Modern Wood Industries (M/S Modern Garments) v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** ## **THURSDAY, THE 26TH DAY OF SEPTEMBER 2013/4TH ASWINA, 1935** ## **WP(C).No. 26440 of 2010 (D)** **--------------------------------------** **PETITIONER(S): -----------------------** **1. MODERN WOOD INSUDTRIES, (M/S.MODERN GARMENTS), MANIPURAM, KODUVALLY P.O., KOZHIKODE DISTRICT REPRESENTED BY ITS PARTNER T.K. PAREEKUTTY HAJI.** **2. T.K.PAREEKUTTY HAJEE ALIAS T.K.PARIYEYI KUTTY HAJI, S/O.AHAMMEDKUTTY HAJEE, CHALUPAKKIL HOUSE, VAVAD AMSOM, KALANDIRI DESOM, KOZHIKODE TALUK, NOW RESIDING AT EAST NADAKKAVU, KOZHIKODE - 673006.** **3. M.MADHAVAN NAMBUDIRI, S/O.VASUDEVAN NAMBUDIRI, MAKKATTILLATH, PARAMBATHUKAVU AMSOM, MANIPURAM DESOM, KOZHIKODE TALUK.** **BY ADVS.SRI.K.M.FIROZ SMT.M.SHAJNA** **RESPONDENT(S):** **--------------------------** **1. THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE (L), DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. THE SECRETARY TO GOVERNMENT, INDUSTRIES (F) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **3. THE DIRECTOR OF INDUSTRIES AND COMMERCE, VIKAS BHAVAN, THIRUVANANTHAPURAM-695001.** **4. THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, KOZHIKODE-673001.** **PJ** **....2/-** **..2..** **WP(C).No. 26440 of 2010 (D)** - **--------------------------------------** **5. THE DISTRICT COLLECTOR, CIVIL STATION,** - **KOZHIKODE-673001.** **6. THE TAHSILDAR, KOZHIKODE-673001.** **7. THE VILLAGE OFFICER, KODUVALLY VILLAGE,** - **KOZHIKODE673001.** **BY SENIOR GOVERNMENT PLEADER SRI.P.M.SANEER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** **WP(C).No. 26440 of 2010 (D) --------------------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS** - **P1: COPY OF THE ORDER DATED 18/10/1966 ISSUED BY THE GOVERNMENT** - **P2: COPY OF UNDERTAKING DATED 13/11/1972 SUBMITTED BY SHRI.T.I.KUNHAMMED HAJEE BEFORE THE DISTRICT INDUSTRIES OFFICER.** - **P3: COPY OF THE ORDER SANCTIONING ACQUISITION CHARGES DATED 24/3/1975 OF THE DISTRICT INDUSTRIES OFFICER, KOZHIKODE** - **P4: COPY OF THE HIRE PURCHASE AGREEMENT DATED 2/4/1975.** - **P5: COPY OF THE DECLARATION/COMMUNICATION DATED 15/1/1990 ISSUED BY THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE TO THE GOVERNMENT.** - **P6: COPY OF THE GOVERNMENT ORDER, GO(MS)NO.140/90/RD DATED 13/2/1990 SANCTIONING ASSIGNMENT ON REGISTRY OF A EXTENT OF 35 CENTS OF LAND IN R.S.NO.65/7 OF KODUVALLY VILLAGE IN FAVOUR OF THE FIRST PETITIONER FIRM.** - **P7: COPY OF THE PATTAH NO.499 AS PER PROCEEDINGS NO.B1 2762/90 DATED 19/3/1990 IN FAVOUR OF THE FIRST PETITIONER ISSUED BY THE TAHSILDAR, KOZHIKODE.** - **P8: COPY OF THE REPORT DATED 3/12/2009 SUBMITTED BY THE GENERAL MANAGER DISTRICT INDUSTRIES CENTRE** - **P9: COPY OF THE ORDER DATED 31/5/2010 ISSUED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT.** - **P10: COPY OF THE LETTER DATED 11/6/2010 ISSUED BY THE ADDITIONAL CHIEF SECRETARY OF GOVERNMENT, INDUSTRIES F DEPARTMENT.** - **P11: COPY OF THE COMMUNICATION DATED 18/4/2012 BEARING NO.20635/12/2012/REVENUE ISSUED BY THE UNDER SECRETARY TO GOVERNMENT FOR AND ON BEHALF OF ADDITIONAL CHIEF SECRETARY, REVENUE (L) DEPARTMENT, GOVERNMENT OF KERALA.** - **P12: COPY OF THE PROCEEDINGS NO.L6/22968/12 DATED 3/8/2013 OF THE DISTRICT COLLECTOR KOZHIKODE AND PROCEEDINGS NO.30452/10/B1 DATED 3/8/2013 OF THE TAHSILDAR KOZHIKODE.** - **P13: COPY OF THE REPORT OF THE 7TH RESPONDENT VILLAGE OFFICER KODUVALLY DATED 28/11/2012.** ## **RESPONDENTS' EXHIBITS** **NIL.** **/TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **P.R. RAMACHANDRA MENON, J.** ======================== W.P.