Dismissed

J.Juna v. the General Manager

Kerala HC4 Jan 2023WA/1933/2022

Case brief

AI extract

What is this about?

The High Court of Kerala through a Writ Appeal dismissed the appeal challenging the resumption of industrial land. Upholding the impugned judgment, the Court held that the appellant failed to commence the industry within the allotted time despite receiving different plots, finding no illegality in the resumption order.

What did the court decide?

The writ appeal was dismissed with no order for restitution of the land.

J.Juna Vs the General Manager — Contract and Commercial Disputes | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 4^TH DAY OF JANUARY 2023 / 14TH POUSHA, 1944

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WA NO. 1933 OF 2022

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AGAINST THE JUDGMENT IN WP(C)27501/2016 OF HIGH COURT OF KERALA DATED 24.3.2022

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APPELLANT/PETITIONER IN W.P.:

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J.JUNA , AGED 42 YEARS, W/O. J. LEYONA JOHN, 162/7, KOYYAMARAKKAD, N H. ROAD, KANJIKODE, PALAKKAD.

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BY ADVS.SINDHU SANTHALINGAM A.D.SHAJAN

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RESPONDENTS/RESPONDENTS IN W.P.:

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1 THE GENERAL MANAGER DISTRICT INDUSTRIES CENTRE, PALAKKAD- 678 001.

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2 DIRECTOR OF INDUSTRIES AND COMMERCE, OFFICE OF THE DIRECTOR OF INDUSTRIES AND COMMERCE, THIRUVANANTHAPURAM - 695 001.

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3 STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, INDUSTRIES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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SRI.TEKCHNAD.V, SR.G.P.

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WA.1933/2022

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JUDGMENT

Dated this the 4^th day of January, 2023

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S. MANIKUMAR, CJ

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Appellant, who is stated to be an unemployed youth, has filed the instant writ appeal, being aggrieved by the judgment dated 24.03.2022 in W.P.(C) No.27501 of 2016.

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Short facts leading to the filing of this writ appeal are that; appellant/writ petitioner has applied for allotment of 20 cents of land to start a Small Scale Industrial Unit, by name M/S. Janine Pet, in an Industrial Development area, at Kanjikode, Palakkad district. According to the appellant, the land allotted to her at first was a marshy land, not fit for any industrial or other purpose.

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Appellant has further stated that the boundaries of the plot allotted initially could not be identified since the property was completely waterlogged. Since the land initially allotted was completely useless, she preferred Exts.P3 and P4 representations for substituting the said land with a better one. Later, another land having an extent of 20 cents was allotted to the appellant by respondents 1 and 2 [the General Manager, District Industries Centre, Palakkad and the Director of Industries and Commerce, Thiruvananthapuram].

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According to the appellant, the substituted land was also equally marshy and, therefore, the proposed industry could not be commenced, within the stipulated time. The appellant has made improvements to the said land by filling it with earth, for which he expended a substantial amount to the tune of Rs.20/- lakhs. However, the land was resumed without taking into account the insurmountable difficulties of the petitioner in commencing the industry and the amounts spent by her.

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It is submitted by Mr. Abraham George, learned counsel for the appellant, that the second allotment of 20 cents of land to the appellant was not recorded nor an agreement was executed between the appellant and third respondent [State of Kerala, represented by Secretary to Government, Industries Department]. The appellant was informed that since the survey number remains the same, it was not necessary for another agreement.

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It is further submitted that the second allotment was also a pond and the appellant had to again fill up and develop the land. However, the first respondent [the General Manager, District Industries Centre, Palakkad] issued Ext.P6 proceedings directing to resume possession of 20 cents of land allotted to the appellant. Being aggrieved, appellant preferred W.P.(C) No.27501/2016 seeking for the following reliefs:

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“a) call for the records connected with the case;

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b) issue a writ of certiorari or appropriate writ order or direction to quash Ext. P6 order;

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c) declare that the delay in starting the industry was caused due to the allotment of unsuitable land twice for constructing the industrial building.”

