Kerala High Court
Mathew Antony vs The Kerala Small Industries ... on 21 April, 1992
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
WEDNESDAY, THE 8TH DAY OF AUGUST 2012/17TH SRAVANA 1934
WP(C).No. 9516 of 2009 (H)
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PETITIONER(S):
------------------------
MATHEW ANTONY, AGED 40 YEARS
S/O. K.C.ANTONY, KARIYIL HOUSE
M/S.'DAKSHIN RUBBER WORKS' INDUSTRIAL ESTATE
CHANGANACHERRY, KOTTAYAM DISTRICT.
BY ADVS.SRI.SANTHOSH MATHEW
SRI.SATHISH NINAN
RESPONDENT(S):
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1. THE KERALA SMALL INDUSTRIES DEVELOPMENT
CORPORATION LIMITED (SIDCO) P.B.NI.50, 6TH FLOOR
HOUSING BOARD BUILDINGS, SANTHI NAGAR
THIRUVANANTHAPURAM,REPRESENTED BY ITS
MANAGING DIRECTOR.
2. THE ESTATE MANAGER,
KERALA SMALL INDUSTRIES DEVELOPMENT
CORPORATION LIMITED (SIDCO) INDUSTRIAL ESTATE P.O.
CHANGANACHERRY, KOTTAYAM DISTRICT.
3. SMT. I.MUMTHAZ, PARAKAL HOUSE
(OASIS RUBBER INDUSTRIES) BEHIND SURESH NURSING
HOME, ICO JUNCTION, CHANGANACHERRY
KOTTAYAM DISTRICT.
4. THE ASSISTANT EXECUTIVE ENGINEER
KERALA STATE ELECTRICITY BOARD
ELECTRICAL SUB DIVISION, THENGANA, THEGANA P.O.
KOTTAYAM DISTRICT.
DCS
WP(C).No. 9516 of 2009 (H)
5. SRI.SAJI BASHEER, AGED AND FATHERS NAME
NOT KNOWN TO THE PETITIONER, MANAGING DIRECTOR
THE KERALA SMALL INDUSTRIES DEVELOPMENT
CORPORATION LIMITED (SIDCO) P.B.NO.50,6TH FLOOR
HOUSING BOARD BUILDING, SANTHI NAGAR
THIRUVANANTHAPURAM
BY ADV. SRI.P.SANTHALINGAM (SR.)
BY ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B
BY ADV. SRI.R.T.PRADEEP
BY ADV. SRI.C.S.MANILAL
BY ADV. SRI.M.K.SUBHAKARAN
BY ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB
BY ADV. SRI.S.SHARAN, SC, K.S.E.BOARD
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
08-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DCS
WP(C).No. 9516 of 2009 (H)
APPENDIX
PETITIONER'S EXHIBITS:-
EXHIBIT P1 : PHOTOCOPY OF THE PROCEEDINGS IN RELATION TO 5 CENTS
ALLOTTED TO THE PETITIONER DATED 21.04.1992
EXHIBIT P2 : PHOTOCOPY OF THE PROCEEDINGS IN RELATION TO 3 CENTS
ALLOTTED TO THE PETITIONER ON 09.02.1993
EXHIBIT P3 : PHOTOCOPY OF THE SKETCH OF 8 CENTS OF LAND PREPARED BY
RETIRED DEPUTY. TAHSILDAR
EXHIBIT P4 : PHOTOCOPY OF THE RECEIPT FOR PAYMENT OF EMD AND
SECURITY DEPOSIT FOR ALLOTTING THE VACANT LAND DATED
29.04.2002 ISSUED BY THE 2ND RESPONDENT
EXHIBIT P5 : PHOTOCOPY OF THE LETTER DATED 12.08.2003 ISSUED BY THE IST
RESPONDENT
EXHIBIT P6 : COPY OF THE RECEIPT ISSUED BY THE 2ND RESPONDENT TO THE
PETITIONER
EXHIBIT P7 : COPY OF THE INTERIM ORDER DATED 20.07.2006 IN W.P.(C) NO. 16886
OF 2006
EXHIBIT P8 : PHOTOGRAPH SHOWING THE ILLEGAL WALL CONSTRUCTED BY
THE 3RD RESPONDENT
EXHIBIT P9 : PHOTOCOPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENT
BEFORE THE SUB INSPECTOR OF POLICE, CHANGANACHERRY
EXHIBIT P10 :PHOTOCOPY OF THELETTER DATED 07.10.2006 ISSUED BY THE IST
RESPONDENT TO THE 3RD RESPONDENT
EXHIBIT P11 :PHOTOCOPY OF THE STATEMENT FILED BY RESPONDENTS 1 AND 2
IN W.P.(C).NO. 16886/2006 DATED 02.08.2006
EXHIBIT P12 :PHOTOCOPY OF THE INJUNCTION ORDER DATED 1.01.2007 IN I.A. NO.
