Kerala High Court
G.Rajan Nair vs The General Manager on 17 March, 2016
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.MOHAN M.SHANTANAGOUDAR
&
THE HONOURABLE MR. JUSTICE SATHISH NINAN
WEDNESDAY, THE 7TH DAY OF DECEMBER 2016/16TH AGRAHAYANA, 1938
WA.No. 808 of 2016 IN WP(C).21235/2014
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AGAINST THE JUDGMENT IN WP(C) 21235/2014 DATED 17-03-2016
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APPELLANT/PETITIONER :
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G.RAJAN NAIR
MANAGING DIRECTOR, POYILAKADA FISHERIES PVT LTD.
PARAMESWAR NAGAR, KOLLAM - 691 001.
BY ADVS.SRI.ABRAHAM VAKKANAL (SR.)
SRI.PAUL ABRAHAM VAKKANAL
SRI.DIJO SEBASTIAN
SMT.VINEETHA SUSAN THOMAS
RESPONDENTS/RESPONDENTS :
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1. THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE
VELLAYIL, KOZHIKODE-673013.
2. THE DIRECTOR OF INDUSTRIES & COMMERCE
VIKAS BHAVAN, THIRUVANANTHAPURAM-695033
3. K. RAJEEV, ASSISTANT DISTRICT INDUSTRIES OFFICER-II,
DISTRICT INDUSTRIES CENTRE, VELLAYIL,
KOZHIKODE-673013
4. THE TAHASILDAR
CIVIL STATION PO, KOZHIKODE-673020
5. STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM-695001
6. MUHAMMED CHAKKIRI,
ROCKFIELD, CHAKKIRI ROAD, VENGARA,
MALAPPURAM DISTRICT.
R1, R2, R4 & R5 BY SR.GOVERNMENT PLEADER, SRI. M.A. ASIF
R6 BY SRI.K.RAMACHANDRAN
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07-12-2016,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA.No. 808 of 2016 IN WP(C).21235/2014
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APPENDIX
APPELLANT'S EXHIBITS :
ANNEXURE A1 : TRUE COPY OF GO(MS) No.17/16 ID WITH RULES.
ANNEXURE A2 : TRUE COPY OF THE LAND TAX RECEIPT ISSUED BY
PUTHIYANGADI VILLAGE OFFICE.
ANNEXURE A2(I) : ENGLISH TRANSLATION OF LAND TAX RECEIPT ISSUED BY
PUTHIYANGADI VILLAGE OFFICE.
ANNEXURE A2(I)(1) : ENGLISH TRANSLATION OF LAND TAX RECEIPT ISSUED BY
PUTHIYANGADI VILLAGE OFFICE.
ANNEXURE A2(A) : TRUE COPY OF THE LAND TAX RECEIPT ISSUED BY
PUTHIYANGADI VILLAGE OFFICE.
ANNEXURE A2(A) (I) : ENGLISH TRANSLATION OF LAND TAX RECEIPT ISSUED BY
PUTHIYANGADI VILLAGE OFFICE.
ANNEXURE A2(A)(I)(1) : ENGLISH TRANSLATION OF LAND TAX RECEIPT ISSUED BY
PUTHIYANGADI VILLAGE OFFICE.
ANNEXURE A2(B) : TRUE COPY OF THE PROPERTY TAX RECEIPT ISSUED BY
KOZHIKODE MUNICIPAL CORPORATION.
ANNXURE A2(B)(I) : ENGLISH TRANSLATION OF PROPERTY TAX RECEIPT ISSUED BY
KOZHIKODE MUNICIPAL CORPORATION.
ANNEXURE A2(B)(I)(1) : ENGLISH TRANSLATION OF PROPERTY TAX RECEIPT ISSUED BY
KOZHIKODE MUNICIPAL CORPORATION.
ANNEXURE A2(C) : TRUE COPY OF THE PROPERTY TAX RECEIPT ISSUED BY
KOZHIKODE MUNICIPAL CORPORATION.
ANNEXURE A2(C)(I) : ENGLISH TRANSLATION OF PROPERTY TAX RECEIPT ISSUED BY
KOZHIKODE MUNICIPAL CORPORATION.
