JIS International Exports Pvt. Ltd. v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942** ## **WP(C).No.26323 OF 2020(M)** ## **PETITIONER:** **JIS INTERNATIONAL EXPORTS PVT. LTD. CHEMICAL INDUSTRIAL ESTATE, AROOR, ALAPPUZHA, HAVING REGISTERED OFFICE AT G/107 1ST FLOOR, PANAMPILLY NAGAR, KOCHI-682 036,** **REPRESENTED BY MANAGING DIRECTOR, MR DOMINIC SEBASTIAN, AGED 65, S/O LATE MATHEW SEBASTIAN,, 15EI, RDS AVENUE, 14TH FLOOR, PANAMPILLY NAGAR, ERNAKULAM-682036.** **BY ADV. SRI.P.V.GEORGE (PUTHIYEDAM)** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO INDUSTRIES AND COMMERCE, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 DIRECTORARTE OF INDUSTRIES AND COMMERCE REPRESENTED BY DIRECTOR, VIKAS BHAVAN, VIKAS BHAVAN P O, THIRUVANANTHAPURAM-695033.** - **3 DISTRICT INDUSTRIES CENTRE REPRESENTED BY GENERAL MANAGER, OFFICE OF DISTRICT INDUSTRIES CENTRE, VELLAKKINAR P O, ALAPPUZHA-688001.** - **4 KERALA STATE POLLUTION CONTROL BOARD REPRESENTED BY CHAIRMAN, PATTOM P O, THIRUVANANTHAPURAM-695004.** - **5 TAHSILDAR TALUK OFFICE, CHERTHALA, CHERTHALA P O, ALAPPUZHA-688524.** - **R1-3, R5 BY SRI. JESTIN MATHEW GOVERNMENT PLEADER R4 BY SRI. T.NAVEEN SC, KERALA STATE POLLUTION CONTROL BOARD,** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.26323 OF 2020** **2** ## **JUDGMENT** The 3rd respondent in exercise of the powers conferred upon him as the General Manager of the District Industries Centre has ordered the resumption of property having an extent of 100 cents allotted to the petitioner in the Industrial Development Area, Aroor for non-utilisation of land. By the very same order, the property was earmarked for setting up a Common Effluent Treatment Plant as ordered by the Hon’ble Supreme Court and the National Green Tribunal. 2. Being aggrieved, the petitioner is before this Court. 3. The Government has set up industrial development areas in various districts for setting up industrial units. The powers have been delegated to the General Manager, District Industries Centre to allot land in such areas. By order dated 13.5.1988, permission was accorded to transfer property having an extent of 185 cents in the industrial development area, Aroor, to St Mary’s Oil Mills for setting up a unit for manufacture of coconut oil. Later due to various factors, the business fell into bad weather. They sought permission to transfer the said plot to the petitioner, a company registered under the Companies Act and engaged in seafood processing. **WP(C).No.26323 OF 2020** **3** 4. Permission as sought for was granted by the 3rd respondent and based on the same St. Mary’s Oil Mills executed Ext.P1 sale deed in favour of the petitioner. The petitioner states that they constructed a cold storage by investing a sum of Rs.6.75 Crores in 85 cents of property assigned to them and the same was commissioned in the year 2011. The balance extent of 100 cents was set apart for further expansion. When the petitioner approached the financial institutions seeking financial aid for carrying out the expansion, they demanded Patta which was not granted by the Government. 5. While so, Ext.P4 show cause notice was issued calling upon the petitioner to explain why the unutilised portion shall not be resumed. The petitioner submitted Ext.P5 reply stating the reasons which prevented him from carrying out the expansion activities. Various communications followed and finally on 28.2.2020 Exhibit P9 styled as a final notice was issued to the petitioner and his explanation was sought. The petitioner states that they submitted Exhibit P10 reply explaining their contentions. However, by Exhibit P12 order, 100 cents of property allotted to the petitioner was ordered to be resumed and the said property was allotted for setting up a Common Effluent Treatment Plant (CETP) to comply with the directions of the Honourable Supreme Court as well as the National Green Tribunal. 6. The petitioner contends that a perusal of the impugned order **WP(C).No.26323 OF 2020** **4** would reveal that the third respondent had exercised his power in exercise of the general orders issued by the Government referred to as item Nos. 4 and 16 in the impugned order. According to the petitioner, the said order mandates that if the industrial land allotted is not fully utilised, then the unutilised portion shall be resumed only after giving an opportunity of being heard to the party concerned. He contends that in violation of the Rules and the principles of natural justice, no pre-decisional opportunity was granted. This is clearly unjust and a case of abuse of power. It is in the above circumstances, the petitioner is before this Court seeking to quash Ext.P12. 7. In the counter affidavit filed by the 3rd respondent it is stated that despite the receipt of numerous notices calling upon the petitioner to utilise the land, no steps were taken. It is stated that the reply given by the petitioner was unsatisfactory. It is further stated that the Chairman, Kerala State Pollution Control Board had directed the 3rd respondent to furnish an explanation for not providing Common Effluent Treatment Plant in the development area. This was based on directions issued by the Hon’ble Supreme Court as well as the National Green Tribunal Act. Except for the property allotted to the petitioner, which is lying unutilised, there is no other property suitable in the Industrial Area to be used for the purpose. According to the respondents, the order passed is legal and proper and do not warrant any interference. **WP(C).No.26323 OF 2020** **5** 8. I have heard Sri.P.V. George Puthiyedam, the learned counsel appearing for the petitioner and Sri. Jestin Mathew, the learned Government Pleader. 