1178 OF 2006 IN O.S. NO. 213 OF 2006 OF THE MUSIFF'S COURT
CHANGANACHERRY
EXHIBIT P13 :PHOTOCOPY OF THE ORDER DATED 19.01.2007 IN I.A. NO. 72 OF 2007
IN C.M.A. NO. 6 OF 2007 BY THE DISTRICT JUDGE, KOTTAYAM
EXHIBIT P14: PHOTOGRAPHS SHOWING THE BOUNDARY STONE PLANTED IN
BETWEEN THE PETITIONER'S PROPERTY AND THAT OF THE 3RD
RESPONDENT
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WP(C).No. 9516 of 2009 (H)
EXHIBIT P15 :PHOTOCOPY OF THE COMMON JUDGMENT IN W.P.(C) NOS. 16886 OF
2006 AND 21771 OF 2007 DATED 14.08.2007
EXHIBIT P16: PHOTOCOPY OF THE JUDGMENT DATED 11.12.2007 IN CONTEMPT
CASE NO. 1635 OF 2007
EXHIBIT P17: PHOTOCOPY OF THE JUDGMENT IN C.M.A. NO. 6 OF 2007 DATED
05.12.2007
EXHIBIT P18: PHOTOCOPY OF THE COMMON JUDGMENT PASSED BY THE
DIVISION BENCH IN W.A. NOS. 3027 OF 2007 AND 395 OF 2008 AND
CONTEMPT APPEAL NO.8 OF 2007 DATED 18.07.2008
EXHIBIT P19: PHOTOCOPY OF THE INTERIM ORDER IN I.A. NO. 807 OF 2008 IN W.A.
NO. 3027 OF 2007 DATED 15.09.2008
EXHIBIT P20: PHOTOCOPY OF THE ORDER DATED 08.12.2008 PASSED BY THE
HON'BLE SUPREME COURT IN SLP NO. CC 15944-15946 OF 2008
EXHIBIT P21: PHOTOCOPY OF THE LETTER DATED 29.10.2008 ALONG WITH THE
SKETCH
EXHIBIT P22: PHOTOCOPY OF THE OBJECTION DATED 03.11.2008 FILED BY THE
PETITIONER
EXHIBIT P23: PHOTOCOPY OF THE LETTER AND SKETCH ISSUED BY THE IST
RESPONDENT TO THE PETITIONER DATED 29.11.2008
EXHIBIT P24: PHOTOCOPY OF THE OBJECTION DATED 15.12.2008 FILED BY THE
PETITIONER TO EXHIBIT P23
EXHIBIT P25: PHOTOCOPY OF THE ORDER DATED 12.03.2009 ISSUED BY THE IST
RESPONDENT TO THE PETITIONER
EXHIBIT P25(a): PHOTOCOPY OF THE LETTER DATED 21.03.2009 ISSUED BY THE
2ND RESPONDENT TO THE PETITIONER
EXHIBIT P26: PHOTOCOPY OF THE PROCEEDINGS DATED 07.10.1999 ALLOTTING
42.40 SQUARE METER OF LAND TO THE 3RD RESPONDENT BY THE
IST RESPONDENT
EXHIBIT P27: PHOTOCOPY OF THE CAVEAT PETITION NO. 15 OF 2009 FILED BY
THE 3RD RESPONDENT BEFORE THE SUB COURT, KOTTAYAM
EXHIBIT P28: PHOTOGRAPHS
EXHIBIT P29: PHOTOCOPY OF THE DETAILED REPORT SUBMITTED BY THE
ADVOCATE COMMISSIONER IS O.S. 213 OF 2006 ON THE FILES OF
THE MUNSIFF'S COURT CHANGANACHERRY
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WP(C).No. 9516 of 2009 (H)
EXHIBIT P30: PHOTOCOPY OF THE SKETCH SUBMITTED BY THE ADVOCATE
COMMISSIONER
EXHIBIT P31: PHOTOCOPY OF THE JUDGMENT DATED 03.07.2010 IN O.S. 213 OF 2006
ON THE FILES OF THE MUNSIFF'S COURT CHANGANACHERRY
RESPONDENT'S EXHIBITS :-
EXHIBIT R3(a): COPY OF THE PLAINT O.S. 213/06 FILED BY THE 3RD RESPONDENT
BEFORE THE MUNSIFF COURT, CHANGANASSERY
EXHIBIT R3(b): COPY OF THE ORDER DATED 01.01.2007 IN I.A. NO. 1178/06 IN O.S.