ANNEXURE A2(C)(I)(1) : ENGLISH TRANSLATION OF PROPERTY TAX RECEIPT ISSUED BY
KOZHIKODE MUNICIPAL CORPORATION.
ANNEXURE A2(D) : TRUE COPY OF THE PROPERTY TAX RECEIPT ISSUED BY
KOZHIKODE MUNICIPAL CORPORATION.
ANNEXURE A2(D)(I) : ENGLISH TRANSLATION OF PROPERTY TAX RECEIPT ISSUED BY
KOZHIKODE MUNICIPAL CORPORATION.
ANNEXURE A2(D)(I)(1) : ENGLISH TRANSLATION OF PROPERTY TAX RECEIPT ISSUED BY
KOZHIKODE MUNICIPAL CORPORATION.
ANNEXURE A2(E) : TRUE COPY OF THE PROPERTY TAX RECEIPT ISSUED BY
KOZHIKODE MUNICIPAL CORPORATION.
WA.No. 808 of 2016 IN WP(C).21235/2014
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ANNEXURE A2(E)(I) : ENGLISH TRANSLATION OF PROPERTY TAX RECEIPT ISSUED BY
KOZHIKODE MUNICIPAL CORPORATION.
ANNEXURE A2(E)(I)(1) : ENGLISH TRANSLATION OF PROPERTY TAX RECEIPT ISSUED BY
KOZHIKODE MUNICIPAL CORPORATION.
/TRUE COPY/
PA TO JUDGE
MOHAN M. SHANTANAGOUDAR, CJ
&
SATHISH NINAN, J
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W.A. No. 808 of 2016
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Dated this the 7th day of December, 2016
J U D G M E N T
Mohan M. Shantanagoudar, CJ The judgment dated 17.3.2016 passed in W.P(C). No.21235 of 2014 is called in question in this appeal. By the impugned judgment, learned Single Judge has clarified that Ext.P16 order dated 2.8.2014 passed by the General Manager, District Industries Centre, Kozhikode cannot be considered as an order of resumption.
2. Records reveal that the appellant herein was allotted 129.08 cents of land in the industrial development plot in West Hill, Kozhikode for establishing a sea-food processing unit. Ext.P5 dated 16.10.1989 is the copy of the order passed by the State Government assigning the land in favour of the appellant. There is dispute with regard to the provisions of law under which assignment was made. According to the appellant, the assignment was made under the provisions of the Kerala Government Land Assignment Act, 1960, where as according to W.A808/16 2 the State Government, the assignment was made as per G.O. (MS).No.297/70/ID dated 24.8.1970. Since it is a disputed question of fact and as the matter has to go back to the State Government, we do not propose to enter into that aspect of the matter while considering this appeal.
3. Based on the allegation that the unit of the appellant has stopped functioning from 2004 onwards (except a few days during 2008-09), Ext.P16 order dated 2.8.2014 came to be passed after hearing the appellant, by the General Manager, District Industries Centre, Kozhikode resuming the property in question. The said order reveals that no earnest effort was made by the appellant to restart the unit despite notices.
4. Ext.P16 order came to be questioned by the appellant herein in W.P(C). No.21235 of 2014. This Court, by the impugned judgment, modified Ext.P16 order directing the State Government to take independent decision on resumption as well as cancellation. While doing so, this Court directed the State Government to hear the appellant as well as the sixth respondent, in whose favour the said property is stated to have been handed over on certain terms and conditions.
5. Learned counsel for the appellant taking us to the W.A808/16 3 material on record submits that since the land is assigned in favour of the appellant under the provisions of the Kerala Government Land Assignment Act, 1960, it is for the State Government to resume the land under Clause 14 of Ext.P17 Rules framed under the provisions of the Kerala Government Land Assignment Act, 1960. Those Rules are called as "the Rules for the Assignment of Government Land in Development Areas for industrial purposes". It is relevant to note Clauses 14 and 15 of the Rules, which read thus :
14. The Government shall have power to resume the land if the industrialist contravenes any of the provisions of these rules or/of the order of the Government assigning the land or of the agreement, if any, executed by the Industrialist with the Government or in the event of the company or concerned belonging to the industrialist is wound up or if the industrialist is an individual or a group of individuals, if the individual or individuals are dead.
