Muhammad Sabir v. Kerala Small Industries Development Corporation Ltd. (W.P.(C) No. 2688/2023)

W.P.(C) No. 2688/2023 : 1 : IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR. JUSTICE SHAJI P.CHALY FRIDAY, THE 17[TH] DAY OF MARCH 2023 / 26TH PHALGUNA, 1944 ## WP(C) NO. 2688 OF 2023 ## PETITIONER/S: MUHAMMAD SABIR, PROPRIETOR, M/S. SHA TRADERS AND MINERALS, C.P - III - 535, POINACHI, THEKKIL FERRY PO., KASARGOD DISTRICT,, PIN – 671 541. BY ADV O.D.SIVADAS ## RESPONDENT/S: - 1 THE KERALA SMALL INDUSTRIES DEVELOPMENT CORPORATION LTD. - HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR,, PIN – 695 001. - 2 THE MANAGING DIRECTOR, KERALA SMALL INDUSTRIES DEVELOPMENT CORPORATION LIMITED, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM,, PIN – 695 001. - 3 THE HEAD TRADING, KERALA SMALL INDUSTRIES DEVELOPMENT CORPORATION LIMITED, HOUSING BOARD BUILDING. SANTHI NAGAR, THIRUVANANTHAPURAM,, PIN – 695 001. ## BY SRI. G. BIJU, STANDING COUNSEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## W.P.(C) No. 2688/2023 ## : 2 : **SHAJI P. CHALY, J.** --------------------------------------------------------W.P.(C). No. 2688 of 2023 --------------------------------------------------------Dated this the 17[RD] day of March, 2023. ## The petitioner, proprietor of M/s. Shah Traders and Minerals, is a dealer of sand and minerals. The writ petition is filed seeking to quash Exhibit P5 communication dated 27.12.2022 issued by the kerala Small Industries Development Corporation Ltd., respondent No.1 and the minutes of the meeting of the first respondent declining the claim raised by the petitioner for return of an amount of Rs.5,00,000/- deposited by the petitioner towards security for allotment depot licence for distribution of sand and minerals. **2.** A further writ of mandamus is also sought directing the respondents to refund the security deposit of Rs.5,00,000/- with 16% interest from the date of deposit till its realization. 3. Brief material facts for the disposal of the writ petition are as follows: The first respondent invited a tender for distribution of sand in Thaliparamba and Kasaragod Taluk. The petitioner applied for the same and as per the direction issued by the first respondent, the petitioner deposited an amount of Rs.5,00,000/- for allotment of W.P.(C) No. 2688/2023 : 3 : depot for the distribution of sand, in two instalments on 11.03.2022 and 09.06.2015 respectively, evident from Exhibits P1 and P2 bank chelan and the receipt issued for the purpose. 4. The case of the petitioner is that the licence for distribution of sand was not allotted to the petitioner. It is pointed out that even though the petitioner repeatedly requested for the same, it was not granted. Consequently, the petitioner approached this Court seeking a direction to return the said amount with interest by filing W.P.(C) No. 16329 of 2022, which was disposed of directing the respondents to consider the request and pass orders, evident from Exhibit P4 dated 12.10.2022. 5. Pursuant to the same, the Managing Director, Kerala Small Industries Development Ltd, respondent No.2, issued Exhibit P5 communication stating that the amount cannot be refunded, since it is time barred. It is, thus, challenging the legality and correctness of the said decision, the writ petition is filed. 6. The paramount contention advanced by the petitioner is that the petitioner deposited the amount for allotment of depot and no communication is issued to the petitioner cancelling allotment and therefore, until cancellation is done by the respondents and the same is communicated to the petitioner, the respondents cannot decline payment of the said amount on the ground of limitation W.P.(C) No. 2688/2023 : 4 : prescribed under the Limitation Act. 7. It is also pointed out during the course of argument that it is a continuing liability on the part of the respondents to pay the said amount, since the application submitted by the petitioner for the depot licence is not yet declined by the respondents. 8. The Managing Director has filed a counter affidavit admitting the receipt of the amount, however, reiterating the stand adopted in Exhibit P5 minutes of the first respondent. It is further submitted that a person who has slept over his rights is not entitled to get any relief. 9. I have heard the learned counsel for the petitioner Sri. O.D. Sivadas and the learned Standing Counsel for the respondents Sri. G. Biju, and perused the pleadings and material on record. 10. The sole question to be considered is whether the stand adopted by the respondents that the claim raised by the petitioner is barred by law of limitation, can be sustained under law. In my considered opinion, it is an admitted fact that amounts were deposited by the petitioner for securing a depot licence for the supply of sand and minerals; but, the same was not granted to the petitioner. It is the specific case of the petitioner that no communication was issued to him declining the depot licence. When no depot license was granted to the petitioner, the first W.P.(C) No. 2688/2023 : 5 : respondent, being fully owned Government of Kerala enterprise, had the responsibility and duty to return the amount deposited by the petitioner. 