213/06
EXHIBIT R3(c): COPY OF THE ALLOTMENT ORDER DATED 14.07.1992 ISSUED BY
K.S.I.D.C. THE 3RD RESPONDENT
EXHIBIT R3(d): COPY OF THE ALLOTMENT ORDER DATED 07.10.1999 ISSUED BY
K.S.I.D.C. THE 3RD RESPONDENT
EXHIBIT R3(e): COPY OF THE AGREEMENT DATED 14.07.1992 ENTERED INTO WITH
THE SIDCO BY THE 3RD RESONDENT
EXHIBIT R3(f): COPY OF THE AGREEMENT DATED 19.10.2001 ENTERED INTO WITH
THE SIDCO BY THE 3RD RESPONDENT
EXHIBIT R3(g): COPY OF THE COUNTER AFFIDAVIT IN W.P.(C) NO. 16886-06
/TRUE COPY/
P.A. TO JUDGE
DCS
A.M.SHAFFIQUE, J
* * * * * * * * * * * * *
W.P.C.No.9516 of 2009
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Dated this the 8th day of August 2012
J U D G M E N T
The petitioner challenges Exts.P25 and P25A orders passed by the Kerala Small Industries Development Corporation Ltd. (SIDCO).
2. Petitioner was allotted an area of 5 cents of land in the Industrial estate of SIDCO at Changanassery, Kottayam District in the year 1992 and a further 3 cents adjacent to it in the year 1993. The petitioner requested for allotment of another 2 cents of land, which, according to him, is lying vacant in front of his property in between his building and the internal road and necessary security deposit was also furnished as evident from Ext.P4. His intention was to put up a transformer in the said area in order to enhance the connected load to increase the capacity of the unit. Necessary charges were also remitted. Since no action was taken by SIDCO, the petitioner filed W.P.C.No.16886/2006 before this court and an interim direction was issued to allot him the said area subject to the result of the W.P.C.No.9516/2009 2 original petition.
3. It is the contention of the petitioner that, 3rd respondent, a neighbouring unit holder trespassed into a portion the aforesaid 2 cents of land and constructed a wall. The petitioner complained about the matter to SIDCO and since no action was taken the petitioner filed another writ petition as W.P. (C) No.21771/2007 seeking a direction to the 4th respondent to enhance the connected load to the petitioner's unit either by enhancing the capacity of the existing transformer or by erecting a new transformer along with the existing transformer. It is the case of the petitioner that it was during the pendency of W.P.C.No.16886/2006 that the 3rd respondent trespassed into the aforesaid 2 cents of land and constructed a compound wall. Complaints were filed before the police and also before the 2nd respondent. The trespassed area, according to the petitioner, would come to about 0.7 cents. In fact, the 3rd respondent appears to have claimed certain portion of the aforesaid 2 cents of land on the ground that the said area was also forming part of the property allotted to her and in that view of the matter, the petitioner cannot be allotted the said area. SIDCO took a view W.P.C.No.9516/2009 3 that after excluding the portion of the property allotted to the 3rd respondent, the balance extent of land can be allotted to the petitioner.
