TMI Blog2020 (5) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... nes 'Co-developer' means a person who, or a State Government which, has been granted a letter of Approval under sub-section (12) of section 3 by the Central Government. The contentions raised by the petitioner that provision of Section 10 would be applicable for the suspension and transfer of letter of Approval as a co-developer would not be applicable in the facts of the case as the petitioner has lost the status of codeveloper pursuant to the transfer of plot in question to the respondent No.4 in the auction held by the SIDBI under the provisions of the Securitisation Act - it would be necessary to refer to the provisions of Section 35 of the Act, which provides for finality of the actions taken under the Securitisation Act. Moreover, reference to Rule 2(s) of the Rules which prescribes the procedure for the purpose of suspension and transfer of letter of approval as provided in Section 10 of SEZ Act would also be of no assistance to the petitioner as no action is required to be taken under the provisions of Section 10 of the SEZ Act as the same would not be applicable. The contentions raised on behalf of the petitioner, relying upon Section 10 of the SEZ Act read w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, hearing and final disposal of the present Application, stay the execution, implementation and operation of the impugned decision on Proposal No. II under Item No.82.9 by the Respondent No.1 in 82nd Meeting held on 04.04.2018, in the ends of justice. C. Grant ad-interim relief in terms of Paragraph No.23(b) D. Pass such other and further orders as may be deemed just, fit and proper looking to the facts and circumstances of the case in the ends of justice. And for this act of kindness and justice, the Applicant, as in duty bound, shall pray for ever. 2. The brief facts giving rise to this petition are as under : 2.1 The petitioner which is a Company incorporated under the provisions of the Companies Act, 1956 is filed through its director. 2.2 The respondent No.3- Dahej SEZ Ltd. was granted formal approval for development of Special Economic Zone (for short SEZ ) in Dahej area pursuant to Notification No. F-2/9/2003-EPZ, dated 20.12.2006 for setting up multi product Special Economic Zone at Village Dahej, Taluka: Vagra, District : Bharuch under the provisions of the Special Economic Zones Act, 2005 (for short 'the SEZ Act'). 2.3 In the year 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d proceedings under the Securitisation Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short the Securitisation Act ) were initiated by the SIDBI against the petitioner. The petitioner therefore, filed Securitisation Application being SA No.84 of 2014 under Section 17 of the Securitisation Act before the Debt Recovery Tribunal-I, Ahmedabad. The respondent no.3- Dahej SEZ Ltd. also preferred an application for joining party seeking certain clarifications, which was disposed of by the Debt Recovery Tribunal vide order dated 20.02.2018. Pursuant to the Notice under Section 13(2) dated 06.04.2014 and Notice under Section 13(4) dated 18.06.2014, issued by the SIDBI under Secularization Act, seeking recovery of an amount of ₹ 13,31,88,723.70/- from the petitioner, the SIDBI proceeded to take possession of the property of the petitioner in the SEZ by addressing a letter dated 18.06.2014, to The respondent no.3- Dahej SEZ Ltd. The SIDBI took the symbolic possession of the property of the petitioner on 26.02.2014 and thereafter, started proceeding to auction the same as per the provisions of the Securitisation Act. It appears that the SIDBI mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. 2.13 It appears from the record that thereafter, co-developer agreement was executed on 23rd March 2018 between the respondent no.3- Dahej SEZ Ltd. and the respondent No. who was successful bidder in the auction held by SIDBI. 2.14 It appears that the respondent No.1Board, thereafter, granted approval of co-developer status to the respondent No.4 on 06.04.2018 subject to certain conditions, which included submissions of formal amendment to the sale certificate issued by SIDBI to the Zonal Development Commissioner and cancellation of Co-developer agreement with the petitioner. 2.15 The petitioner being aggrieved and dissatisfied has challenged the approval granted by the respondent No.1-Board to the proposal to grant co-developer status to the respondent No.4 in the SEZ at Dahej. 2.16 It appears that thereafter, the necessary follow up actions are taken by the respondent Nos.3 and 4 and sale certificate was amended to incorporate the stipulated conditions in the resolution of the Board of Approval. 