11. Moreover, the question as to whether the State Government or its Corporations are entitled to raise a claim of limitation was considered by the Apex Court in a catena of decisions and held that the State is not entitled to take up such a ground. This question was considered by this Court in the judgment in _**Vishnu v. State of Kerala**_ [2023(2) KLT 186 following various Apex Court judgments and held that the State and its Corporations are duty bound and responsible to return the amounts due to a citizen, taking into account the constitutional obligations irrespective of any limitation. The relevant portion of the said judgment reads thus: “ 10. The question with respect to the period of limitation available to the Government was considered by the Apex Court in Dilbagh Rai Jarry v. Union of India (1974 KLT OnLine 914 (SC) = (1974) 3 SCC 554) and held that the State is the largest litigant today and the huge expenditure involved makes a big draft on the public exchequer. In the context of expanding dimensions of State activity and responsibility, is it unfair to expect finer sense and sensibility in its litigation policy, the absence of which, in the present case, has led the Railway callously and cantankerously to resist an action by its own employee, a small man, by urging a mere technical plea which has been pursued right up to the summit Court here and has been negatived in the judgment just W.P.(C) No. 2688/2023 : 6 : pronounced. 11. It was further held therein that it is not right for a welfare State like ours to be Janus-faced and while formulating the humanist project of legal aid to the poor, contest the claims of poor employees under it pleading limitation and the like. 12. This Court had occasion to consider the said issue in P.P.Abubacker v. Union of India (1972 KLT 74 = AIR 1972 Ker.103) and held as follows: “5. The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for, the State’s interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak, government shows a willingness to settle the dispute regardless of prestige and other lesser motivations which move private parties to fight in court. The lay-out on litigation costs and executive time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic showdowns where a reasonable adjustment is feasible and ever offering to extinguish a pending W.P.(C) No. 2688/2023 : 7 : proceeding on just terms, giving the legal mentors of government some initiative and authority in this behalf. ...” 13. In Madras Port Trust v. Hymanshu International (1979 KLT OnLine 1015 (SC) = (1979) 4 SCC 176), it was held as follows at paragraphs 2 and 3 thus: “2. We do not think that this is a fit case where we should proceed to determine whether the claim of the respondent was barred by Section 110 of the Madras Port Trust Act (II of 1905). The plea of limitation based on this section is one which the court always looks upon with disfavour and it is unfortunate that a public authority like the Port Trust should, in all morality and justice, take up such a plea to defeat a just claim of the citizen. It is high time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well-founded, it has to be upheld by the court, but what we feel is that such a plea should not ordinarily be taken up by a government or a public authority, unless of course the claim is not well-founded and by reason of delay in filing it, the evidence for the. purpose of resisting such a claim has become unavailable. Here, it is obvious that the claim of the respondent was a just claim supported as it was by the recommendation of the Assistant Collector of Customs and hence in the exercise of our discretion under Article 136 of the Constitution, we do not see any reason why we should proceed to hear this appeal and adjudicate upon the plea of W.P.(C) No. 2688/2023 : 8 : the appellantbased on Section 110 of the Madras Port Trust Act (II of 1905). 3. We accordingly revoke the special leave granted to the appellant, and direct that the appellant do pay the cost of the respondents.” 14. In Sukh Dutt Ratra v. State of H.P. (2022 (2) KLT OnLine 1161 (SC) = (2022) 7 SCC 508), the Apex Court had considered the question of the claim raised by owners of land acquired by the Government in 1972-1973; but no compensation paid, and framed a question, can the State, merely on the ground of delay and laches, evade its legal responsibility towards those from whom private property has been expropriated?, and it was held that in the facts and circumstances, the stand adopted by the Government is unacceptable. It was further held that the State cannot shield itself behind the ground of delay and latches in such a situation; there cannot be any “limitation” to doing justice. 15. In Tukaram Kana Joshi v. MIDC (2012 (4) KLT Suppl.55 (SC) = (2013) 1 SCC 353), the delay in the payment of the land acquisition compensation and the consequential limitation was considered by the Apex Court and held as follows at paragraph 11 thus: “11. There are authorities which state that delay and laches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence, grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his W.P.