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Refuting the averments made and reliefs sought for by the

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writ petitioner, 1^st respondent - the Manager of District Industries Centre, Palakkad, has filed a counter affidavit dated 31.10.2016, inter alia, contending that, the condition of the land was clearly aware to the appellant/writ petitioner, at the time of allotment, and boundaries of the land were earmarked and sketch of the land prepared by the Village Officer was also given to the appellant. Later, appellant submitted a representation before the General Manager, District Industries Centre, Palakkad, narrating the difficulties faced by her, in developing the land, and accordingly, she was granted another 20 cents of land adjacent to the originally allotted plot.

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It was also contended that the boundaries of the land were earmarked and a sketch of the land was given to the appellant. She was also requested to execute a revised agreement with the Government, as the plot allotted was changed vide office letter No.12/2220/2010 dated 07.06.2014. But, so far, no agreement is executed in this regard and the land is kept idle. Accordingly on

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28.10.2014, she was directed to explain the reasons for not utilizing the land, otherwise, the land allotted will be resumed. But no reply was received from her.

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Again, a registered notice was served to her on 20.04.2016 for submitting the reason for not starting the enterprise and she was also requested to come over to the office on 24.05.2016, for a personal hearing. If the land allotted was not suitable to establish her venture, as alleged, she could have informed the position to the office of the 1^st respondent and could request for new allotment. Again, the land allotted was not utilized for establishing the enterprise and the appellant has not initiated any steps to construct the proposed building, as per the plan submitted to the General Manager, District Industries Centre, Palakkad, at the time of submission of application. Since the explanation offered by her was not found satisfactory, the land allotted to her was resumed vide proceedings dated 29.07.2016 and the resumption order is as per the provision contained in the GO(MS) No. 169/69/ID dated 05.04.1969. For the foregoing reasons, 1^st respondent prayed for dismissal of the W.P.(C).

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Record of proceedings reveal that pursuant to the direction of this Court, an Advocate Commission was appointed and a report dated 14.10.2016 was filed before this Court. Summary of learned

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Advocate Commissioner’s report dated 14.10.2016 is reproduced hereunder:

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“It is found that the wetland has been destroyed in the name of industrial development. Now, the first allotted pond is fully filled up by the petitioner and she partially filled the 2^nd allotted pond. It is the failure on the part of the petitioner that they have not communicated with the District Industrial Centre (1^st Respondent herein) properly.

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Petitioner submitted that they must have started the work if they continued working in the first allotted plot. It is true that they have spent huge money for leveling such a big pond. Petitioner seeks six months time to continue the work in the second allotted plot.

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So far, District Industrial Centre has not raised any dispute regarding the allotment of the 2^nd allotted plot, but they have a dispute regarding the unused land because a huge amount of Government is utilized for the industrial development in Kanjikode.

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If the petitioner properly maintains and constructs the manufacturing unit of pet bottles called M/s. Janine Pet, then there is no dispute. It is found that six months’ time period is reasonable because so much earnings of the petitioner is put in use for leveling the plot. But, further extension of time other than the six months is not at all feasible. The authorities may take actions, if the petitioner again fails in further development of the land.”

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After considering the rival contentions, writ court, vide impugned judgment, disposed of the writ petition, holding as under:

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“6. Having heard the learned counsel appearing on both sides, this Court finds no merit in the writ petition. As rightly pointed out by the learned Government Pleader, the petitioner was given ample time spreading from 2012 to 2016 by allotting two different plots for commencement of an industrial activity, which is not done admittedly. Clause 16 of the Kerala Allotment of Government Land in Development Areas on Hire Purchase for Industrial Purpose Rules, pointed out by the learned counsel for the petitioner, affords abundant discretion on the authority in the matter of granting extension of time, to be exercised depending upon various

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factors, including the steps taken by the petitioner to commence the activity.