4. A suit was filed by the 3rd respondent as O.S.No.213/06 before the Munsiff Court, Changanassery alleging that the newly constructed building by the petitioner is in violation of the Building Rules etc. and sought for an injunction to restrain the petitioner from making any further construction. An interim order was passed in the said case restraining KSEB from providing electric connection in any manner for the functioning of the machineries in the newly constructed building of the petitioner. The petitioner preferred an appeal as CMA 6/07 and the injunction order passed by the Munsiff Court was stayed. In the meantime, by a common judgment dated 14/08/2007 in W.P.C.Nos.16886/06 and 21771/2007, learned Single Judge of this Court directed KSEB to install the transformer in the land in the front of the petitioner's new building and to give necessary power allocation, on the petitioner meeting the cost for the same. SIDCO was permitted to recover the cost of the land at the market value from the W.P.C.No.9516/2009 4 petitioner. When it was pointed out that the petitioner has encroached upon 1.63 cents of land, there was a further direction that market value of the said land has also to be paid by the petitioner failing which he can be evicted. There was a further direction that if there is any illegal construction by anybody including the 3rd respondent, it is open for SIDCO to remove the same and restore the land to its original nature. When no steps were taken by SIDCO to demolish the wall constructed by the 6th respondent, the petitioner filed Contempt of Case No.1635/2007 and by order dated 11/12/2007 the petitioner was permitted to demolish the wall constructed by the 3rd respondent. There was a further direction that KSEB will install the transformer and give connection to the petitioner on the petitioner complying with the formalities and on remitting the usual charges after demolition of the compound wall. The petitioner demolished the compound wall constructed by the 3rd respondent.
5. The 3rd respondent preferred appeals against the order in contempt case and against the common judgment in the writ petitions. The Division Bench considered the matter and by W.P.C.No.9516/2009 5 a common judgment dated 18/07/2008 disposed of the appeals as follows:
"In the above facts and circumstances, we dispose of W.A.No.3027 of 2007 and W.A.No.395 of 2008 with the following directions:
i) The impugned order passed by the learned Single Judge in W.P.C.Nos.21771 of 2007 and 16886 of 2006 is set aside.
ii) The SIDCO shall invite the petitioner and respondent No.3/6 (appellant) and hear them and take a decision in the matter with an open mind.
iii) It will be open to the petitioner and the appellant to raise all their contentions before the SIDCO in support of their rival claims over the narrow strip of land in question which appears to be the bone of contention in these cases.
iv) Simultaneously, the grievance aired by the petitioner in the writ petitions shall also be addressed by the SIDCO and a final comprehensive decision shall be taken in the matter after considering all relevant aspects of the matter.
v) The petitioner and the appellant are directed not to put up any further construction W.P.C.No.9516/2009 6 in the disputed strip of land till a decision is taken one way or the other by the SIDCO.
8. In view of the order passed in the writ appeals, Cont.Appeal No.8 of 2007 which was an offshoot of the impugned judgment has become infructuous. Therefore, it is closed."
6. Thereafter, after a considerably long period, the officers of SIDCO measured the property and separate sketches were prepared for which the petitioner had filed objections and according to the petitioner, without considering any of the objections Ext.P25 order was passed. Ext.P23 is one of the sketches provided by SIDCO. According to them, going by the sketch produced as Ext.P23, plot No.2, having an area of 0.83 cents, has been allotted to the 3rd respondent as per proceedings dated 07/10/1999. Therefore, according to them, plot No.2 cannot be allotted to the petitioner. On a perusal of the sketch, it can be seen that plot No.2 occupies almost 1/3rd of the front portion of the property allotted to the petitioner which touches the internal road. By Ext.P25(a) petitioner was called upon to close the shutter which opens to Plot No.2.
