M/S.West Coast Concrete Products vs The State Of Kerala
2021 Latest Caselaw 14596 Ker

WP(C) NO. 34105 OF 2014              1



                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
    WEDNESDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943
                          WP(C) NO. 34105 OF 2014
PETITIONER/S:

               M/S.WEST COAST CONCRETE PRODUCTS
               AGED 55 YEARS
               REPRESENTED BY ITS MANAGING PARTNER, JAISON
               VARGHESE, INDUSTRIAL DEVELOPMENT AREA, ANGAMALY
               SOUT, PIN - 683 573.

               BY ADVS.
               SMT.JEENA JOSEPH
               SMT.BEENA P.JOSEPH
               SRI.G.D.PANICKER



RESPONDENT/S:

      1        THE STATE OF KERALA
               REPRESENTED BY SPECIAL SECRETARY, REVENUE
               DEPARTMENT, GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM- 695 001.

      2        THE DIRECTOR OF INDUSTRIES AND COMMERCE
               VIKAS BHAVAN, THIRUVANANTHAPURAM -695 001.

      3        THE GENERAL MANAGER
               DISTRICT INDUSTRIES CENTRE, KAKKANAD, ERNAKULAM,
               COCHIN - 682 030.


OTHER PRESENT:

               SMT.SHEJA.C.S., GP


       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 34105 OF 2014              2




                        P.V.KUNHIKRISHNAN, J
                  --------------------------------------------
                      W.P.(C.) No.34105 of 2014
                     --------------------------------------
                 Dated this the 14th day of July, 2021



                                JUDGMENT

The petitioner is a partnership firm established in the

year 1992. Ext.P1 is the partnership deed. It is an industrial

unit manufacturing concrete poles, sleepers, concrete

masonary blocks, fabricated steel structures etc. Unit started

functioning in the year 1985. According to the petitioner, the

unit was allotted 5 acres 66 cents and 750 sq.links of land in

Survey No.126/5B, 6B, 7, 8B, 8C, 9 (old) 276 part (new) of

Angamaly Village vide proceedings No. B2-11559/82 dated

30.12.83, 28.11.84 and 19.10.93 by the 3rd respondent in

industrial area, Angamaly on hire purchase basis. The unit

request for outright purchase of the allotted 5 acres 66.75

cents and same was allowed and the cost of the land in full was

remitted. Ext.P2 is the allotment order. This was followed by

sanction order of the 1st respondent for assignment of these

lands in Angamaly Village based on the recommendation of the

Director of Industries and Commerce. Ext.P3 is the sanction

order. Ext.P4 is the patta issued by the Tahsildar dated

23.3.1999. The petitioner was allowed to remit an amount of

Rs.1,26,342.75/- being the cost of the above land in full as

evident from Ext.P2. The petitioner remitted the entire amount

and occupied the land and further started production and

utilized the land fully for the purpose, for which it was allotted.

According to the petitioner, the unit was working from 1985

onwards and have not violated any conditions of Land

Assignment Rules. But on 4.5.2013, the petitioner received a

letter from the 3rd respondent stating that the entire land is

kept idle without any industrial activity and therefore, 3 rd

respondent recommended to the 2nd respondent for the

cancellation of patta and resumption of land. It is also

mentioned in the letter that, after noticing the non-functioning

of the unit, a show cause notice was issued to the unit. No such

notice was received by the petitioner. Ext.P5 is the letter

issued by the 3rd respondent dated 4.5.2013. The petitioner

replied to that letter refuting the averments as per Ext.P6.

2. Thereafter, on 24.4.2014, the 3rd respondent visited

the factory premises. At that time, according to the petitioner,

the office staff and workers were having lunch. However, the

petitioner met the 3rd respondent and the 3rd respondent

remarked that he had came there for a casual visit. Thereafter,

Ext.P7 was submitted by the petitioner to the General

Manager, District Industries Centre, Ernakulam for the

construction of a building. In response to Ext.P7 letter, the 3 rd

respondent invited the petitioner for a personal hearing. The

petitioner attended the hearing. The petitioner explained and

convinced the 3rd respondent that the unit is receiving big

orders from Larsen and Turbo for their BPCL Cochin Refinery

project. Ext.P8 is a work order. Ext.P9 is the electricity bill.