3. Heard Mr.Ravish D. Bhatt, the learned advocate for the petitioner, Mr.Kamal Trivedi, the learned senior advocate assisted by Mr.Abhishek M. Mehta, the learned advocat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned advocate for the petitioner, thereafter, referred to Section 13 of the SEZ Act to submit that constitution of approval committee and powers of approval committee as per section 14 of the approval committee do not lay down any procedure for cancellation of letter of approval. It was therefore submitted that in view of the information given by the respondent No.3 that revised codeveloper agreement with the respondent No.4 mentions about the transfer of assets and liabilities of the petitioner to the new co-developer and the codeveloper agreement with the petitioner, which was required to be cancelled is contrary to the provisions of the Act and the Rules as no agreement could have been entered between the respondent Nos. 3 and 4 prior to the suspension of transfer/cancellation of the letter of approval by the respondent No.1 issued in favour of the petitioner. 4.4 It was submitted that when the matter with regard to the legality of the sale certificate issued by SIDBI was subjudice before the Debt Recovery Tribunal, then, the respondent No.1 was not justified in stipulating a condition for amendment in the sale certificate. It was further submitted that cancellation of Co-de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.4 without following procedure as prescribed under Section 10 of the SEZ Act. 4.8 It was further pointed out that the amended certificate issued by the SIDBI on 20th January 2017 in favour of the respondent No.4 is set aside by Debt Recovery Tribunal-1, Ahmedabad vide order dated 15.07.2019. It was therefore, submitted that as on today, only the certificate dated 07.01.2017 is in existence and therefore, the respondent No.4 has failed to comply with the condition prescribed in the impugned order. 4.9 Learned advocate for the petitioner submitted that before entering into any agreement of Co-developer with the respondent No.4, the respondent No.3Dahej SEZ Ltd. was required to first to suspend the petitioner as a co-developer and thereafter, was required to cancel the co-developer agreement after affording opportunity of being heard to the petitioner as per provision of Section 10 of the SEZ Act. It was therefore, contended that the codeveloper agreement dated 02.08.2017 executed between the respondent Nos. 3 and 4, which is anterior in point of time could be valid only if it is preceded in point of time by the decision of the Board of Approval in conformity with the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that in view of proceedings under Securitisation Act by SIDBI, there was legitimate transfer of assets, which has not been set aside by any competent forum. 5.5 The learned senior advocate would submit that the decision of the respondent No.1Board, is just legal and proper as it is for the purpose of granting approval to the respondent No.4 as co-developer and not for cancellation of agreement between the petitioner and respondent No.3. The approval of co-developer status in favour of the respondent No.4 relates to codeveloper agreement between the respondent No.3 and the respondent No.4 which is not challenged by the petitioner. Therefore, only to challenge the decision of the Board of Approval to grant status of codeveloper to the respondent no.4 is nothing but an abuse of process of law. 5.6 It was further submitted that the co-developer agreement executed earlier between the petitioner and the respondent No.3 had become redundant/ superseded in view of the subsequent co-developer agreement with the respondent No.4 in view of sale of property in question by SIDBI. It was further submitted that the respondent No.4 has already been granted electricity connection in its nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of both the Acts. (i) Section 2(f), (g), (zc) and Section 3, 10, 13,14, 16 and 51 of the SEZ Act reads thus : Section 2. In this Act, unless the context otherwise requires,- (f) Co-Developer means a person who, or a State Government which, has been granted by the Central Government a letter of approval under sub-section (12) of section 3; (g) Developer means a person who, or a State Government which, has been granted by the Central Government a lette DRT act of approval under sub-section (10) of section 3 and includes an Authority and a Co-Developer; (zc) Unit means a Unit set up by an entrepreneur in a Special Economic Zone and includes an existing Unit, an Offshore Banking Unit and a Unit in an International Financial Services Centre, whether established before or established after commencement of this Act; 3. Procedure for making proposal to establish Special Economic Zone.- (1) A Special Economic Zone may be established under this Act, either jointly or severally by the Central Government, State Government, or any person for manufacture of goods or rendering services or for both or as a Free Trade and Warehousing Zone. Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of approval under sub-section (1), the Special Economic Zone of the Developer referred to in sub-section (5) shall vest in the Administrator under sub-section (2) for a period not exceeding one year or up to the date on which his letter of approval for such Special Economic Zone is transferred, whichever is earlier, in accordance with the provisions contained in sub-sections (7) and (9), as the case may be. (7) Where the Board has given notice for suspension of letter of approval under subsection (5), the Developer may, after prior approval of the Board, transfer his letter of approval to any person who is found eligible by the Board for grant of such approval. (8) If at any time, it appears to the Board that the purpose of the order appointing the Administrator has been fulfilled or that for any reason it is undesirable that the order of appointment should remain in force, the Board may cancel the order and thereupon the Administrator shall be divested of the management of the Special Economic Zone which shall, unless otherwise directed by the Board, again vest in the person, being the Developer, in whom it was vested immediately prior to the date of appointment of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise the powers and perform the functions specified in section 14. 14. Powers and functions of Approval Committee. (1) Every Approval Committee may discharge the functions and exercise the powers in respect of the following matters, namely:- (a) approve the import or procurement of goods from the Domestic Tariff Area, in the Special Economic Zone for carrying on the authorised operations by a Developer; (b) approve the providing of services by a service provider, from outside India, or from the Domestic Tariff Area, for carrying on the authorised operations by the Developer, in the Special Economic Zone; (c) monitor the utilisation of goods or services or warehousing or trading in the Special Economic Zone; (d) approve, modify or reject proposals for setting up Units for manufacturing or rendering services or warehousing or trading in the Special Economic Zone [other than the grant of licence under clause (e) of sub-section (2) of section 9] in accordance with the provisions of sub-section (8) of section 15; Provided that where the Approval Committee is unable to decide whether a particular process constitutes manufacture or not, it shall refer the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct by virtue of any law other than this Act. (ii) Rule 2(s) of the SEZ Rules, 2006 reads thus : 2. Definitions.- (1) In these rules, unless the context otherwise requires,- (s) infrastructure means facilities needed for development, operation and maintenance of a Special Economic Zone and includes industrial, business and social amenities like development of land, roads, buildings, sewerage and effluent treatment facilities, solid waste management facilities, port, including jetties, single point moorings, storage tanks and interconnecting pipelines for liquids and gases, Inland Container Depot or Container Freight Station, warehouses, airports, railways, transport system, generation and distribution of power, gas and other forms of energy, telecommunication, data transmission network, information technology network, hospitals, hotels, educational institutions, leisure, recreational and entertainment facilities, residential and business complex, water supply, including desalination plant, sanitation facility; (iii) Section 35 of the Securitisation Act reads thus: 35. The provisions of this Act to override other laws.-The provisions of this Act s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tance to the petitioner as no action is required to be taken under the provisions of Section 10 of the SEZ Act as the same would not be applicable. The contentions raised on behalf of the petitioner, relying upon Section 10 of the SEZ Act read with Section 2(s) is without any basis. In the facts of the case as the respondent No.3 has only given effect to the auction sale conducted under the provisions of the Securitisation Act by the SIDBI, no show cause notice as required to be issued to the petitioner by invoking Section 10 of the SEZ Act was required because the petitioner was very much aware about the proceedings initiated under the Securitisation Act by the SIDBI. As the petitioner had challenged the action under Securitisation Act before the Debt Recovery Tribunal, and having failed in such action of challenge to get any interim order or final order, the petitioner cannot now challenge the action of the respondent No.1 granting request of approval status of co-developer in favour of the respondent No.4. 11. The contentions raised on behalf of the petitioner are therefore required to be rejected as it was only last attempt to see that the auction sale effected in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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