Poyilakada Fisheries Pvt Ltd v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **TUESDAY, THE 30TH DAY OF JULY 2019 / 8TH SRAVANA, 1941** **WP(C).No.24780 of 2017** ## **PETITIONER/S:** **POYILAKADA FISHERIES PVT LTD A COMPANY INCORPORATED UNDER INDIAN COMPANIES ACT 1956,REPRESENTED BY ITS MANAGING DIRECTOR G.RAJAN NAIR, S/O.P.GANGADHARAN PILLAI, AGED 68 YEARS, PARAMESWAR NAGAR, KOLLAM-691001.** **BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.A.JANI(KOLLAM) SRI.MANJUNATH MENON SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.R.GITHESH SRI.THOMAS P.KURUVILLA RESPONDENT/S:** |**1**|**THE STATE OF KERALA**| |---|---| ||**REPRESENTED BY CHIEF SECRETARY, SECRETARIAT,**| ||**THIRUVANANTHAPURAM.**| |**2**|**THE DISTRICT COLLECTOR**| ||**KOZHIKODU.**| |**3**|**THE DIRECTOR OF INDUSTRIES AND COMMERCE**| ||**VIKAS BHAVAN, THIRUVANANTHAPURAM-695033.**| |**4**|**THE DISTRICT INDUSTRIES CENTRE**| ||**VELLAYIL, KOZHIKODU, 673013,REPRESENTED BY ITS**| ||**GENERAL MANAGER.**| ``` WPC 24780/2017 ``` ## **-:2:-** **5 MUHAMMED CHAKKIRI ROCKFIELD, CHAKKIRI ROAD, VENGARA,MALAPPURAM DISTRICT.** - **6 (*) P.MAHESH KUMAR AGED 44 YEARS S/O LATE SREEMANUNNI NAIR, CHERUKAVIL KONOT PO, KUNNAMANGALAM, KOZHIKODE DISTRICT.** **(*) ADDITIONAL R6 IS IMPLEADED AS PER ORDER DT.25.9.17 IN IA NO.14720/2017** **BY ADVS. SMT.N.DEEPA SRI.K.MOHAMMED FAISAL NAHA SMT.PREETHI. P.V. SRI.K.RAMACHANDRAN SRI.PUSHPARAJAN KODOTH SRI.T.SETHUMADHAVAN (SR.)** **A C VIDYA GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ``` WPC 24780/2017 ``` ## **-:3:-** ## **J U D G M E N T** The petitioner, a private limited company was given land having an extent of 129.08 cents, in the Industrial Development Plot at Katchery Village, Kozhikode District, for establishment of a seafood processing unit as per the order of the Government of Kerala dated 16.10.1989. 2. Land was assigned under Rule for Assignment of Government Land for Industrial Purposes. These rules were framed by the Government in exercise of power conferred under the Kerala Government Land Assignment Act, 1960. 3. The General Manager, District Industries Centre (DIC), Kozhikode, by an order dated 2.8.2014 ordered resumption of land. This order was passed noting contravention of Rules of Assignment and conditions forming part of order of assignment. It is seen from the impugned order that the General Manager (DIC) observed that the unit had stopped functioning since 2004 and that it had opened only for a ## **`WPC 24780/2017`** ## **-:4:-** few days during 2008 and 2009. It was also noted that the power connection was disconnected by the Kerala State Electricity Board. The District Industries Centre appears to have taken steps for resumption from the year 2009. The petitioner was served with notice on 5.3.2009. The petitioner appears to have given reason of a trawling ban for non use. Thereafter, a series of registered notices followed in the years 2012-2013. Finally, the Managing Director was given a personal hearing on 8.5.2013. It appears that the Managing Director gave an assurance that the unit would start functioning by 31.8.2013. Since the unit failed to start functioning as promised, the General Manager (DIC) passed an order resuming unit on 2.8.2014. The order of the General Manager (DIC) was challenged before this Court in W.P. (C).No.21235/2014. Noting that the Government alone has power under Rule 14 of the aforesaid Rules to order resumption, this Court ordered that the order passed by the General Manager (DIC) shall be treated as a piece of evidence and directed the Government to pass orders on resumption, giving the petitioner an opportunity to contradict ``` WPC 24780/2017 ``` ## **-:5:-** any fact finding in the order passed by the General Manager. The judgment of this Court was carried in writ appeal before the Division Bench. However, the petitioner was unsuccessful. 4. The Government considered the matter in detail. The Government also found that the petitioner was unable to put forward any viable proposal to start industry in the land. Accordingly, it ordered for resumption of the land and for cancellation of the patta. This order is under challenge in this writ petition. 5. Heard the learned Senior Counsel S.Sreekumar appearing for the petitioner and Shri K.Ramachandran appearing for the fifth respondent. 6. The learned Senior Counsel appearing for the petitioner argued that the assignment was absolute and that it could be revoked only on enumerated grounds as referred under Rule 14 of the Rules for Assignment of Government Land for Industrial Purposes . The learned Counsel argued that non use of the land cannot be a ground to revoke patta and to resume the land. On the other hand learned counsel for the ## **`WPC 24780/2017`** ## **-:6:-** party respondent and the learned Government Pleader argued that the petitioner had contravened the order of assignment and violated patta conditions. The learned counsel for the party respondent submitted that they have been put in possession. That allotment has been provisionally made in their favour and that they have made all arrangements for starting the unit. 7. As far as the fact finding with regard to non-usage is concerned, there cannot be much dispute. The General Manager in his order, as well as the Government in the impugned order have stated that the land is not being used for the purpose for which it was assigned. 