7. Petitioner submits that the finding of SIDCO that the portion marked as Plot No.2 in Ext.P23 sketch having been W.P.C.No.9516/2009 7 allotted to the 3rd respondent stands contrary to the statement made by SIDCO before this Court. According to him, the allotment made on 07/10/1999 is a different land which is exactly on the front side of the property of the 3rd respondent as evident from Ext.P26.
8. 3rd respondent has filed a counter affidavit inter alia contending that when allotments had been made by SIDCO in respect of the property for which the parties pay the full consideration and the properties were identified by means of putting survey stones and also by constructing compound wall, there is no question of any dispute as to the identity of the property. According to her, she was originally allotted 7 cents of land and one cent was allotted subsequently. According to her, on getting allotment of 3 cents of land in addition to 5 cents, the petitioner constructed a new building illegally as an extension of the old building encroaching into the north eastern boundary of the 3rd respondent's property without permission from SIDCO and without providing sufficient space which resulted in her filing a complaint to SIDCO. Since SIDCO failed to take action in the matter, she had to approach Munsiff Court, Changanacherry W.P.C.No.9516/2009 8 by filing O.S.No.313/06. According to her, the plots were allotted on 14/7/1992 and 07/10/1992 as per Exts.R3(c) and R3
(d). It is further contended that by virtue of the directions issued by the Supreme Court, a comprehensive survey was done with the aid of survey experts as well as the Estate Manager of SIDCO, the Assistant Executive Engineer etc. and in the presence of the parties concerned. The entire properties were measured based on the allotment order as well as the sketch attached at the time of allotment. She reiterated the position that the land pointed out by the petitioner is a portion which is already allotted to her. According to her, the attempt of the petitioner was to make an access to his unauthorised building through her property and thereby to obstruct and diminish the beneficial enjoyment of her property. Ext.R3(f) is the agreement executed between the third respondent and SIDCO in terms of allotment proceedings dated 07/10/1999 which is produced as Ext.R3(d). In fact, in Ext.R3(d) the area of plot is shown as 42.40 sq.meters in Survey No.499/1 whereas in the agreement the area allotted is only 33 sq.meters in survey No.499/1. The boundaries as seen in Ext.R3(f) indicates that on its northern side, it is the W.P.C.No.9516/2009 9 property of the petitioner, on the eastern side it is a vacant land, in the western side it is the property of the 3rd respondent and on the southern side it is Thekkekkara Enterprises.
9. The petitioner has filed I.A.No.12775/2009 producing additional documents as Exts.P29 and P30. Ext.P29 is a commission report filed in O.S.No.213/06 and Ext.P30 is the sketch submitted by the Advocate Commissioner. An additional affidavit is also filed by the petitioner along with I.A.No.10376/2010 producing the copy of the judgment in O.S.No.213/06 as Ext.P31.
10. During the pendency of this writ petition, there was an attempt for settlement and a suggestion was made by this Court by order dated 13/01/2012 and SIDCO was directed to consider the proposal to arrive at an amicable solution and to avoid any inconvenience to the parties. The learned counsel for SIDCO, on instructions, submitted that the said suggestion is acceptable to them and a memo dated 06/08/2012 is filed showing a sketch by which the issue could be resolved. According to SIDCO, they had a proposal to widen the existing road in front of the property of the petitioner to 4.5 Meters and W.P.C.No.9516/2009 10 after such widening they could resume Plot No.2 mentioned in Ext.P23 plan and then allot a portion of Plot No.2 and certain undisputed area to the petitioner and thereafter allot Plot No.3 in Ext. P23 plan in front of the property of the 3rd respondent to her. But the learned counsel for the 3rd respondent is not agreeable to the said proposal and requires the case to be heard and disposed on merits.
11. Having heard learned counsel appearing on either side, the point that requires to be considered is whether Plot No.2 of Ext.P23 plan has been actually allotted to the 3rd respondent or not. According to SIDCO, after having measured the property in the presence of surveyors, the said property is already alloted to the 3rd respondent. But, referring to Ext.P30 plan, it is contended by the petitioner that the said allotment made on 07/10/1999 was immediately in front of the property of the 3rd respondent and there is no allotment of any property in front of the property of the petitioner.