15. In the event of the industrialist not requiring the land for the purpose for which it is assigned, he shall intimate the Government in writing immediately and there upon Government may either resume the land or inform the industrialist that he may dispose of the land in any manner he likes. In case of resumption of the land under this rule, the industrialist shall be paid the compensation in the manner fixed under rule 16."
W.A808/16 4
6. From the aforementioned Clause it is amply clear that the State Government shall have ample power to resume the land, if the industrialist contravenes any of the provisions of these rules or/of the order of the Government assigning the land or of the agreement, if any, executed by the Industrialist with the Government or in the event of the company or the concern belonging to the industrialist is wound up or if the industrialist is an individual or a group of individuals, if the individual or individuals are dead. Since the allegation on hand against the appellant is that he has closed down the establishment since 2004, and has not restarted the unit in spite of repeated notices, Clause No.14 was applied. However, the fault committed by the Managing Director of District Industries Centre was that he had resumed the land instead of resuming the land by the Government. Since Ext.P17 Rules empower the State Government to resume the land assigned based on certain facts, it is open for the State Government to take a decision in the matter.
7. In that context, the learned Single Judge has rightly concluded that Ext.P16 order passed by the General Manager, District Industries Centre, can be treated as a piece of evidence W.A808/16 5 by the State Government while considering the main matter of resumption of the land. The learned Single Judge is also justified in observing that it is open for the appellant to produce all the documents in support of his case, opposing resumption. Thus, in our considered opinion, the order of the learned Single directing the State Government to take its own decision need not be interfered with.
8. However, the grievance of the appellant is that the learned Single Judge is not justified in permitting the sixth respondent also to participate in the proceedings before the Government in as much as the sixth respondent has no role to play, since Ext.P16 order of resumption has been passed without jurisdiction by the General Manager, District Industries Centre. Ext.P16 order is illegal and cannot be acted upon. According to the appellant, there is no order in the eye of law. If it is so, the subsequent re-allotment made in favour of the 6th respondent is also bad in the eye of law and accordingly, the sixth respondent has no locus standi to appear during the course of adjudication before the State Government.
9. The said submissions are opposed by the learned counsel for the sixth respondent contending that the sixth W.A808/16 6 respondent has not only been re-allotted the property along with three other persons but also has been given possession of 1/4 of the property. The same is admitted by the petitioner in th the writ petition itself. Thus, according to the sixth respondent's counsel, no harm will be caused, if the sixth respondent is also heard in the matter.
10. Learned counsel for the appellant, however, in reply submits that temporary possession, if any given to the sixth respondent, is illegal and it is only on paper. It is no doubt true that the order of resumption ought to have been passed by the State Government in accordance with the rules. In this view of the matter, learned Single Judge is justified in directing the State Government to take a decision in the matter after hearing the appellant as well as the sixth respondent. Though it is true that the right of sixth respondent can be exercised by him only if the appellant fails in his attempt before the State Government, no harm will be caused if the sixth respondent is also heard in order to avoid multiplicity of proceedings.
11. If the State Government decides to continue the assignment of land with the appellant, the respondent will fail and temporary possession, if any, in favour of the sixth W.A808/16 7 respondent will have to be given back to the appellant. In case if the appellant fails before the State Government, the State Government may decide as to whether the assignment is to be made in favour of the sixth respondent or not. As of now, there is no record to show that assignment was really made in favour of the sixth respondent. In that regard, it is open for the State Government to take decision.
Having regard to the totality of the facts and circumstances, in our considered opinion, the presence of the sixth respondent may be necessary while considering the matter afresh by the State Government. Accordingly, the impugned judgment stands confirmed in as much as no modification is needed.
The appeal fails and the same stands dismissed.
Sd/-
Mohan M. Shantanagoudar, Chief Justice Sd/-
Sathish Ninan, Judge sou.13/12.