Quashed

S.Radhakrishnan v. State of Kerala

Kerala HC1 Mar 2017WP(C)/29323/2010

Case brief

AI extract

What is this about?

The High Court of Kerala quashed an administrative order refusing industrial land allotment due to total non-application of mind and malafides. The Court directed the competent authority to reconsider the petitioner's claim on merits within three months without disturbing existing allotments.

What did the court decide?

Ext.P9 set aside to the extent relating to the petitioner; direction to third respondent to reconsider claim for allotment within 3 months without prejudicing existing allottees.

S.Radhakrishnan Vs State of Kerala — Corruption | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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WEDNESDAY, THE 1ST DAY OF MARCH 2017/10TH PHALGUNA, 1938

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WP(C).No. 29323 of 2010 (M)

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PETITIONER :

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S.RADHAKRISHNAN, KRISHNAVILASAM, CHAVARA BRIDGE P.O,CHAVARA, KOLLAM DISTRICT, PIN -691 583.

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BY SRI.ABRAHAM VAKKANAL,SENIOR ADVOCATE ADVS. SRI.DIJO SEBASTIAN

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SMT.JASMY KATTOOR SRI.PAUL ABRAHAM VAKKANAL SRI.N.VIMALAN SMT.VINEETHA SUSAN THOMAS

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO THE GO VT. OF KERALA, DEPARTMENT OF INDUSTRIES AND COMMERCE, THIRUVANANTHAPURAM, PIN -695 001.

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2. DIRECTOR OF INDUSTRIES AND COMMERCE, GOVERNMENT OF KERALA,THIRUVANANTHAPURAM, PIN -695 033.

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3. THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, KOLLAM -691 002.

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4. SMT. NIMMY ANTONY M.D, M/S.OKAY GASSES INDIA PVT. LTD.,

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APARTMENT ID MARINE PLAZA, MARINE DRIVE, COCHIN -682 018.

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5. SRI.T.REGHUNATH, THOPPIL VEEDU, VADAKKUMBHAGAM WARD, KOLLAM.

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6. KOLLAM CORPORATION, REPRESENTED BY ITS SECRETARY, KOLLAM - 691 001.

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2/-

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-2-

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WP(C).No. 29323 of 2010 (M)

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*ADDL.R7 TO R9 IMPLEADED

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*Addl. R7. ROHITH RAGHUNATH, S/O.LATE T. RAGHUNATH, AGED 26 YEARS, THOPPIL VEEDU, V.R.A.NO.10, HOSPITAL ROAD, KOLLAM DISTRICT -691 001.

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*Addl. R8. RANI RAGHUNATH, W/O.LATE T.RAGHUNATH, AGED 45 YEARS, THOPPIL VEEDU, V.R.A.NO.10, HOSPITAL ROAD, KOLLAM DISTRICT -691 001.

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*Addl. R9. RAKHI RAGHUNATH, D/O.LATE T.RAGHUNATH, AGED 24 YEARS, THOPPIL VEEDU, V.R.A.NO.10, HOSPITAL ROAD, KOLLAM DISTRICT -691 001.

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*ADDL.R7 TO R9 ARE IMPLEADED AS PER ORDER DATED 27/9/13 IN IA.NO.12548/13.

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R1 TO R3 BY GOVERNMENT PLEADER SMT. MABLE C. KURIAN R4 BY ADV. SRI.P.RAMAKRISHNAN ADDL.R7 TO R9 BY SRI.E.K.NANDAKUMAR,SENIOR ADVOCATE ADVS. SRI.M.GOPIKRISHNAN NAMBIAR

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SRI.P.GOPINATH SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.RAJA KANNAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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WP(C).NO.29323/2010

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1 COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT DATED 10/04/1992

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P2 COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT DATED 04/07/1992

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P3 COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT DATED 24/09/1992

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P4 COPY OF THE CIRCULAR LETTER ISSUED BY THE 2ND RESPONDENT DATED 18/02/1998

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P5 COPY OF THE NEWS PAPER CUTTING APPEARED IN THE MALAYALA MANORAMA DAILY DATED 20/04/2010

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P6 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 06/05/2010

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P7 COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT, DATED 18/03/2010