9. The learned counsel pointed out that the respondents have no case that the petitioner was heard after Exhibit P9 notice was served on him. He would also argue that nowhere in the impugned order has it been mentioned that such an opportunity was granted. He would specifically refer to paragraph No.8 of the counter affidavit filed by the 3rd respondent and it is argued that the rules clearly state that the party should be heard before the land is resumed for non-utilization. 10. The learned Government Pleader has strenuously opposed the prayer. He points out that numerous notices were issued to the petitioner and it was when no steps were taken by the petitioner herein to utilise the area, that the property was resumed. 11. I have considered the submissions advanced and have gone through the exhibits as well. As rightly submitted by the learned counsel appearing for the petitioner, nowhere in the order has it been stated that the petitioner was heard prior to resumption of land. The respondent in paragraph 8 of the counter affidavit has stated in unequivocal terms that as per Rule 24(IV) of the Land Allotment Rules formed vide G.O(MS) No. **WP(C).No.26323 OF 2020** **6** 8/2020/ID dated 8.1.2020 of the Industries (F) Department, resumption of land can be only after granting an opportunity of being heard to the allottee. In the case on hand admittedly resumption was ordered without hearing the petitioner. It is well settled that justice should not only be done, but manifestly and undoubtedly be seen to be done. It is the dialogue with the person likely to be affected by the proposed action which meets the requirement that justice must also be seen to be done. The procedural safeguards have been imposed as per the rules to ensure that there is an institutional check on arbitrary action on the part of the authorities. 12. As held by the Apex Court in **Union of India v. Tulsiram Patel[1]** , the right to be heard has two facets, intrinsic and instrumental. The intrinsic value of that right consists in the opportunity which it gives to individuals or groups against whom decisions taken by public authorities operate, to participate in the processes by which those decisions are made, an opportunity that expresses their dignity as persons. The instrumental facet of the right of hearing consists in the means which it affords of assuring that the public rules of conduct, which results in benefits and prejudices alike, are in fact accurately and consistently followed. The records clearly show that the petitioner was not granted a pre-decisional hearing before ordering resumption. In that view of the matter, I am 1 [(1985) 3 SCC 582] **WP(C).No.26323 OF 2020** **7** unable to sustain Ext.P12. 13. At this stage, the learned Government Pleader submitted that the petitioner can be heard at an early date and orders can be passed. Having considered all the relevant facts, I quash Ext.P12 order passed by the 3rd respondent. The petitioner shall appear before the 3rd respondent on 19.1.2021 on which day, the petitioner shall be heard as per the Rules and fresh orders shall be passed expeditiously, at any rate, within a period of two weeks from the date of hearing. This writ petition is disposed of. **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** NS **WP(C).No.26323 OF 2020** **8** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE SALE DEED NO.2127/2010 OF S.R.O KUTHIYATHODU** **EXHIBIT P2** **TRUE COPY OF THE PATTA NO.G1/7901/12 DATED 15.12.2017 ISSUED BY THE 5TH RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE RENEWAL CERTIFICATE ISSUED BY 4TH RESPONDENT ON 27/7/2019.** - **EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 20.04.2018 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE REPLY DATED 2.5.2018 SENT BY PETITIONER FOR EXHIBIT-P4.** - **EXHIBIT P6 TRUE COPY OF THE LETTER DATED 16.10.2018 SENT BY PETITIONER TO 3RD RESPONDENT.** - **EXHIBIT P7** - **TRUE COPY OF THE LETTER DATED 5.11.2018 SENT BY 3RD RESPONDENT FOR EXHIBIT-P6.** - **EXHIBIT P8 TRUE COPY OF THE LETTER DATED 6.12.2018 SENT BY PETITIONER TO 3RD RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF THE LETTER DATED 28.2.2020 SENT BY THE 3RD RESPONDENT.** - **EXHIBIT P10 TRUE COPY OF THE REPLY DATED 10.03.2020 SENT BY PETITIONER TO 3RD RESPONDENT.** - **EXHIBIT P11 TRUE COPY OF THE LETTER DATED 13.3.2020 SENT BY PETITIONER TO MINISTER FOR INDUSTRIES.** - **EXHIBIT P12 TRUE COPY OF THE ORDER DATED 5.11.2020 PASSED BY THE 3RD RESPONDENT.** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R3(A) A TRUE PHOTO COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT IN WP(C) 375/2012 DATED 22.02.2017.** **WP(C).No.26323 OF 2020** **9** **EXHIBIT R3(B) ORDER OF THE NATIONAL GREEN TRIBUNAL IN OA 673/2018 DATED 20.09.2018. EXHIBIT R3(C) ORDERS OF THE NATIONAL GREEN TRIBUNAL IN OA 673/2018 DATED 19.12.2018.**