Thereafter, according to the petitioner, Ext.P10 was issued by

which, it was recommended to resume the petitioner's unit and

to take necessary action consequently by the 2nd respondent.

Aggrieved by Ext.P10, this writ petition is filed.

3. A counter affidavit is filed by the 2 nd respondent. In

the counter affidavit, it is stated that the Government had

given permission to mortgage this land in favour of the State

Bank of India, Ankamaly branch. Later, Syndicate Bank,

Ernakulam had taken over this loan from the State Bank of

India, but permission was not availed for mortgaging the land

in favour of M/s. Syndicate Bank and this is in violation of

Land Assignment Rules. It is also stated in the counter that the

District Collector informed through letter dated 28.2.2011

that they had initiated revenue recovery proceedings against

the unit for collecting the electricity dues. According to the 2 nd

respondent, noticing that the unit has been lying closed, show

cause notice was issued to the unit and the party was called for

hearing on 26.12.2012. It is stated in the counter that the

party informed that they are interested to diversify the product

and agreed to submit the revival project on or before

15.1.2013. It is stated that unit had not submitted any revival

project report and so it was recommended to the Director of

Industries and Commerce on 25.2.2013 to cancel the patta and

resume the abovesaid land. It is also stated that, on

inspection, it was noticed that the unit is functioning, but a

considerable portion of the allotted land is not being utilized

for industrial purpose. It is also stated that on the basis of this

inspection, the unit was heard on 14.7.2014 and the party

informed that they are getting enough work order from L&T.

They also informed that they have got enough work order from

Hydro Carbon Engineering Ltd. for steel fabrication. It is

stated in the statement that the petitioner informed that in

order to do the whole work, they need the entire allotted land.

But, according to the 2nd respondent, on inspection regarding

this, it was found that for ongoing activity in the plot, the

entire land is not necessary. Therefore, the 2 nd respondent

ordered to resume an extent of 2 acres of vacant land from the

abovesaid assigned land and recommended to the Director of

Industries and Commerce for cancellation of patta. The

Government Pleader also submitted that, in Ext.P6, the

petitioner admitted that the entire land is not used by them. It

is stated that for a short period, the petitioner was not doing

business and thereafter, a revival plan was submitted.

4. Heard counsel for the petitioner and the Government

Pleader.

5. The counsel for the petitioner reiterated the

contentions in the writ petition. The counsel also relied

Ext.P12 judgment of this Court, which is confirmed by the

Division Bench of this Court in Ext.P13 judgment. The counsel

submitted that these two judgments squarely cover the issue.

The counsel submitted that Ext.P10 will not stand in the light

of Exts.P12 and P13 judgments.

6. The Government Pleader, on the other hand,

submitted that the petitioner violated the conditions in Ext.P4

patta. The Government Pleader also takes me through

condition Nos. 1(ii), 3 and 10 in Ext.P4 patta. According to the

Government Pleader, these conditions were flouted by the

petitioner and therefore, the resumption order is perfectly,

justified. The Government Pleader submitted that several

persons are waiting for getting land for starting new

industries. When there is excess property in the possession of

the petitioner, the respondents are free to resume the same.

The Government Pleader submitted that Ext.P10 is perfectly in

order and strictly as per Ext.P11 Rules. The Government

Pleader also takes me through Rule 11 of Ext.P11. The

Government Pleader submitted that the resumption order

passed as per Ext.P10 is strictly in accordance to Rule 11 of

Ext.P11. Therefore, the Government Pleader submitted that

the prayers in the writ petition may not be allowed.

7. The short point to be decided in this writ petition is

whether Ext.P10 order passed by the 3rd respondent

recommending resumption of land will stand, in the light of

Ext.P11 Rule and also in the light of Exts.P12 and P13

judgments. Admittedly, the relevant rule that is applicable for

resumption of the land is Ext.P11, which is a Government

order dated 5.4.1969. The Government Pleader says that Rule

11 of Ext.P11 is applicable in this case. Rule 11 is extracted

hereunder :

"11. The Director of Industries & Commerce shall have the power to resume the land if the allottee contravenes any of the provisions of these rules or any of the provisions of the

agreement executed by the allottee or in the event of the concern belonging to the industrialist being wound up or transferred to any other person, Company or group of persons, or in the opinion of the Director of Industries & Commerce there is misuse of the land."