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P8 COPY OF THE RULES FOR THE ALLOTMENT OF LAND IN DEVELOPMENT PLOTS ON HIRE PURCHASE BASIS DATED 24/08/1970

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P9 COPY OF THE ORDER NO.G.O(RT) NO.186/2011/IND. DATED 05/02/2011

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P10 COPY OF THE REVIEW PETITION BEFORE THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT INDUSTRIES & COMMERCE DEPARTMENT DATED 28/02/2011

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P10(A) COPY OF THE CERTIFICATE DATED 24/09/1988

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P10(B) COPY OF THE RECOMMENDATION DATED 29/12/89

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P10(C) COPY OF THE ORDER NO.FC.F1/2601/90 OF THE ADDITIONAL DIRECTOR OF INDUSTRIES AND COMMERCE DATED 08/03/90

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P10(D) COPY OF THE ORDER OF THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE QUILON DATED 16/03/90

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P10(E) COPY OF THE MEMORANDUM OF AGREEMENT DATED 19/06/1989

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P10(F) COPY OF THE LETTER DATED 18/01/92

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P10(G) COPY OF THE LETTER FROM THE PETITIONER TO THE DIRECTOR OF INDUSTRIES AND COMMERCE DATED 15/10/1992

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P11 COPY OF THE LETTER NO.ID 6-2222/08 DATED 16/06/2009

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P11(A) COPY OF THE LETTER DATED 24/12/2009

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2/-

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-2-

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WP(C).NO.29323/2010

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P12 COPY OF THE ORDER IN WPC.NO.6182/11 (W) DATED 28/02/2011

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P13 COPY OF THE ORDER IA.NO.14646/10 IN WPC.NO.29323/2010 (M) DATED 27/10/2010

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RESPONDENT'S EXHIBITS:

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R3(A) COPY OF THE LETTER DATED 16/6/2009 ISSUED FROM THE DIRECTOR OF INDUSTRIES AND COMMERCE

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R3(B) COPY OF THE LETTER ISSUED TO THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI- CORRUPTION BUREAU, KOLLAM DATED 25/5/2010

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R3(C) COPY OF THE LETTER DATED 30/06/2010 ISSUED BY THE DEPUTY SUPERINTENDENT OF POLICE

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R3(D) COPY OF THE APPLICATION BY THE PETITIONER UNDER THE RIGHT INFORMATION ACT

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R3(E) COPY OF THE REPLY OF LETTER TO THE PETITIONER

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R3(F) COPY OF THE LETTER ISSUED FROM THE GENERAL MANAGER TO THE PETITIONER.

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R3(G) COPY OF THE COMPLAINT OF THE PETITIONER.

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R3(H) COPY OF THE REPLY DATED 11/8/2010 ADDRESSED TO THE PETITIONER.

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R4(A) COPY OF THE LETTER DATED 22/1/2010 ISSUED BY THE 3RD RESPONDENT

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R4(B) COPY OF THE LETTER DATED 19/2/2010 ISSUED BY THE 3RD RESPONDENT

/TRUE COPY/

P.A.TO JUDGE

sts

DEVAN RAMACHANDRAN, J.

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============================== W.P.(C)No.29323 of 2010

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============================== Dated this, the 01^st day of March, 2017.

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J U D G M E N T

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The petitioner claims allotment of a certain extent of industrial land in the Development plot at Mundakkal,

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Kollam, under the jurisdictional control of the third respondent.

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This plot appears to be a notified industrial area and the petitioner is seen to have made an application, as early as in 1992, seeking allotment of 25 cents of land for the purpose of commencing a certain industry in the name of a company by name M/s.Scraplast Industries. The petitioner alleges that even though he was included in the priority list of persons eligible for such allotment, he was not allotted the land when his turn came, but that respondents 4 and 5 were given those allotments to his preference. He asserts that this action of third respondent is illegal, unlawful and unconstitutional since he had a vested right to have been considered for

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W.P.(C)No.29323 of 2010 : 2 :

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allotment based on the fact that he was included in the priority list of potential allottees. The petitioner has impugned specifically Ext.P9 order of the Government, which is a final order adjudicating the claim of the petitioner, but finding that he is not entitled.

