Allowed

Rupen Philip, v. State of Kerala

Kerala HC8 Jan 2019WP(C)/503/2019

Case brief

AI extract

What is this about?

Petitioner sought transfer of industrial land from proprietorship to partnership firm. Court held pre-existing hire-purchase norms apply to transfers of land allotted before new lease norms, quashing orders applying the new regime and remitting matter for fresh consideration.

What did the court decide?

Impugned orders set aside; transfer application remitted to authorities for consideration based on pre-existing hire-purchase norms within six weeks.

Rupen Philip, Vs State of Kerala — Company and Corporate | Kerala HC (2019)

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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 ALEXANDER THOMAS

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TUESDAY ,THE 08TH DAY OF JANUARY 2019 / 18TH POUSHA, 1940

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WP(C).No. 503 of 2019

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PETITIONER/S:

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RUPEN PHILIP, THOPPIL HOUSE, PAKKIL P.O., NATTAKOM VILLAGE, KOTTAYAM DISTRICT, PIN- 686012, PROPRIETOR, THOPPIL ENTERPRISES, DEVELOPMENT PLOT, POOVANTHURUTH, KOTTAYAM, PIN- 686012.

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BY ADV. SRI.K.M.VARGHESE

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RESPONDENT/S:

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1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF INDUSTRY, SECRETARIAT, THIRUVANANTHAPURAM- 695001.

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2 THE DIRECTOR OF INDUSTRIES AND COMMERCE, VIKAS BHAVAN, THIRUVANANTHAPURAM- 695033.

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3 THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, KOTTAYAM- 686002.

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OTHER PRESENT:

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SRI.SAIGI JACOB PALATTY,SR.GOVT.PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C)No.503/2019

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ALEXANDER THOMAS, J.

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W.P.(C)No.503 OF 2019

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Dated this the 8^th day of January, 2019

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JUDGMENT

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The prayers in the above Writ Petition (Civil) are as follows :

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“i) Issue a writ of certiorari or any other appropriate writ or order calling for the records leading to Ext.P8 and Ext.P9 and quash the same.

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ii) Issue a writ of mandamus or any other appropriate writ or order directing the respondents No.2 and 3 to finalise Ext.P4 applications submitted by the petitioner based on the Rules applicable to Hire Purchase basis as evidenced by Ext.P6 and Ext.P7 within a time frame fixed by this Hon'ble Court;

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iii) To declare that the respondents are not entitled amount under the head difference in land value for effecting the transfer as per Ext.P4 as the petitioner had obtained the land allotted on outright purchase as evidenced by Ext.P1, Ext.P1(a) and Ext.P1(b) and

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iv) Such other writ, orders and interim orders deem fit to grant in the nature and circumstances of the case.”

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The petitioner is running an industrial unit presently named as

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“M/s. Thoppil Enterprises” as a sole proprietory concern in the industrial

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development plot, Poovanthuruth at Kottayam under the 3^rd respondent District Industries Centre, Kottaym. Originally the petitioner had applied for

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W.P.(C)No.503/2019

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allotment of 10 cents of land for setting up the industrial unit in the said industrial plot of land under the 3^rd respondent and initially 6.45 cents of land was duly alloted to the petitioner in the year 1996 as per Ext.P1 proceedings dated 31.7.1996 issued by the 3^rd respondent and Ext.P1(a) articles of agreement dated 31.7.1996 executed by the petitioner with the 3^rd respondent. The said allotment as per Ext.P1 series was on higher purchase basis as per the Rules for Allotment of Land in Development Plots on Hire Purchase Basis 1970 which envisages right to purchase the land alloted on full payment of value fixed and outright purchase with right to transfer with the approval of authorities. That the said 6.45 cents of land was thus initially alloted as per Ext.P1 series and thus obtained by the petitioner on outright purchase by paying the full due amounts. There is yet another averment made in favour of the petitioner as per Ext.P2 series dated July 2001 in respect of 6.96 cents of land which was so obtained by him after paying the entire due amounts in instalments instead of outright payment as in Ext.P1 series. The allotment of industrial plot of land as per Ext.P2 series still continues to be in the name of the sole proprietory concern of the petitioner and petitioner does not intend to transfer the said plot of land covered by Ext.P2 series to the new partnership firm formed by him. According to the petitioner, in respect of the plot of land covered by Ext.P1 series, he wanted

