Dipankar Datta, J.
1. The first petitioner is a company incorporated under the Companies Act, 1956 (hereafter the company). It has been carrying on business and has a hotel-cum-resort at plot Nos. H and H-3, Sector IV, Falta Industrial Growth Sector, Falta in the district of South 24 Parganas (hereafter the said centre). The second petitioner is a director of the company.
2. It appears from the document being Annexure R-4 to the counter affidavit filed by and/or on behalf of the West Bengal Industrial Infrastructure Development Corporation (hereafter the Corporation) that the petitioners had applied for allotment of a plot of land in the said centre on 2.7.2004. They proposed to run a hotel from the plot of land to be allotted in their favour. Upon receipt of such application, the Corporation allotted .50 acre of land at Sector IV of the said centre, vide allotment letter dated 2.2.2006 on terms and conditions mentioned therein. It is not in dispute that the petitioners having complied with the terms and conditions mentioned in the offer of allotment, the building for the hotel was constructed and the petitioners are carrying on business therefrom.
3. In this petition presented before the Court on 27.8.2009, the petitioners have questioned allotment of a plot of land by the Corporation, adjacent to their land, in favour of M/s. Mcmet India Limited, respondent No. 9 (hereafter the disputed plot).
4. According to Mr. Ghosh, learned Advocate appearing for the petitioners, Sector IV of the said centre has been earmarked by the Corporation for residential use. Believing in such representation, the petitioners had applied for allotment of land to set up a hotel and on acceptance of the offer started their business. Had the petitioners been told at the very beginning that the adjacent plots would be allotted for setting up industries, they would either not have accepted the allotment or in the alternative would not have invested substantial quantum of money required to spruce up the hotel. If at this stage an industry which the respondent No. 9 proposes to set up on the disputed plot is allowed, that would be contrary to the development plan prepared by the Corporation whereby Sector IV had been earmarked for residential use. He referred to the definition of 'building', 'industrial area', 'industry', and 'industrial estate' as defined in the various Sub-sections of Section 2 of the West Bengal Industrial Infrastructure Development Corporation Act, 1974 (hereafter the Act) as well as provisions contained in Sections 13 and 14 thereof detailing the functions and general powers of the Corporation and contended that without earmarking Sector IV as an industrial area in the manner required by the statute, the Corporation by allowing respondent No. 9 to set up an industry within a residential area has acted illegally, wrongfully and unreasonably. The doctrine of promissory estoppel, he contended, would squarely apply in the facts and circumstances of the case since the petitioners by acting on the representation of the Corporation had altered position to their detriment.
5. He produced a plan before the Court in support of his contention that the Corporation acted illegally in allotting the disputed plot in favour of the respondent No. 9. It was contended by him that the disputed plot in terms of the plan is earmarked for buildings for the higher income group and, therefore, could not have been allotted to set up an industry.
6. It was further contended by him that though the company was allotted plot of land in the residential area comprised in Sector IV to set up a hotel, the Corporation ought not to take advantage of the situation and contend that since the company has been carrying on business in a residential area, it has no right to question allotment of plot of land in favour of the respondent No. 9 for setting up an industry for the simple reason that a hotel is really an extension of residence facilities and, therefore, must be viewed differently from a factory that the respondent No. 9 proposes to set up on the disputed plot. He invited the attention of the Court to the information that is available on the website of the Corporation where even as on 31.3.2009, Sector IV has been shown as a residential area whereas Sector III has been shown as industrial area.
7. Finally, he urged that if the respondent No. 9 sets up industry on the disputed plot, that would in all likelihood be a potential source of pollution. The respondent No. 9 has already been hauled up by the West Bengal Pollution Control Board for not adhering to pollution control norms. The factory, once it comes up in a residential area, would have deleterious impact not only on the boarders of the hotel run by the company but also on the residents of the locale and, therefore, the Court's intervention is called for in the circumstances. In support of the submission that mushrooming of industries in a residential area would have deleterious effect on society, Mr. Ghosh relied on paragraphs 16, 42, 48, 51, 57 and 68 of the decision reported in : (2004) 6 SCC 588, M.C. Mehta v. Union of India, and fervently appealed to the Court to direct the Corporation to rescind, cancel and/or withdraw the allotment made in favour of the respondent No. 9 to enable the petitioners to survive and carry on business, with a further direction to the Corporation to allot suitable alternative plot of land to the respondent No. 9 in the areas which have been earmarked as industrial area in terms of provisions contained in the Act.