8. From a reading of the above rule, it is clear that the

Director of Industries and Commerce shall have the power to

resume the land in certain conditions. They are :

1) If the allottee contravenes any of the provisions of these

rules.

2) Any of the provisions of the agreement executed by the

allottee.

3) In the event of the concern belonging to the industrialist

being wound up or transferred to any other person,

Company or group of persons, or in the opinion of the

Director of Industries and Commerce there is misuse of

the land.

9. Ext.P10 is the impugned order in this case. The

relevant portion of Ext.P10 is extracted hereunder :

"ഉത്തരവവ

മമേൽ സസാഹചരര്യത്തത്തിൽ മമേ.മവസവ മകസാസവ മകസാൺകക്രീറവ മപസാഡകവസവ എന സസാപനത്തത്തിനവ സൂചന (2) പകസാരരം സൂചനയത്തിമലെ ചട്ടങ്ങൾകരം നത്തിയമേങ്ങൾകരം വത്തിമധേയമേസായത്തി പട്ടയരം നൽകത്തിയ അങ്കമേസാലെത്തി വത്തിമല്ലേജത്തിമലെ സർമവ്വേ നമ്പർ 277/ 2 ,

276 പസാർട്ടത്തിൽമപ്പെട്ട 5 ഏക്കർ 66 മസൻറവ 750 സവകക്വയർ ലെത്തിങ്കവസവ ഭൂമേത്തിയത്തിൽ സസാപനത്തത്തിനവ നത്തിലെവത്തിലുള്ള പവർത്തനങ്ങൾക്കവ ആവശര്യമേസായതത്തിൽ കൂടുതലെസായത്തി കസാണുന 2 ഏക്കർ സലെരം തത്തിരത്തിമച്ചെടുകനതത്തിനരം ആയതത്തിമന്റെ പട്ടയരം റദവ മചയ്യുനതത്തിനമുള്ള നടപടത്തികൾക്കസായത്തി വര്യവസസായ വസാണത്തിജര്യ ഡയറക്ടർക്കവ ശുപസാർശ മചയ്യുനതത്തിനരം ഇതത്തിനസാൽ ഉത്തരവസാകുന.

ഒപ്പെവ ജനറൽ മേസാമനജർ"

10. From a perusal of the above order, it is clear that the

reason for resuming the land is that 5 acres 66 cents and 750

sq.links property is not necessary to the petitioner's unit for

doing the present business. The short point to be decided is

whether this can be a ground for resuming a land as per

Ext.P11 Rules. According to me, this is not a ground for

resumption of land as per Rule 11 of Ext.P11 Rules. Similar

point is considered by this Court in Ext.P12 judgment. There,

the Government order was GO (Ms) No. 297/70/ID dated

24.8.1970. In that Government Order, Rule 9 was the relevant

rule. Rule 9 in the Government Order dated 24.8.1970 is

extracted hereunder :

"9. The Director of Industries & Commerce shall have the power to resume the land allotted to an industrialist as per these Rules under any of the following circumstances.

(i) If the allottee contravenes any of the provisions of these rules or of the agreement executed by him.

(ii) In the event of the concern belonging to the industrialist being wound up or transferred to another person or company or groups of persons without prior approval of the Director of Industries & Commerce.

(iii) If the allottee does not require the land for the purpose for which it is allotted and informs the Director of Industries & Commerce accordingly.

(iv) In the event of the allottee defaulting payment of two instalments consecutively.

(v) In the event of the allottee not commissioning the industry within one year of the date of allotment or within such further time as may be granted by the Director of Industries and Commerce."

11. The above rule is also a rule for the allotment of

land in development plots on hire purchase basis. Interpreting

Rule 9 of the above Rules, this Court observed like this :

"From a reading of the above rules, it appears that the department can resume the land on the satisfaction of any or all of the sub-rules mentioned in rule 9. Though I have repeatedly gone through the said sub-rules of Rule 9, I failed to see a provision which enables the government to resume land or part of the land, which already allotted, on the ground of non-utilisation of any part, thereof.