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W.P.(C)No.503/2019

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some changes in the business in the running of the unit pertaining to Ext.P1 series and therefore he formed a partnership firm consisting of himself as a partner, his wife and his wife's brother as as partners since additional funds are required to be invested for the new proposed activities of that unit. Accordingly, the petitioner sought transfer of the plot of land covered by Ext.P1 series which was obtained by him on hire purchase basis, to the name of the said partnership firm formed by him and Ext.P4 and P4(a) applications have been duly submitted in that regard. By the impugned Ext.P8 proceedings dated 17.11.2016 the second respondent Director of Industries and Commerce has taken the stand that transfer of the said industrial plot of land covered by Ext.P1 series can be made in the name of the partnership firm only on lease basis and not on the original hire purchase basis. Ext.P9 is the consequential proceedings in that regard issued by the 3^rd respondent General Manager, District Industries Centre.

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The 2^nd and 3^rd respondents would take the stand that their view in the impugned Exts.P8 and P9 is justified in view of the new norms introduced by the Government as per Ext.P5 G.O.(MS)No.60/2013/ID dated 10.6.2013 which has stipulated that from then forth the allotment will be on lease basis and not on hire purchase basis. However, the competent authority of the first respondent State Government has already clarified and declared in

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W.P.(C)No.503/2019

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Ext.P6 G.O.(MS)No.110/2013/ID dated 13.9.2013 that the allotment of land on lease basis as per Ext.P5 G.O.(MS)No.60/2013/ID dated 10.6.2013 will apply only to future cases and not to cases in which land has already been allotted or assigned on hire purchase basis. It has again been reiterated by the first respondent State Government in Ext.P7 Government letter dated 2.12.2013 that the new norms in Ext.P5 G.O.(MS)No.60/2013/ID dated 10.6.2013 for allotment of land on lease basis will be applicable only for allotments made on or after the date of issuance of Ext.P5 G.O.(MS) No.60/2013 dated 10.06.2013 which means that it applies only to cases where fresh allotment is made to plots or to any lands or plots resumed or patta cancelled which comes to the possession of District Industries Centre and that in all the other cases, the application for transfer etc. shall be regulated with the pre- existing norms which was prior to Ext. P5 G.O. (MS)No.60/2013/ID dated 10.6.2013. Hence the clear impact of Ext.P6 and P7 that the new norms of Ext.P5 for allotment of industrial plots on lease basis will apply only for fresh allotments made on or after 10.06.2013 and will not apply to cases of transfer where original allotments were made on the basis of pre-existing norms governing hire purchase transfer.

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The matter in issue is no longer res integra and is fully covered in favour of the petitioner and against the respondents by virtue of the dictum

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W.P.(C)No.503/2019

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laid down by this court in a series of cases as in Ext.P11 judgment dated 6.2.2018 in W.P.(C)No.2736/2018, Ext.P14 judgment dated 6.12.2018 in W.P. (C)No.39673/2018, etc. It is also not in dispute that pursuant to the specific directions issued by this Court in Ext.P11 judgment in W.P.(C)No.2736/2018 the respondent has already complied with the said orders of this court in the case of the petitioner therein as per Ext.P12 proceedings dated 25.4.2018 issued by the 2^nd respondent whereby transfer of land to the petitioner therein has been made as per the pre-existing norms and not on the new norms of lease basis etc. Accordingly it is ordered that the orders and directions already issued by this court in the judgments as per Ext.P11 and P14 will be applicable in this case as well. Hence, it is ordered that the impugned Exts.P8 and P9 will stand set aside and the request of the petitioner will stand remitted to the 2^nd and 3^rd respondents for consideration afresh. The 2^nd and 3^rd respondents will ensure that the transfer of industrial plot of land from the name of the proprietory concern of the petitioner to the partnership firm formed by the petitioner will be considered and granted on the basis of the pre-existing norms of hire purchase basis and not on the basis of new norms contained in Ext.P5 G.O.(MS)No.60/2013/ID dated 10.6.2013. It is not in dispute that the original allotment of the industrial plot of land as per Ext.P1 series has been made long prior to the coming into force of new norms as per

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Ext.P5 G.O.(MS)No.60/2013 dated 10.6.2013 and hence the said directions are fully justified and called for. Orders as aforestated will be duly passed

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on Ext.P4 series applications by respondents 2 and 3, after granting opportunity of being heard to the petitioner, within six weeks from the date of production of a copy of this judgment.