8. The assignment of the land itself was for industrial purpose. That be so, if it is not used for industrial purposes, the Government has every right to revoke such patta. The land is held by the Government as a public trustee. The Government will have to uphold public interest at all times and ensure that the land is utilised only for public purposes. Mere non usage for a particular period due to cogent reasons, cannot be visited with consequences like resumption and cancellation of patta. ## **`WPC 24780/2017`** ## **-:7:-** That is the reason why, under Rule 14 of the Rules for Assignment of Government Land for Industrial Purposes, the Government reserves the power to resume the land when industrialists contravene the provisions of the Rules and Orders of assignment. Now I shall address the argument of the learned Senior Counsel regarding absence of specific provisions relating to resumption on account of non usage. In this regard, it is appropriate to refer to Rule 14 of the Rules for Assignment of Government Land for Industrial Purposes which reads as thus: “14. The Government shall have power to resume the land if the Industrialist contravenes any of the provisions of these rules or/of the Order of the Government assigning the land or of the agreement, if any, executed by the Industrialist with the Government or in the event of the Company or concerned belonging to the Industrialist is wound up or if the Industrialist is an individual or a group of individuals, if the individual or individuals, are dead.” 9. Appendix I to the Kerala Land Assignment Rules, 1964 is a form of Order of Assignment on Registry. It specifically states the purposes for which the land shall be used. In the patta issued to the petitioner, specific stipulations have been incorporated for the use of ## **`WPC 24780/2017`** ## **-:8:-** the land for industrial purposes. Therefore, consistent failure to utilise the land for industrial purposes would also amount to contravention of provisions of the Rules as well as that of Order of Assignment on Registry. The Rules as well as the Order of of Assignment on Registry cast a positive obligation to use the land for industrial purposes. Non usage therefore, would amount to violation of such obligation. 10. Further, this Court in **Mahindra Holidays & Resorts India Limited v. State of Kerala [2019 (2) KLT 978]** held that the Government assigning land on public interest must always ensure that public interest is subserved at all times. The Government can revoke the patta even in the absence of any specific provisions, by invoking principles of public trust. 11. In such circumstances, I find no merit in the writ petition. The petitioner has been unable to utilise the land for industrial purposes for more than 15 years. Large number of persons are in the queue for allotment of land. The Government cannot overlook public interest in such a situation. The writ petition is therefore, dismissed. However, ``` WPC 24780/2017 ``` ## **-:9:-** the petitioner is at liberty to raise any claim for compensation or for value of improvement in accordance with the Rules. No costs. **Sd/-** **A.MUHAMED MUSTAQUE, JUDGE** ms ## **`WPC 24780/2017`** ## **-:10:-** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF LETTER DATED 10.09.1986 ISSUED BY THE PETITIONER.** - **EXHIBIT P2 TRUE COPY OF LETTER DATED 05.09.1986 ISSUED BY THE KERALA FINANCIAL CORPORATION.** - **EXHIBIT P3 TRUE COPY OF G.O.(RT)NO.118/88/IS DATED 08.02.1988.** **EXHIBIT P4 TRUE COPY OF AGREEMENT EXECUTED ON 04.03.1988 BETWEEN PETITIONER, M/S.SEA DIAMOND PVT. LTD. AND GOVERNMENT.** - **EXHIBIT P5 TRUE COPY OF G.O.NO.7/11/89/RD DATED 16.10.1989.** - **EXHIBIT P6 TRUE COPY OF PATTA DATED 28.06.1990 ISSUED BY THE GOVERNMENT.** - **EXHIBIT P7 TRUE COPY OF ORDER DATED 02.08.2014 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF LETTER DATED 18.08.2014 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF MAHAZER DATED 06.08.2014.** - **EXHIBIT P10 TRUE COPY OF JUDGMENT IN W.P.(C) NO.21235 OF 2014 DATED 17.03.2016 OF THIS HON'BLE COURT.** **EXHIBIT P11 TRUE COPY OF JUDGMENT IN W.A.NO.808 OF 2016 DATED 07.12.2016 OF THIS HON'BLE COURT.** ## **`WPC 24780/2017`** ## **-:11:-** **EXHIBIT P12 TRUE COPY OF ORDER G.O.(MS) NO.225/17/RD DATED 10.07.2017 OF THE 1ST RESPONDENT. EXHIBIT P13 TRUE COPY OF BASIC TAX RECEIPT DATED 24.04.2017 OF PUTHIYANGADI VILLAGE FOR THE YEAR 2017-2018. EXHIBIT P14 TRUE COPY OF RECEIPT DATED 10.02.2017 ISSUED BY KSEB ACKNOWLEDGING THE PAYMENT OF ELECTRICITY BILL.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R5(A)** TRUE COPY OF THE COUNTER AFFIDAVIT TOGETHER WITH THE EXHIBITS FILED BY THIS RESPONDENT IN WPC 21235/2016. **EXHIBIT R6(A)** TRUE COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT DATED 02/08/2014. \\TRUE COPY// PS TO JUDGE