(C) No. 2688/2023 : 9 : fundamental right has been violated, under Article 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether. The functionaries of the State took over possession of the land belonging to the appellants without any sanction of law. The appellants had asked repeatedly for grant of the benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode. There is a distinction, a true and concrete distinction, between the principle of “eminent domain” and “police power” of the State. Under certain circumstances, the police power of the State may be used temporarily, to take possession of property but the present case clearly shows that neither of the said powers have been exercised. A question then arises with respect to the authority or power under which the State entered upon the land. It is evident that the act of the State amounts to encroachment, in exercise of “absolute power” which in common parlance is also called abuse of power or use of muscle power. To further clarify this position, it must be noted that the authorities have treated the landowner as a “subject” of medieval India, but not as a “citizen” under our Constitution.” 16. In Vidya Devi v. State of H.P. (2020 (1) KLT 430 (SC) = 2020 (1) KLT OnLine 1114 = (2020) 2 SCC 569), it was held as follows at paragraph 12.12 thus: “12.12. The contention advanced by the State of delay and laches of the appellant in moving the Court is also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if the circumstances W.P.(C) No. 2688/2023 : 10 : shock the judicial conscience of the Court. Condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case. It will depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice.” It was further held therein that in a case where the demand for justice is so compelling, a constitutional court would exercise its jurisdiction with a view to promote justice, and not defeat it. 17. The principles of law evolved by the Apex Court and this Court would make it clear that the State Government, in the guise of the period of limitation, cannot evade its responsibility to pay the amount due to the petitioners’ father, who undertook the contract work when the previous contractor Sri.K.Muraleedharan failed to carry out the contract. Moreover, when a civil court passed an order of prohibitory injunction restraining the State and its officials by permanent prohibitory injunction from adjusting the amount due to the petitioner’s father, there was an onerous responsibility to the State to pay the amount to the petitioners. 18. Above all, in a welfare State, the State has the duty and obligation to protect the interests of its citizens, rather than finding ways and means to defeat their interests and means of livelihood. The scheme of Part III of the Constitution of India dealing with ‘fundamental rights’ speaks eloquently of the responsibilities of the State to safeguard the well-being and prosperity of the citizens without fail. Therefore, when a citizen was engaged by the Government to carry out one of its activities, it had every duty to reward the person as agreed upon in the W.P.(C) No. 2688/2023 : 11 : contract, even without asking for it. 19. Thinking so, especially bearing in mind the constitutional obligation of the State, in my considered opinion, it becomes a continuing cause of action, till the liability is discharged by the State. This I say also for the reason that a citizen of India is duty bound to discharge any obligation towards the State for a period of thirty years; which also could be seen only as a principle evolved on the theory of a welfare State obligating citizens to discharge their liabilities and responsibilities for the welfare of the State as mandated under Part IVA of the Constitution of India. 20. Moreover, Art.300A of the Constitution of India makes it clear that no person shall be deprived of his property save by authority of law. Therefore, when the contract work was executed to the satisfaction of the respondents, the money became due to the petitioners’ father; and therefore the said amount cannot be adjusted against the dues from the previous contractor Sri.K.Muraleedharan in some other works by exercising the power of eminent domain vested with the Government, which when done can only be viewed as an arbitrary and illegal action. Considering the facts and circumstances and the law discussed above, I have no hesitation to hold that the petitioners are entitled to succeed in the Writ Petition. Therefore, the Writ Petition is allowed and the respondents are directed to pay the balance amount due to the petitioners as specified above at the earliest and at any rate within six weeks from the date of receipt of a copy of this judgment, failing which the respondents shall pay interest at the rate of 9% to the petitioners.” 12. In that view of the matter, the petitioner is entitled to succeed and consequentially, Exhibit P5 minutes passed by the first respondent is quashed. There will be a direction to the second W.P.(C) No. 2688/2023 : 12 : respondent i.e., the Managing Director of the first respondent Corporation to pay an amount of Rs.5,00,000/- deposited by the petitioner with 6% interest from the date of expiry of one year of the deposit of the said amount by the petitioner. This writ petition is allowed as above. sd/- **SHAJI P. CHALY, JUDGE.** Rv W.P.(C) No. 2688/2023 : 13 : ## APPENDIX OF WP(C) 2688/2023 |PETITIONER’S EXHIBITS:|| |---|---| |Exhibit P1|THE TRUE COPY OF THE BANK CHELAN DATED| ||11.03.2015 AND 9.6.2015 EVIDENCING DEPOSIT TO| ||1ST RESPONDENT.| |Exhibit P2|THE TRUE COPY OF THE RECEIPT DATED 11.3.2015| ||ISSUED BY THE 1ST RESPONDENT.| |Exhibit P3|THE TRUE COPY OF THE REQUEST SUBMITTED BY THE| ||PETITIONER BEFORE THE 1ST RESPONDENT.| |Exhibit P4|TRUE COPY OF THE JUDGMENT DATED 12.10.2022| ||ISSUED BY THIS HON'BLE COURT IN W.P.(C)| ||NO.16329/2022.| |Exhibit P5|TRUE COPY OF THE PROCEEDING ALONG WITH THE| ||COVERING LETTER DATED 27.12.2022 ISSUED BY THE| ||RESPONDENTS.| ## RESPONDENTS’ EXHIBITS: NIL ## True Copy rv PS To Judge.