must be complied with.” Further reliance is placed on the observations in case of Bhavnagar University versus Palitana Sugar Mill Pvt. Ltd., and others, reported in AIR 2003 Supreme Court 511, wherein in para no.42, it is stated that - 14 “We are not oblivious of the law that when a public functionary is required to do a certain thing within a specified time, the same is ordinarily directory but it is equally well settled that when consequence for inaction on the part of the statutory authorities within such specified time is expressly provided, it must be held to be imperative”. 13. From these submissions across the bar and the correspondence placed in our hand, it is clear that the policy under circular dated 18/03/2008 is still in existence and the said circular to be read as a whole and not in part. The 2nd respondent have published the tender notice in respect of the plots claimed by these petitioners without considering the applications/representations submitted by these petitioners. It is not the contention of the respondent MIDC that in the communication dated 27/07/2009 they have informed that due to cancellation of circular dated 18/03/2008, the application/representation of the petitioners are not considered and rejected which clearly indicate that the existence of the said circular dated 18/03/2008. Considering the factual aspect of the effect of the said circular dated 18/03/2008 which is to be given to the application/representation of the petitioners by considering these application/representation in accordance with Law. 14. In the result, all the writ petitions succeeds. Tender notice dated 26/07/2009 is hereby quashed in respect of the allotment of the subject plots of the writ petitioners. We hereby direct 2nd 15 respondent M.I.D.C. to consider the application/representation of the petitioners in accordance with Law within the period of 4 weeks from the date of this order. 15. Rule is thus made absolute as indicated above. All the writ petitions stand disposed of accordingly with no order as to costs. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/SEP 2009/wp5153-09