11. The Department has no complaint that the petitioner has not paid the full cost of the land allotted to the allottee at the time of issuing Ext.P4 notice. Sub-rule 5 of Rule 9 says that in the event of the allottee not commissioning the industry within one year of the date of allotment or within such further time as may be granted by the Director of Industries and Commerce, the property can be resumed. Admittedly, in the present case, the property was allotted during the 1972. The department has no case that the industry was not commissioned within one year from the date of allotment. Sub-rule 3 of Rule 9 enables the government to resume the land provided, the allottee does not require the land for the purpose for which it is allotted and informs the Director of Industries & Commerce accordingly. The said clause also not attracted in the present case. Neither in Ext.P4 nor in Ext.P9, the respondents have

got a case that the petitioner has violated the conditions mentioned so as to attract sub-rules 1 or 2. Thus it can be seen that the grounds mentioned either in Ext.P4 or in Ext.P10 are extraneous to any of the provisions enumerated in Rule 9 and thus, the Department has no statutory or contractual authority to resume part of the land already allotted to the petitioner.

12. In this juncture, it is relevant to peruse Rules 24 and 26 of Ext.P1 Rules. As per Rule 24, after completion of payment to the government, by paying the full cost of the land allotted to the allottee and after the industry is established, arrangements shall be made by the Director of Industries & Commerce to get the land assigned to the allottee through proper authorities. In the present case, as evidenced by Ext.P3, the assignment was given in the name of the petitioner. Rule 26 of Ext.P1 Rules says that the Government shall have complete title and ownership to the land till the land is assigned to the allottee. In the present case, as per Ext.P3 assignment, the ownership over the land was given to the petitioner in the year 1994 itself. So, with respect to the 36 cents of land covered by Ext.P3, the Department has no title or ownership or any other kind of authority. In the absence of any of the grounds enumerated in Rule 9 or in the absence of any specific provision other than mentioned in Rule 9, the department has no authority to resume the land once assigned to the petitioner on the basis of the agreement or part of the land so allotted. In the light of the above facts and circumstances, Ext.P9 is without any authority and the same is liable to be quashed.

12. The above judgment was challenged before the

Division Bench of this Court in W.A.No.2359/2009. The

Division Bench also considered the above Rule and confirmed

the finding of the learned Single Judge. The relevant portion of

the judgment is extracted hereunder :

2. "The learned Single Judge considering the conduct of the appellant/Government in allotting a land to the writ petitioner,

asking him to pay the entire value of the land and in spite of his being prompt in the action, now as per Ext.P9, a new ground is found out that the writ petitioner has not utilised the entire extent of land allotted to him. The learned Single Judge has, in detail, considered the Rules framed in this regard by the Government, especially Rule 9 which enables the Government to resume the land once assigned under certain circumstances. By looking into the Clauses of Rule 9, especially Clauses i, ii, iv and v, we do not find anything to show that nonutilisation of part of the land can permit the Government to cancel the assignment and resume the land.

3. The learned Government pleader vehemently contended that though the entire land has been assigned to the writ petitioner and as he has not utilised the same to fullest extent(20 cents out of 36 cents), the violation is under Rule 9(iii) of the said Rules.

4. Rule 9(iii) of the Rules reads as follows:

"9. The Director of Industries & Commerce shall have the power to resume the land allotted to an industrialist as per these Rules under any of the following circumstances:

(i) xx xx

(ii) xx xx

(iii) If the allottee does not require the land for the purpose for which it is allotted and informs the Director of Industries & Commerce accordingly."

5. This Rule is only in respect of the voluntary act of the assignee who intends to surrender the land and not compulsory resuming by the Government on the present ground or reason, since resumption of land on the ground of nonutilisation is not permitted under this Rule. In our view, the learned Single Judge was justified in quashing Ext.P9.

6. It is also contended by the Government Pleader that as the Government apprehends that petitioner intends to alienate the property, that can be a ground for resumption.