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The petitioner has also raised an incidental grievance that the 3^rd respondent has also insisted payment under the head difference in land value for processing Ext.P4 application for transfer and the petitioner was constrained to make payments as evidenced by Ext.P13 towards difference in the land value. The petitioner's specific contention is that since the respondents have already received the full amount both in respect of Ext.P1 series of allotment and also in respect of Ext.P2 series of allotment, the said insistence by the respondents for payment of the land value difference is illegal and improper and would amount to unjust enrichment. As already directed by this court in the judgment as per Ext.P14, it is ordered that it is for the petitioner to raise the said grievance by filing appropriate representation before respondents 2 and 3 and raise a contention explaining why the said demand is illegal and unjust and the said aspect should also be duly considered by the 2^nd respondent and orders in that regard should also be passed by the 2^nd respondent after granting an opportunity of being heard to

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W.P.(C)No.503/2019

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the petitioner without much delay preferably within a period of six weeks from the date of submission of the said representation along with a certified copy of this judgment.

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With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.

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Sd/ALEXANDER THOMAS JUDGE

sv.

W.P.(C)No.503/2019

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE PROCEEDINGS DATED 31.07.1996 ISSUED BY THE RESPONDENT NO.3.
EXHIBIT P1 A	TRUE COPY OF ARTICLES OF AGREEMENT DATED 31.07.1996 EXECUTED BY THE PETITIONER.
EXHIBIT P1 B	TRUE COPY OF CERTIFICATE DATED 09.08.1996 ISSUED BY RESPONDENT NO.3.
EXHIBIT P2	TRUE COPY OF THE PROCEEDINGS DATED 04.07.2001 ISSUED BY RESPONDENT NO.3.
EXHIBIT P2 A	TRUE COPY OF ARTICLES OF AGREEMENT DATED 09.07.2001 EXECUTED BY THE PETITIONER IN RESPECT OF ADDITIONAL ALLOTMENT.
EXHIBIT P3	TRUE COPY OF PROCEEDINGS DATED 22.03.2006 ISSUED BY THE RESPONDENT NO.3.
EXHIBIT P3 A	TRUE COPY OF THE ACKNOWLEDGEMENT OF REGISTRATION OF FIRMS DATED 06.01.2015 ISSUED BY REGISTRAR OF FIRMS, KERALA.
EXHIBIT P4	TRUE COPY OF THE APPLICATION DATED 19.09.2015 SUBMITTED BY THE PETITIONER TO THE RESPONDENT NO.3.
EXHIBIT P4 A	TRUE COPY OF THE LETTER DATED 19.09.2015 SUBMITTED TO THE RESPONDENT NO.3.
EXHIBIT P5	TRUE COPY OF THE G.O(MS)NO.60/2013/ID DATED 10.06.2013 ISSUED BY THE GOVERNMENT.
EXHIBIT P6	TRUE COPY OF THE G.O(MS)NO.110/2013/ID DATED 13.09.2013 ISSUED BY THE GOVERNMENT.
EXHIBIT P7	TRUE COPY OF THE LETTER DATED 02.12.2013 ISSUED BY INDUSTRIES DEPARTMENT.
EXHIBIT P8	TRUE COPY OF THE PROCEEDINGS DATED 17.11.2016 OF RESPONDENT NO.2.
EXHIBIT P9	TRUE COPY OF THE ORDER DATED 23.08.2017 ISSUED BY THE RESPONDENT NO.3.

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W.P.(C)No.503/2019

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EXHIBIT P10	TRUE COPY OF THE REPRESENTATION DATED 25.04.2018 GIVEN BY THE PETITIONER TO THE MINISTER.
EXHIBIT P11	TRUE COPY OF THE JUDGMENT DATED 06.02.2018 IN W.P(C)NO.2736 OF 2018.
EXHIBIT P12	TRUE COPY OF THE PROCEEDINGS DATED 25.04.2018 ISSUED BY RESPONDENT NO.2.
EXHIBIT P13	TRUE COPY OF THE CHELAN DATED 08.06.2015 ISSUED TO THE PETITIONER.
EXHIBIT P14	TRUE COPY OF THE JUDGMENT DATED 06.12.2018 IN W.P(C)NO.39673 OF 2018.

Rupen Philip, v. State of Kerala

Case brief

What is this about?

What did the court decide?

Rupen Philip, v. State of Kerala

Case brief

What is this about?

What did the court decide?

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