Disposed

M/S.Prima Agro (P) Limited v. District Industries Centre

Kerala HC23 Nov 2018WP(C)/23138/2016

Case brief

AI extract

What is this about?

The High Court held that the petitioner is estopped from challenging a condition restricting weigh bridge use after undertaking exclusive use for regularisation. The Court directed the respondent to consider the petitioner's request to delete the condition within six weeks if submitted within two weeks.

What did the court decide?

The writ petition was disposed of; the interim stay order was maintained pending the petitioner's request to delete the restrictive condition; the respondent was directed to consider the request withi

M/S.Prima Agro (P) Limited Vs District Industries Centre — Property and Title | Kerala HC (2018)

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W.P.(C) No.23138 of 2016 1

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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 V.G.ARUN

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FRIDAY, THE 23RD DAY OF NOVEMBER 2018 / 2ND AGRAHAYANA, 1940 WP(C).No. 23138 of 2016

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PETITIONER'S:

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M/S.PRIMA AGRO (P) LIMITED INDUSTRIAL DEVELOPMENT AREA, EDAYAR, COCHIN- 682 110, REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTORMR. S.K. GUPTA.

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BY ADV. SRI.PREMJIT NAGENDRAN

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RESPONDENT:

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DISTRICT INDUSTRIES CENTRE KAKKANAD, ERNAKULAM, PIN-683110 REPRESENTED BY ITS GENERAL MANAGER.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.23138 of 2016 2

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V.G.ARUN, J.

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W.P.(C) No.23138 of 2016

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Dated this the 23^rd day of November, 2018

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JUDGMENT

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The petitioner is an assignee of land in Edayar Industrial Estate. On assignment of land in the year 1995, the petitioner constructed a factory and commenced commercial production. A weigh bridge of 30 tonnes capacity was also installed in the land, after obtaining requisite sanction. As the weigh bridge had undergone wear and tear over the years, the petitioner decided to replace the 30 tonnes weigh bridge and construct 100 tonne weigh bridge.

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In the writ petition it is stated that when the petitioner commenced construction of the 100 tonne weigh bridge, there were objections from the local people as well as the Kadungalloor Grama Panchayath. The objection by the local people was for the reason that construction of the new weigh bridge would obstruct the free flow of rain water. This issue was resolved by the petitioner by constructing a drain to ensure continued free flow of the rain water. The objection from the Kadungalloor Grama

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W.P.(C) No.23138 of 2016 3

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Panchayath was on the alleged reason that the construction was being effected without obtaining permission from the Panchayath. On being convinced that the construction being effected in an industrial area, no permission from the Panchayath is required, the Panchayath withdrew its objection.

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It is submitted that around the same time, the respondent issued Ext P3 notice, requiring the petitioner to show cause as to why action should not be taken for violation of the Land Assignment Rules and conditions of agreement executed by the petitioner, for the reason that the petitioner was constructing a weigh bridge in the land assigned to him, for public utilisation. The petitioner submits that faced with a situation where it was not possible for him to go on with the construction, he had submitted Ext P3 reply stating that the weigh bridge is not meant for any public purpose or for generating any income from the public. In the reply it was assured that the weigh bridge would not be used for any purpose other than the petitioner's own use. In order to get over the allegation that the petitioner had commenced construction of the new weigh bridge without necessary sanction/approval from the respondent, the petitioner submitted Ext P5 formal request for sanction for erecting the new weigh bridge of 100 tonnes capacity. In Ext P5 also there was an

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W.P.(C) No.23138 of 2016 4

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unequivocal undertaking by the petitioner that the new weigh bridge of enhanced capacity under construction is not meant for any public purpose or for generating any additional income from the public. Accepting the apology offered by the petitioner for not obtaining prior sanction for constructing the new weigh bridge and also based on the undertaking by the petitioner that the new weigh bridge is for the exclusive use of the petitioner's establishment and that it will not be used to generate income from the public, the respondent issued Ext P8 order, regularising the construction of the 100 tonnes capacity weigh bridge by the petitioner on specified conditions. The Writ Petition has been filed aggrieved by the condition No.1 in Ext P8, which stipulate that the 100 tonne capacity weigh bridge will be utilised only for

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weighing the raw materials brought to the factory of the petitioner and the finished goods transported outside the factory premises.