(C). No. 26440 of 2010 -------------------------------------------Dated this the 26th day of September, 2013 ## **JUDGMENT** The petitioners have approached this Court with the following prayers: “i. To call for the records leading to Exts. P9 and P10 and set aside the same and all proceedings leading to that by issuing a writ of certiorari or any other appropriate writ direction or order. ii. To declare that Section 8 of Kerala Government Land Assignment Act, 1960 and Rules 8, 10, 11, 14 of Rules of Assignment of Government Land for Industrial Purpose is unconstitutional and ultravires Transfer of Property Act. iii. To declare that the non obstante clause in Section 8 fo the Kerala Government Land Assignment Act, 1960 cannot take away the effect of the provisions of Transfer of Property Act. iv. To declare that the Government of Kerala is not entitled to cancel registry of property and improvements covered by Ext.P7 and to resume the same. v. To declare that the conditions in Ext.P7 Pattah and Ext.P6 Government order are abinitio void, against the scheme and not enforceable in law and not binding on the petitioners. vi. To declare that the Rules of Assignment W.P.C. No. 26440 of 2010 -2- of Government Land for Industrial Purpose is not applicable to the Assignment made in favour of the petitioners as per Ext.P6 and P7. vii. To declare that Rule 15 and 16 of the Rules of Assignment of Government Land for Industrial Purposes is ultravires the Kerala Government Assignment Act 1960 and unconstitutional.” 2. The writ petition was filed as early as on 18.08.2010. When the matter was came up for consideration on 22.09.2010 the following order was passed: “After arguing for some time, petitioners seeks adjournment. Post when moved again.” 3. The matter was not brought up for further consideration for nearly 3 years and it came up for consideration again pursuant to the filing of I.A. No. 12516 of 2013. The learned counsel for the petitioners submits that, the land was alloted on 'hire purchase scheme,' after the same was acquired for the purpose of starting an industry under the name and style as “Modern Wood Industries”, as per Ext.P6 G.O. Dated 13.02.1990, subject to the terms and conditions stipulated therein. Subsequently, the property was ordered to be taken back as per W.P.C. No. 26440 of 2010 -3- Ext.P9 order dated 31.05.2010 passed by the 1st respondent holding that the property therein was not used for setting up the industry and hence necessary steps are to be taken to take the property back. The said order was issued by the Revenue Department, while another order has been passed in similar terms by the Industries Department on 11.06.2010 (Ext.P10). 4. As per I.A. No. 12516 of 2013, it is brought to the notice of this Court that the type of industry (Wood based one) was originally sanctioned and subsequently, it was permitted to be changed as a garment-based unit and that, such a factory is in existence in the property. It is without any regard to the same, that the proceedings are being taken to take back the property by the Government. On bringing the position to the notice, the Government has intervened and Ext.P11 has been issued on 18.04.2012 asking for a report from the District Collector, as to whether any industry is in existence in the property and to keep the further proceedings in abeyance till such time. 5. The learned counsel also placed reliance on Ext.P13 report of the Village Officer in support of the contention that, there exists a garment industry. But on going through the W.P.C. No. 26440 of 2010 -4- contents of Ext.P13, it is seen that, the inspection conducted revealed existence of 'four' stitching machines at the premises and that 'four' temporary workers were working there. There is also an observation that, even though the construction was sought to be effected upstairs of the building to accommodate the Unit, no sanction was given by the Panchayat and hence the construction could not be completed. 6. In any view of the matter, in view of the issuance of Ext.P11 by the 1st respondent, it is for the 1st respondent to finalize the proceedings with reference to the actual facts and figures. It is open for the petitioner to pursue the matter before the 1st respondent. Interference is declined and the writ petition is disposed of, leaving all the issues to be considered by the 1st respondent. ## **P.R. RAMACHANDRA MENON, JUDGE.** kp/-