IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
Friday, the 17th day of June 2022 / 27th Jyaishta, 1944
WA NO. 126 OF 2022
AGAINST JUDGMENT DATED 05.07.2021 IN WP(C) NO.15361/2020 OF THIS COURT
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APPELLANTS/RESPONDENTS IN W.P.(C):
1. THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE,PALAKAD- 678001.
2. THE DIRECTOR OF INDUSTRIES & COMMERCE ,VIKAS BHAVAN
P.O.,THIRUVANANTHAPURAM - 695033.
3. STATE OF KERALA,REPRESENTED BY THE SECRETARY TO
GOVERNMENT,DEPARTMENT OF INDUSTRIES, SECRETARIAT
,THIRUVANANTHAPURAM - 695001.
BY SPECIAL GOVERNMENT PLEADER SRI.P.SANTOSH KUMAR
RESPONDENT/WRIT PETITIONER IN W.P.(C):
MAX PACK TAPES AND PRODUCTS PVT .LTD.,(FORMERLY A. P. TAPES AND
PRODUCTS INDIA PVT LTD) , VIII/715-A,NIDA,KANJIKODE P. O. ,PALAKAD-
678621, REPRESENTED BY ITS MANAGING DIRECTOR,SRI ABRAHAM JOSE, S/O
A. D. JOSEPH .
BY ADV.SRI. JACOB SEBASTIAN
Prayer for interim relief in the Writ Appeal stating that in the
circusmtances stated in the appeal memorandum, the High Court be pleased
to stay the operation and implementation of Judgment dated 05.07.2021 in
WP(C) No.15361/2021, pending disposal of the Writ Appeal.
This Writ Appeal coming on for orders on 17/06/2022 upon perusing
the appeal memorandum, the court on the same day passed the following:
P.T.O.
EXT.P1: A TRUE COPY OF THE ORDER OF APPROVAL
DATED 22.03.2021 ISSUED TO THE PETITIONER
EXT.P4:A TRUE COPY OF THE LETTER DATED 30.05.2007
OF GENERAL MANAGER.
EXT.P5:A TRUE COPY OF THE REQUEST DATED 09.06.2007
OF THE PETITIONER.
EXT.P25:A TRUE COPY OF THE ORDER DATED JUNE 18, 2020
ISSUED BY THE SECOND RESPONDENT.
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S. MANIKUMAR, C. J. & SHAJI P. CHALY, J.
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W. A. No. 126 of 2022
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Dated this the 17th day of June, 2022
ORDER
S. Manikumar, C. J.
Before the writ court, petitioner has sought for the following reliefs:-
"i. Quash exhibits P13 and P25 issuing a writ in the nature of certiorari;
ii. declarer that the change of name or the reconstitution of the board of directors of a private limited company which is the owner of a land will not legally amount to change of ownership of land;
iii. issue a writ in the nature of mandamus commanding the first respondent to ratify the change of name of the petitioner company (Max Pack Tapes & Products Pvt. Ltd.) as well as the reconstitution of the board of directors with effect from 30 th of May 2007 and make consequent changes in the land allotment registrar maintained by him."
2. Short facts leading to the filing of the writ petition are as hereunder:-
W. A. No. 126 of 2022 -2-
a) According to the petitioner, petitioner is an SSI unit established in new Industrial Development area at Kanjikode, Palakkad. Initially, the unit was a partnership and it was allotted with 75 cents of industrial land in the new industrial development Area in 2001. The full purchase price for the land was paid and the DIC issued a 'full value paid certificate' with permission to mortgage the industrial land allotted.
b) Petitioner has submitted that after sometime, the unit was changed into a private limited company and the 1 st respondent by Ext. P1 order dated 22.03.2001, approved the constitution of the company and change of ownership. In the year 2007, the name of the company was changed and the board of directors of the company was reconstituted. By Ext. P4 dated 30.05.2007, the same was acknowledged by the 1st respondent.
c) Petitioner has further submitted that later, on adopting a stand that reconstitution of the director board and name change of a company would amount to change of ownership, the 1st respondent has been harassing the petitioner company threatening resumption of land. W. A. No. 126 of 2022 -3-
3. Ext. P5 order of the General Manager, District Industries Centre, Palakkad dated 18.06.2020, which is the subject matter of challenge, is reproduced:-
"An extent of 75 cents of industrial land comprised in Sy. No. 356/2pt, 358/2, 3, 5 pts of Pudussery Central Village in NIDA, Kanjikode of Pudussery Central Village of Palakkad Taluk & District allotted in the name of the unit M/s. A. P. Tapes & Products India (P) Ltd. Is hereby regularised to the changed name M/s. Max Pack Tapes & Products (P) Ltd. Subject to the following conditions:-
➢ Difference in land value and 10% processing fee are to be remitted.