8. The petition has been opposed by Mr. Kar, learned Advocate for the Corporation. He has placed the counter-affidavit as well as the supplementary counter affidavit in some details and has contended that the petitioners cannot approbate and reprobate. According to him if at all Sector IV is earmarked for residential area, the company could not have been allotted any plot of land for commercial purposes. He further contended that the entire area comprising the said centre is meant for setting up industries. However, having regard to the fact that there was no provision for housing and/or residence of the people connected with the industries that would come up within the said centre, the Corporation had earmarked certain areas for construction of residences. It was his categorical submission that there is no independent residential area within the said centre; whatever is there is connected with the industries that have been developed. At no point of time the petitioners were given the impression that Sector IV comprised residential area only and that the surrounding plots would only be allotted for residential use; therefore, invocation of the doctrine of promissory estoppel does not arise.
9. It was further contended that the petitioners did not disclose in the petition that prior to allotment of the disputed plot in favour of the respondent No. 9, the petitioners had prayed for allotment thereof in their favour. However, the Corporation rejected the petitioners' prayer. According to him the petitioners having expressed interest to take more land for expansion of their business have no right in law to claim that others should be prevented from setting up industries.
10. He countered the submission regarding requirement of 'industrial area' being declared by issuance of notification in the gazette by contending that there was no such requirement on facts and in the circumstances of the present case. According to him, the decision conveyed by the Commerce and Industries Department of the Government of West Bengal, contained in Memo dated 25.3.1994 (Annexure R-2 of the counter affidavit) is sufficient and adequate and that the contention advanced on behalf of the petitioner is misconceived and thus liable to be overruled.
11. Referring to the plan produced by Mr. Ghosh, Mr. Kar submitted that he had no instructions thereon. However, he hastened to add that even if the plan is treated to be correct, the petitioners cannot derive any advantage out of it for the plot of land allotted in their favour was also meant for residential buildings for the higher income group.
12. Since no legal right of the petitioners had been infringed, Mr. Kar submitted that the writ petition ought to be dismissed.
13. Mr. Bose, leaned Advocate representing the Pollution Control Board in his usual fairness adopted a neutral stand. He assured the Court that no industry set up in the centre would be allowed to flout pollution control norms. If at all the respondent No. 9 adheres to the statutory provisions, necessary 'consent to operate' would be issued at the end of the Board but any violation of law shall be sternly dealt.
14. None appeared for the State and the respondent No. 9. Their versions therefore were not available to the Court for deciding the dispute raised herein.
15. This Court has considered the rival submissions. The basic question that arises for determination is whether the Corporation was justified in allotting the disputed plot in favour of the respondent No. 9 to set up an industry or not. In the process, the ancillary question as to whether declaration of any industrial area by the Government is required to be published in the Official Gazette or not would also require an answer in view of the contention of Mr. Kar.
17. This Court proposes to answer the ancillary question first.
18. The definition of 'industrial area' in the Act reads:
2. In this Act, unless the context otherwise requires,-..
8) 'industrial area' means any area declared to be such by the State Government by notification:
Provided that before declaring any area, falling wholly or partly within the jurisdiction of a Municipal Corporation, Municipality, Gram Panchayat, Notified Area Authority or Development Authority (constituted under any law for the time being in force including the Durgapur Development Authority), as industrial area, the State Government shall consult the concerned Municipal Corporation , Municipality, Gram Panchayat, Notified Area Authority or Development Authority, as the case may be;
19. The words 'industrial area' would, therefore, have the same meaning as defined in Sub-section (8) of Section 2 of the Act wherever they occur in the Act, unless the context in which the words appear require a different meaning.