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In the instant case, having regard to the relevant facts as narrated by the Government Pleader, this Court finds no illegality or infirmity on the action of respondents 1 and 2 in not granting extension of time. Mere reclamation of land, albeit expenditure to the tune of Rs.20 lakhs claimed, cannot be considered as an 'improvement of an appreciable nature', in the context of commencement of an industry. That apart, this Court also takes note that the notices issued to the petitioner calling upon her explanation for not commencing the industry were not properly responded with. Having failed to do so, the petitioner cannot make a legitimate grievance at this distance of time. I also find no merit in the petitioner's contention, as espoused in Ext.P4 representation, that even the substituted land allotted is not suitable for industrial purposes. I am afraid whether the petitioner can adopt such a contention in the year 2016, when the petitioner accepted the second allotment in 2014, with full knowledge as regards the nature and lie of the land, as also, its viability in the context of commencing an industrial activity. I, therefore, find no reason to interfere with Ext.P6 order, whereby the land is resumed by the first respondent. I may hasten to add that the land is given only on lease/hire purchase for a definite purpose and the failure of the allottee to comply with the said purpose would inevitably result in the consequence of resumption of land by the authority concerned.

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Petitioner's contention, followed by a fervent request made by the learned counsel that the petitioner had expended a substantial amount for filling up the land, which is admittedly a marshy land as could be seen from the photographs produced by the Commissioner, as also her report, is however taken note of. Petitioner seeks to reserve her right to move the appropriate authority to reimburse the said amount spent by her. It is open for the petitioner to do so, in which case, the authority concerned is directed to pass appropriate orders, after hearing the petitioner, and after considering the materials produced by the petitioner in support of her claim, within a period of four months from the date of receipt of such request.”

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Being aggrieved, instant writ appeal is filed.

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Heard Mr. Abraham George, learned counsel for the appellant; Mr. Tek Chand V., learned Senior Government Pleader; and perused the material on record.

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The elaborate discussion of facts on the basis of the rival pleadings made by the parties, would make it clear that the appellant failed to execute the agreement, construct buildings, and start the unit, for which the plot was allotted originally and thereafter. The purpose of allotting the plot in an industrial area is to see that industries are started and manufacturing activities are carried on, in order to open up avenues for employment and generate tax for the Government.

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The case projected by the appellant is that both the plots allotted to her were not satisfactory in nature so as to start an industrial unit. However, the fact remains, the appellant has accepted the allotment of the plot, but has not done anything except stating that she had to develop the land by filling up with earth, since the plot allotted was a marshy land. In our view, these circumstances projected by the appellant are not sufficient enough to establish that due to reasons beyond control of the appellant, the industry could not be started.

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So also, it is to be noted that before resumption of the plot, the appellant was given notice. However, in that process also,

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appellant could adduce any satisfactory evidence to show what prevented her from starting the industrial unit, for reasons beyond her control.

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Giving due consideration to the entire facts and circumstances of the case, we are also of the view that the lands allotted were not utilized for establishing the enterprise and appellant has not initiated any steps to construct the proposed building. Moreover, the appellant was given sufficient time from 2012, by allotting two different plots for commencement of the proposed industrial activity. After considering the entire pros and cons of the matter only, learned single Judge, in the impugned judgment, held that there is no arbitrariness or illegality in ExhibitP6 order, susceptible to be interfered in a proceeding under Article 226 of the Constitution of India.

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In the light of the above, we do not find any jurisdictional error or other legal infirmities, in the view taken by the learned single Judge. Needless to say, the appeal fails and accordingly it is dismissed.

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SD/S.MANIKUMAR CHIEF JUSTICE

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SD/SHAJI P. CHALY JUDGE

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jes & krjxxxx

J.Juna v. the General Manager

Case brief

What is this about?

What did the court decide?

J.Juna v. the General Manager

Case brief

What is this about?

What did the court decide?

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