7. First of all, this is not the reason given in Ext.P9 for the alleged resumption and absolutely no material is placed before us for assuming such condition. Looking at the case from any angle, we find that the learned Single Judge was justified in holding that the Government has exceeded its jurisdiction conferred under Rule 9 of the Rules to resume 20 cents of land out of 36 cents, from the petitioner.

Hence, as rightly observed by the learned Single Judge the intention of the Government is not only illegal but appears to be mala fide and hence we find no reason to interfere with the well considered order of the learned Single Judge. In view of the same, the Writ Appeal is devoid of merits and the same is dismissed with cost of Rs.10,000/- (Rupees ten thousand only) to the respondent."

13. The writ appeal was dismissed with cost of

Rs.10,000/- . In the light of the interpretation of Rule 9 of the

allotment of land in developmental plots on hire purchase

basis, I think the same principle can be adopted while

interpreting Rule 11 of Ext.P11 Rules. There is no substantial

change in Rule 9 of the Allotment Rules and Rule 11 of Ext.P11

Rules. This Court clearly stated that the respondent has no

authority to resume the land except for the reason stated in

Rule 9 of the Allotment Rules. Moreover, after getting the

property on hire purchase, the property is assigned to the

petitioner as per Ext.P4. Then how Ext.P11 Rule namely

"Kerala Allotment of Government Land in Development Areas

on Hire Purchase for Industrial Purpose" is applicable is itself

doubtful. Exhibit P4 patta can be cancelled only if the

conditions in it are violated. The Government Pleader relied

condition Nos.1(ii), 3 and 10 in Exhibit P4 patta. But these

conditions or any other conditions in Exhibit P4 give any

authority to resume the land for the reason that a portion of

the property assigned is not used by the petitioner.

Government has no title in the property after Ext.P4. The

conditions in Exhibit P4 are not violated by the petitioner.

Therefore, according to me, the respondents cannot resume

land except for the reason mentioned in Rule 11 of Ext.P11

Rules or for violating the conditions in Ext.P4 patta. According

to me, the reason mentioned in Ext.P10 is not a ground

mentioned in Rule 11 of Ext.P11 Rules or the conditions

mentioned in Exhibit P4.. If that is the case, Ext.P10 will not

stand. Consequently, the petitioner will succeed in this writ

petition.

Therefore, this writ petition is allowed. Ext.P10 order

passed by the 3rd respondent is quashed. No cost.

SD/-

P.V.KUNHIKRISHNAN JUDGE SKS

APPENDIX OF WP(C) 34105/2014

PETITIONER ANNEXURE

EXHIBIT-P1 -TRUE COPY OF THE PARTNESHIP DEED DATED 01/04/1992.

EXHIBIT-P2 -TRUE COPY OF THE ALLOTMENT DATED 03/09/1997.

EXHIBIT-P3 -TRUE COPY OF THE G.O(MS)371/98/RD DATED 02/07/1998

EXHIBIT-P4 -TRUE COPY OF THE PATTA ISSUED BY THE TASILDAR DATED 23/03/1999.

EXHIBIT-P5 -TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT DATED 04/05/2013.

EXHIBIT-P6 -TRUE COPY OF THE LETTER DATED 13/05/2013.

EXHIBIT-P7 -TRUE COPY OF THE LETTER DATED 24/04/2014.

EXHIBIT-P8 -TRUE COPY OF THE WORK ORDER SANCTIONED IN THE NAME OF THE PETITIONER BY L & T

EXHIBIT-P9 -TRUE COPY OF THE ELECTRICITY BILL OF THE PETITIONER UNIT FOR THE MONTH OF NOVEMBER, 2014.

EXHIBIT-P10 -TRUE COPY OF THE ORDER DATED 28/11/2014.

EXHIBIT-P11 -TRUE COPY OF THE GOVERNMENT ORDER DATED 05/04/1969.

EXHIBIT-P12 -TRUE COPY OF THE JUDGMENT DATED 25/08/2009 IN W.P(C) 16957/2003.

EXHIBIT-P13 -TRUE COPY OF THE JUDGMENT DATED 25/10/2009 IN W.A NO. 2359/2009.