20. The words 'industrial area' have been used, inter alia, in Sections 13, 14 and 23 of the Act. Regard being had to the context in which the said words have been used in the said provisions, this Court finds no reason to attribute a meaning different from its definition provided in Section 2(8). Since the context does not require it to be differently read, this Court is unable to accept Mr. Kar's contention that no gazette notification was required to be published before certain areas of Sector IV were used as industrial area. This is indeed a flaw and the Corporation ought to take care to comply with the requirements of the statute in future.
21. In view of the above answer this Court would now consider whether by reason of the mere fact that gazette notification was not published, anything turns in favour of the petitioners or not.
22. The answer has to be in the negative. The petitioners obtained allotment of plot of land in the said centre without the area having been declared to be an industrial area by publication in the Official Gazette. Being the beneficiary of non-compliance of a statutory provision, the petitioners cannot now raise it as a ground to question the action of the Corporation.
23. Now, it would be convenient to consider the basic question involved herein.
24. The doctrine of promissory estoppel exercised consideration of the Supreme Court in various reported decisions. Reference may be made to the decisions reported in : (1979) 2 SCC 409: Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., : (1986) 2 SCC 365: Bakul Cashew Co. v. STO, : (1995) 1 SCC 274: Kasinka Trading v. Union of India, : (2002) 2 SCC 188: Sharma Transport v. Govt. of A.P., : (1996) 5 SCC 468: DCM Ltd. v. Union of India, (1997) 3 SCC 398: Shrijee Sales Corporation v. Union of India, : (1997) 7 SCC 251: Pawan Alloys Castings (P) Ltd. v. UPSEB, and : (2005) 1 SCC 625: Bannari Amman Sugars Ltd. v. Commercial Tax Officer.
25. All these decisions have been considered in the recent decision of the Supreme Court reported in 2010 (1) Supreme 161, State of Bihar and Ors. v. Kalyanpur Cement Ltd., wherein it has been held as follows:
26. In our opinion,...in order to invoke the aforesaid doctrine, it must be established that (a) that a party must make an unequivocal promise or representation by word or conduct to the other party (b) the representation was intended to create legal relations or affect the legal relationship, to arise in the future (c) a clear foundation has to be laid in the petition, with supporting documents (d) it has to be shown that the party invoking the doctrine has altered its position relying on the promise (e) it is possible for the Government to resile from its promise when public interest would be prejudiced if the Government were required to carry out the promise (f) the Court will not apply the doctrine in abstract....
26. Bearing in mind the above tests, the issue has to be examined.
27. Turning to the facts of the case, this Court finds that the petitioners had not applied for allotment of plot of land in any particular sector of the said centre, but it had mentioned about the proposed site being located in Sector IV while giving details thereof in one of the enclosures to its application. In so far as its prospect as mentioned in such enclosure is concerned, the petitioners stated as follows:
1. Site is in the River Bank of Hooghly, Land taken from West Bengal Industrial Infrastructure Development Corporation, Govt. of West Bengal; It is eco-friendly tourist spot with green lashes and people are coming through full winter season and every weekend for outing also for film shooting and various schools are coming for excursions also.
2. It is surrounded with Falta Special Economic and Falta Industrial growth center having optimum Nos. of companies and newly coming up sector No. five with the expectation to start the various type of new Industry.
3. Moreover near future Kulpi Industrial/Special Economic Zone and Port is coming up and also its very close to Haldia which can give the business very good.
28. The application of the company was processed and by letter dated 5.8.2004, an area of about 1.50 acres was allotted. Subsequently .50 acres of land was offered on 'as is where is' basis for expansion of the project. In none of the correspondences, the Corporation represented that Sector IV comprised of residential area only. It is also not evident from any of the letters of the petitioners, either prior to allotment or subsequent thereto, that they laboured under any impression given to them by the Corporation that the plots adjacent to the plot allotted in favour of the company would only be allotted for residence purposes or for running of business of hotel/guest house. Nothing prevented the petitioners from enquiring as to whether the plots of land surrounding the plot of land offered to them would be allotted later on for industrial use or not while they accepted the offer of the Corporation.