➢ The Managing Director has to execute an amendment agreement to his effect within 15 days on receipt of this order.
➢ The unit has to restart its functioning within two months from the date of this order, failing which land resumption proceedings will be initiated.
➢ An undertaking to the effect that no reconstitution / line of activity changes will be done for next 3 years to be submitted.
➢ Annual working status of the unit to be produced in this office regularly."
W. A. No. 126 of 2022 -4-
4. After considering the rival submissions and applicability of the Rules then in force, writ court, by judgment in W. P. (C) No. 15361 of 2020 dated 05.07.2021, set aside condition Nos. 1 and 2 of Ext. P25, and ordered thus:-
"12. In these circumstances, condition Nos. 1 & 2 in Ext.P25 are set aside. The petitioner will comply all other conditions in Ext.P25. But, I make it clear that, as far as condition No.4 is concerned, if an undertaking is given to the effect that the petitioner will do the same in accordance to the Companies Act, it will be a sufficient compliance.
Therefore, this writ petition is disposed in the following manner:-
1. Condition Nos. 1 and 2 in Ext.P25 are set aside.
2. The 2nd respondent is directed to pass consequential order regarding the change of approval of the name of Directors as per Exhibit P25 within one month from the date of receipt of a copy of this judgment."
5. Being aggrieved, instant writ appeal is filed on the grounds inter alia that as per the Rules issued on 08.06.2020, which superseded the earlier Rules prescribed for the procedure for registration, respondent is not entitled for regularization of the change. W. A. No. 126 of 2022 -5-
6. Though Mr. P. Santosh Kumar, learned Special Government Pleader, made submissions on the grounds raised in the writ appeal, and also pointed out that for the alleged violation of the directions issued in W. P. (C) No. 15361 of 2020 dated 05.07.2021, Con. Case (C) No. 1027 of 2022 has been filed, wherein a learned Single Judge has directed appearance of the General Manager, District Industries Centre, Palakkad, the 1st appellant herein on 27.06.2022, and on the above, sought for interim stay of the directions issued in W. P. (C) No. 15361 of 2020 dated 05.07.2021, Mr. Jacob Sebastian, learned counsel appearing for Max Pack Tapes and Products Ltd., Palakkad, the respondent, submitted that before the writ court, there was no contention of the applicability of the amended Rules to the facts of this case, and that the said contention is being made for the first time before this Court in this writ appeal. Added further, learned counsel for the respondent submitted that the amended Rules have no retrospective effect.
7. Per contra, Mr. P. Santosh Kumar, learned Special Government Pleader, submitted that the amended Rules supersedes the W. A. No. 126 of 2022 -6- earlier Rules.
8. We have considered the rival submissions and perused the material on record.
9. Reconstitution of the Board is stated to have been made in 2006 and that the same has not been approved. Condition Nos. 1 and 2 of Ext. P25 dated 18.06.2020, have been set aside, as early as on 05.07.2021. Writ appeal is being moved in the year 2022, after a long period.
10. Having regard to the above, we are of the view that the respondent is entitled to get the change of approval in the name of Directors as per Ext. P25, as directed by the learned Single Judge by judgment in W. P. (C) No. 15361 of 2020 dated 05.07.2021. However, we make it clear that the abovesaid change will be subject to the result of the instant writ appeal.
11. In the light of the above, we are not inclined to grant interim stay of the directions contained in W. P. (C) No. 15361 of 2020 dated 05.07.2021.
W. A. No. 126 of 2022 -7- Directions contained in W. P. (C) No. 15361 of 2020 dated 05.07.2021 shall be complied within a week from today.
Post after a week.
Sd/-
S. MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P. CHALY JUDGE Eb 17-06-2022 /True Copy/ Assistant Registrar