12. I think a reference to Ext.R3(f) is necessary. Ext.R3
(f) is an agreement executed between the 3rd respondent and SIDCO on the basis of the allotment letter dated 07/10/1999. W.P.C.No.9516/2009 11 The land allotted is only 33 sq.meters and the plan attached to it indicates that the property of the petitioner is situated on the northern side of the said plot. But the boundary shown in Ext.P23 plan does not tally with the said plan. In Ext.P3 plan, a portion of Plot No.2 is seen as the continuation of the internal road which is the access to the 3rd respondent unit. The southern side of Plot No.2 is a small extent of 4.50 M2, which forms part of the road. Plot No.3 on the western side is seen unallotted and lies vacant. It has an area of 47.18 M2. Still it is contended by SIDCO and the 3rd respondent that Ext.P23 plan was prepared only after measurement. Ext.P30 plan in the suit prepared by the Advocate Commissioner with the help of Taluk surveyor gives a different picture. Therefore, it is not safe to accept Ext.P23 plan as it is. Since Exts.P25 and P25(A) came to be ordered based on Ext.P23 plan it suffers from the same infirmity and are liable to be set aside.
13. It is seen that the parties had been litigating for a long time. In fact the Division Bench of this court in W.A.No.3027 of 2007 and connected cases wanted a settlement of the issues. Though an attempt has been made by SIDCO they W.P.C.No.9516/2009 12 have come with Ext.P25 and P25(A) which did not resolve the issue but had only resulted in further litigation. The photographs produced as Ext.P8 would show that the disputed property is only a small extent of land lying in front of the property of the petitioner. On a perusal of Ext.R3(f), it could be seen that there is an undertaking by the allottee to surrender the plot without hesitation despite settlement of purchase value on receipt of orders for resumption from the Corporation for any reason whatsoever including failure to remit the enhanced value issued. Meaning thereby that all the allottees cannot have an absolute right in respect of the property allotted to them and it is open for SIDCO to call upon them to surrender any unutilised land for any reason which should not be unreasonable or arbitrary.
14. Therefore, in order to settle the disputes between the parties who are neighbouring industrial units, even if going by Ext.P23 plan, if the 1st respondent thinks that a certain swapping can be done with reference to the allotted spaces without causing any inconvenience to any of the parties, it is open for the Corporation to resume such land and allot the same to another person and vice versa. The whole concept of allotment of land in W.P.C.No.9516/2009 13 industrial areas is to run the industry and not to have unnecessary disputes which would ultimately affect the industry concerned. In fact the plan produced by the SIDCO seems to be a reasonable method for settling the matter. It seems that the 3rd respondent will not loose any land by the said process and will get sufficient bell mouth to her unit and can get additional land, in front of her unit itself.
15. The purpose of challenging Exts.P25 and P25(a) in so far as the petitioner is concerned, is for the purpose of putting a transformer so that he gets additional load for the purpose of enhancing the capacity of his unit. The petitioner further seeks a direction to the 4th respondent to sanction additional connected load to the petitioner's industrial unit from the existing transformer put up in the property of the 3rd respondent or in the alternative permit the petitioner to put up an additional transformer or to direct respondents 1 and 2 to discuss with respondents 3 and 4 and identify the most suitable location where a transformer could be put up by the petitioner. If SIDCO takes a positive action on the basis of their memo dated 06/08/2012, the petitioner will have sufficient space for putting W.P.C.No.9516/2009 14 up the transformer. Hence I do not think that the relief, as prayed for, requires to be considered now. The writ petition is therefore disposed of as follows:
i) Exts.P25 and P25(a) are set aside.
ii) The 1st respondent shall take necessary action to provide additional space for the petitioner as requested by him for putting up the transformer and if necessary by resuming any portion of land remaining unutilised as suggested by SIDCO in their memo dated 06/08/2012 and in the light of the observations in the judgment.
iii) The 1st respondent shall take a decision in the matter within a period of one month from the date of receipt of a copy of this judgment.
(sd/-) (A.M.SHAFFIQUE, JUDGE) jsr W.P.C.No.9516/2009 15 W.P.C.No.9516/2009 16