W J ALCOCK AND CO PVT LTD Vs. EXECUTIVE DIRECTOR WEST BENGAL SMALL INDUSTRIES DEVELOPMENT CORPORATION LTD

JUDGEMENT

(1.) The petitioner, a private limited company, by virtue of a registered indenture of lease dated 14.8.69 executed between the Cottage and Small Scale Industries on behalf of the State of West Bengal and the petitioner, was granted lease for a period of 99 years commencing from 1.9.68 in respect of a shed Y-30 in an industrial estate. The said lease deed which has been annexed to the writ petition provided for payment of rent. Clause 3B of the lease deed also provided that if the rent was unpaid for six months after becoming payable or if the premises was not used for a continuous period of six months for the purposes mentioned, the lessor or the Government could at any time determine the lease and reenter the premises. Clause 3(vi)(b) of the said lease stipulated that the lessee, that is, the petitioner after expiry of 30 years from the date of commencement of the lease and after having fully paid all the dues would have the option to acquire ownership of the shed and structures. Thereafter, on compliance of certain conditions the petitioner would be deemed to be the full and absolute owner of the shed. It is stated that the petitioner had deposited arrear rent for the first 30 years out of 99 years of the tenure of the lease. On 5.2.2001, in accordance with the terms of the lease, the petitioner exercised its option to acquire ownership of the said shed. Pursuant to the option exercised, the Officer on Special Duty on 13.8.2002 addressed a letter to the Managing Director, West Bengal Small Industries Development Corporation Limited (for short "the WBSIDC") requesting him to take necessary action as per the terms and conditions of the lease. Failing to receive reply, the petitioner on 18.2.2003 addressed a letter praying for ownership of the shed, enclosing therein copy of the letter dated 13.8.2002, copy of the SSI registration certificate, names of the directors and the volume of turn over. Thereafter, on 11.4.2003 the respondent No. 1 requested the petitioner to liquidate the outstanding dues on account of rent and interest upto 31.3.2003. Request was also made to submit the SSI registration certificate, the details of share holding pattern, annual production return submitted to the DIC and form 32, if there was any change of directorship. On 27.5.2004, the respondent No. 1 again requested the petitioner to submit necessary papers along with the payment. On 17.6.2004, in reply, it was intimated that necessary documents had already been submitted. However, the respondent No. 1 by a letter dated 27.9.2004 rejected the request of the petitioner exercising option on the ground that the unit was reported to be lying non-functioning for more than one year and notice in form 'A' terminating the lease and intimating to vacate the shed was served on the petitioner. The petitioners, being aggrieved by the said letter dated 27.9.2004, and the form 'A1 moved the writ petition.

(2.) Pursuant to directions affidavits have been filed. On 18.10.2004 an interim order was passed. It was submitted by the respondents that though interim order had expired, the respondents have not taken any action since the writ petition is pending.

(3.) Mr. Soumen Sen, learned Advocate for the petitioner, reiterating the statements in the writ petition submitted that the letter dated 27.9.2004 is not a speaking order. According to him, there is no indication in the letter as to how the respondents came to the conclusion. Moreover, as the option for ownership for the shed had been exercised in 2001, the said letter and the notice are illegal. According to Mr. Sen, from February, 2001 till June, 2004 there was no allegation by the respondents that the unit was not functioning. Reference was made to the certificate dated 11.6.91 issued by National Small Industries Corporation the letter dated 10.2.2000 issued by the Defence Research and Development Organisation and the letter dated 21.1.2004 issued by Naval Materials Research Laboratory in support of the claim that the unit was registered and functioning. Further, it was argued that the statements made in paragraphs 8 to 18 which disclose certain facts have not been dealt with by the respondents in paragraph 3 of the affidavit in opposition. In the said paragraph of the opposition there is no specific denial of the facts stated in the writ petition. According to him, it is an omnibus denial and is hit by the principles of doctrine of non-traverse. Mr. Sen relied on the judgements of Sushanta Kumar Basak v. State of West Bengal & Ors., reported in (1984)2 Cal LJ 19 and Sahu Jain Ltd. v. Deputy Secretary Ministry of Finance & Ors., reported in 70 Cal WN 399 in support of his contentions.