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I have heard the learned Senior counsel appearing for the petitioner Shri.Abraham Vakkanal assisted by Shri.Dijo Sebastian, Shri. Gopinath Menon appearing for the additional 7 to 9 respondents (who are the legal heirs of the deceased 6^th respondent), Shri.Prathap Abraham appearing for the 4^th respondent and the learned Government Pleader appearing for the respondents 1, 2 and 3.

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Even though this matter is hotly contested, the compass of the disputes is in fact limited. The petitioner claims that he was included in the priority list of potential allottees and that, therefore, he ought to have been granted the land at the time when it was allotted to respondents 4 and 5. He makes these assertions on the basis of Exts.P1 to P3 which clearly show that he had

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been included for being allotted land at Development plot, Mundakkal, Kollam in the order of priority. In fact, Ext.P3 is explicit when it says that with the request of the petitioner at the Development plot will be considered on priority basis as and when plots become vacant. However, when lands became vacant, the petitioner was excluded, but respondents 4 and 5 were offered allotments. This justifiably must have caused chagrin to the petitioner and I see sufficient justifications in the petitioner having litigated against such allotments. The petitioner has filed this writ petition alleging specifically that his inclusion in the priority list gave him a vested right for being considered for allotment and that the allotments made to respondents 4 and 5 are illegal since it was done to his exclusion. He asserts this on the factual basis that respondents 4 and 5 are placed much lower in the priority list than him.

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I have examined Ext.P9, which is final order of

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the Government in this issue. I see that Ext.P9 is an order that is issued after hearing the petitioner as well as

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W.P.(C)No.29323 of 2010 : 4 :

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the respondents 4 and 5. I also notice that the petitioner had tried for a review of Ext.P9 order which was, however, rejected. Obviously, therefore Ext.P9 holds the field now. All that is necessary for this Court exercising the power of judicial review is to see whether Ext.P9 has been issued validly and within the confines of the jurisdiction available to the Authority which issued it.

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I have examined Ext.P9 order independently. It says two things essentially against the petitioner. The first is that he is not included in the list of priority and the second is that he had, pending his application for allotment, applied afresh in the year 1994 and that he had begun an industry in the same name, namely, M/s.Scraplast, which later become defunct and a sick unit. It is further alleged therein that these facts were not brought to the notice of the authorities by the petitioner until 14.07.1994 and that the petitioner is, therefore, not entitled to an allotment.

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As regards the statement in Ext.P9 that the petitioner was not included in the list of priority, I think

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that the Authority has concluded so on confutative considerations. I say this because in Ext.P9, even though the Authority adverts to Exts.P1, P2 and P3, he has refused to accept them recording very casually that these orders are not available on the files placed before him. This statement, I must say, appears to border on being incautious, because even the General Manager of the District Industries Centre does not appear to have asserted that these documents had not been issued by his office. If that be so, even assuming that those documents are not available on the files, it would be completely unacceptable that the petitioner should lose the benefit of being in priority since Exts.P1 to P3 lends complete credence to the petitioner's avouchment that he was so included in the list of priority. I am willing to travel with the petitioner to the extent to which he asserts that he was so included and the statements in Ext.P9 to the contrary cannot be sustained from the touch point of scrutiny in law.

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As regards the question as to whether the

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petitioner is entitled, even assuming that he was included in the priority list, to be allotted land is an issue that ought to have been considered by the Authority with greater caution and circumspection. When the petitioner vouches that he was included in the priority list, it was incumbent upon the authorities to say why the petitioner is not eligible to the allotted land. In Ext.P9, it is only stated more as an insinuation that the petitioner is not eligible for allotment, because his earlier unit in the same name of M/s.Scraplast Industries had become defunct and had turned sick. At the first glance, I understand this to be that since the petitioner had an earlier opportunity which he had allegedly squandered, he cannot be given an allotment by way of a second chance. This is at best what can be made on from the statements in Ext.P9. If this is true, it would have been possibly sufficient for the petitioner's denial. However, it is specifically contended by the learned Senior Counsel Shri.Abraham Vakkanal that these veiled remarks in Ext.P9 are completely untrue. He says that he had made an application for