29. In the considered view of this Court, the doctrine of promissory estoppel would have no application having regard to the petitioners' own conduct. The company had sought for allotment of a plot of land for setting up a hotel. 'Industry' is defined in Section 2(9) of the Act to mean
any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen, and the word 'industrial' shall be construed accordingly;
30. There can be no two opinions that the company was allotted land for commercially exploiting the same. According to the definition of industry in the Act, the company can well be regarded to run an industry in the said centre. If Sector IV was meant to be used entirely for residential purposes, no allotment could have been made in favour of the company since it intended to use the same for 'industrial' purpose as defined in the Act. That a hotel may qualify to be an extension of residential facilities is immaterial viewed in the context of the nature of legislation creating the Corporation and conferment on it of statutory powers and functions to regulate use of industrial area in the said centre. The company having obtained allotment of a plot of land in a residential area cannot now turn a volte-face and contend that the disputed plot should not be allotted in favour of the respondent No. 9 for setting up an industry. The company being the beneficiary of the action taken by the Corporation to allot a plot of land for industrial use in terms of the aforesaid definition in a residential area cannot be heard to say that allotment of a plot of land by the Corporation to another company for industrial use must be held to be bad on application of the doctrine of promissory estoppel as well as on the failure to publish gazette notification declaring the area as one earmarked for industrial use.
31. In fact, from the pleadings it is clear that no foundation has been laid for concluding that a clear, specific and unambiguous representation had been made by the Corporation to the company that the plots of land adjacent to the plot allotted in its favour would never be allotted in future other than for residential use and that acting on such impression they had changed their position to their detriment and prejudice. The basic foundation for invoking the doctrine of promissory estoppel is thus wanting.
32. I hold that the company having obtained an undue benefit from the Corporation and having voluntarily changed its position to fully utilize the benefit obtained to its advantage cannot by invoking the principle of promissory estoppel prevent the Corporation from granting similar benefit to others.
33. The contention of Mr. Ghosh that Sector IV is earmarked for residential area only (finding support from the information downloaded from the website, appearing at page 34 of the petition) and, therefore, allotting the disputed plot for setting up an industry would be contrary to the representation made to the public at large has failed to impress. Information displayed on the website of the Corporation did indicate that Sector IV has been earmarked for residential use but that did not deter the company to pray for allotment of the disputed plot in its favour for expansion of the existing hotel. It is, therefore, clear that instead of the Corporation having made any representation to the company that the surrounding plots of land would not be put to industrial use, the suggestion of the petitioners that the land comprised in Sector IV is not entirely to be used for residential use but could also be put to commercial or industrial use and like allotment made earlier in its favour the disputed plot may also be allotted is manifest.
34. Nevertheless, it is observed from the plan that was produced in Court that Sector IV is not entirely for residential purpose; specific plots of land have been earmarked for guest houses, hotels, cinema houses, industries as well as residential buildings. Construction in respect thereof are either complete or in progress. As the name would suggest, the said centre has been conceived of bearing in mind steps to be taken for growth of industries. If at all Sector IV plots had been earmarked for residential use, the company could never have been allotted the plot from where it is running its business presently.
35. Another striking feature of the case is that the company itself had sought for allotment of the disputed plot. The petitioners have not disclosed the fact of rejection of their prayer in their pleadings and appear to have presented the petition to stall the industry to be set up by the respondent No. 9 by withholding facts.
36. The decision in M.C. Mehta (supra) was rendered in completely different circumstances and the ratio laid down therein would have no application in a case of the present nature.
37. For reasons aforesaid, this Court finds no merit in this petition. The same stands dismissed without, however, any order as to costs.
38. Urgent photostat certified copy of the judgment and order shall be given to the applicants within four days from date of putting in requisites therefor.