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The petitioner challenges condition No.1 in Ext P8 on the ground that it is discriminatory, in as much as other factories in the Edayar industrial area are permitted to offer its services to the public. The other ground of challenge is that in the absence of any specific provision under the Land Assignment Act, the respondent has acted without authority in including a restrictive

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W.P.(C) No.23138 of 2016 5

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clause in Ext P8. The learned Government Pleader opposes the prayer of the petitioner contending that after having obtained Ext P8 regularisation order based on the undertaking that the petitioner would not use the weigh bridge for generating income from the public, the petitioner is estopped from challenging condition No.1 incorporated in Ext P8 based on its undertaking.

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I find considerable force in the submission of the learned Government Pleader. As would be evident from Ext P3, the land in the industrial area was assigned to the petitioner with the rider that the land shall be used only for the purpose for which it is assigned and for no other purpose. In the reply to Ext P3 show cause notice the petitioner undertook and assured that the new weigh bridge would be utilised for the petitioner's purpose alone and that the service would not be offered to the public, for generating income. Having thus prompted the respondent to regularise the construction of the new weigh bridge, undertaken without prior sanction from the respondent, the petitioner cannot later turn around and challenge the condition incorporated pursuant to its undertaking and assurance. Therefore, the prayer to quash Ext P8 to the extent it restricts the use of the weigh bridge by the petitioner alone cannot be granted.

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It is the specific case of the petitioner that other weigh

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W.P.(C) No.23138 of 2016 6

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bridges in the Edayar industrial area are providing service to the public and are charging fees, as would be evident from Exts P9 series of receipts. The petitioner further submits that he has been offering service to the public on the strength of the interim order dated 5.8.2016, by which condition No.1 in Ext P8 was stayed. The aforesaid contentions were never raised before the respondent. Therefore, it is for the petitioner to make an appropriate request before the respondent for deleting condition No.1 in Ext P8 order, taking into consideration the circumstances mentioned above. If such a request is made by the petitioner within a period of two weeks from the date of receipt of a copy of this judgment, the respondent shall consider the same in accordance with law and take a decision thereon within a period

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of six weeks from the date of receipt of such request. For effectuating such consideration, the interim order granted in this case would be maintained till a decision is taken by the respondent, provided the petitioner submits a request within the time limit.

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The Writ Petition is disposed of as above.

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Sd/- V.G.ARUN, JUDGE

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cms

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W.P.(C) No.23138 of 2016 7

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.	P1	PHOTOSTAT COPY OF THE LETTER ISSUED BY THE ASSISTANT ENGINEER, P.W.D. DATED 26.05.2015.
EXT.	P2	PHOTOSTAT COPY OF THE LETTER ISSUED BY THE KADANGALLUR PANCHAYATH DATED 10.09.2015.
EXT.	P3	PHOTOSTAT COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE RESPONDENT DATED 31.08.2015.
EXT.	P4	PHOTOSTAT COPY OF THE REPLY FILED BY THE PETITIONER TO EXT. P-3 NOTICE DATED 07.09.2015.
EXT.	P5	PHOTOSTAT COPY OF THE LETTER SENT BY THE PETITIONER TO THE RESPONDENT 17.09.2015.
EXT.	P6	PHOTOSTAT COPY OF THE LETTER ISSUED BY THE KADANGALLUR PANCHAYATH DATED 13.12.2015.
EXT.	P7	PHOTOSTAT COPY OF THE LETTER ISSUED BY THE KADANGALLUR PANCHATH DATED 07.01.2016.
EXT.	P8	PHOTOSTAT COPY OF THE SANCTION ORDER ISSUED BY THE RESPONDENT DATED 12.02.2016.
EXT.	P9(A)	PHOTOSTAT COPY OF THE RECEIPT ISSUED BY SURAJ CHEMICAL COMPANY WEIGH BRIDGE DATED 29.06.2016.
EXT.	P9(B)	PHOTOSTAT COPY OF THE RECEIPT ISSUED BY CSPL WEIGH BRIDGE DATED 29.06.2016.
EXT. RESPO cms	P9(C) NDENTS EXTS	PHOTOSTAT COPY OF THE RECEIPT ISSUED BY JAINS WEIGH BRIDGE DATED 29.06.2016. NIL /TRUE COPY/ P.S.TO JUDGE

M/S.Prima Agro (P) Limited v. District Industries Centre

Case brief

What is this about?

What did the court decide?

M/S.Prima Agro (P) Limited v. District Industries Centre

Case brief

What is this about?

What did the court decide?

What the court decided

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