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allotment only because his earlier unit had turned sick for want of sufficient space and that the request for allotment was made so that his unit could be shifted to a more suitable place. The learned Senior Counsel refers to Ext.P10 representation which was made by the petitioner before the Authority which also contained Exts.P10(a) to P10(g) enclosures. Those enclosures would indicate, with a certain amount of clarity, that the petitioner had started an industry in the name of M/s.Scraplast Industries in the year 1990 and that it had been operating from a space at a rented building at Pottankulangara within the Chavara panchayat. These documents would also indicate that it is because the industry went into being a sick one that the petitioner had made the application before the third respondent for allotment of land at the Development Plot at Kollam, because he wanted to relocate the industry to a suitable place. If this is so, the statements in Ext.P9 would become very suspicious and very questionable. I leave it there. I do not want to go further, because I do not think it will be justified for this Court to enter into and

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conclude upon issues which are essentially in the realm of facts. However, I have recorded all this because I am now firm in my mind that the petitioner deserves to have his claim and eligibility for allotment of land to be properly reconsidered by the competent Authorities.

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It is true that the petitioner has also challenged the allotment of land to respondents 4 and 5. I am told that both these respondents have started their respective industries by expending large amounts of money and by causing great investments. No doubt this Court had by

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an interim order, allowed them to operate at their risk. However, at this point of time, I am not sure if it would be justified that respondents 4 and 5 be removed from the land to accommodate the petitioner, even if he is entitled. In such circumstances, notwithstanding the directions that I propose to make herein, I am of the view that the status of respondents 4 and 5 will have to be maintained and if the petitioner is found to be entitled for allotment by the respondents, then he will have to be allotted such suitable land in other parts of the Development Plot without any

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manner causing disturbance or prejudice to respondents 4 and 5. I deem this necessary because, after all respondents 4 and 5 are not rivals to the petitioner but are more victims of circumstances that they were forced into.

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As I have already indicated above, Ext.P9 to the extent to which relates to the petitioner cannot obtain sustenance on strict scrutiny. This is more so because, I find that there are certain statements in Ext.P9 which seem to indicate that the petitioner has issued a letter dated 17.11.1995 stating that he does not require land and that he has started another industry in some other area. This statement contained in Ext.P9 is completely unacceptable, to say the least, because in paragraph 18 of the said order, it is obvious that this is a letter that was not issued by the petitioner, but by the third respondent. Ineluctably, therefore, Ext.P9 suffers from the vice of total non application of mind and mala fides at least technical in nature and therefore, deserves only to be set aside and quashed. I have no hesitation in doing so and thus

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Ext.P9, to the extent to which relates to the petitioner, is hereby set aside. Consequently, any order passed by the Authority on Ext.P10 Review Petition would also stand set aside.

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In such circumstances, I direct the third respondent to immediately re-consider the claim of the petitioner for being allotted land in the Development Plot, specifically in view of Exts.P1 and P3 and the attended circumstances as also the observations contained herein. The third respondent is obligated by the terms of this judgment and in terms of the applicable Rules and Regulations to consider the entitlement of the petitioner for allotment of land on its merits and if he is found to be entitled, he be allowed a suitable land but without in any manner prejudicing or disturbing the earlier allotment favouring respondents 4 and 5 (respondent No.5, having expired pending this lis, is being represented by his legal representatives, respondents 6 to 8).

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Since this writ petition has been pending before this Court for the last 7 years, it is only appropriate that

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the third respondent dispose of the matter after proper consideration and after affording an opportunity of being heard to the petitioner, as expeditiously as possible, but not later than 3 months from the date of receipt of a copy of this judgment. I further direct the third respondent to treat these directions as being peremptory and complete the exercise as directed herein within the time granted and without seeking any further time.

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This writ petition is ordered thus. In the facts and circumstances of this case, I make no order as to costs

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and direct the parties to suffer their respective costs.

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Sd/-

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DEVAN RAMACHANDRAN, JUDGE.

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Bb/04/03/2017

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[True copy]

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P.A to Judge

S.Radhakrishnan v. State of Kerala

Case brief

What is this about?

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S.Radhakrishnan v. State of Kerala

Case brief

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