IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32544 of 2006(Y)
1. SUD CHEMIE INDIA (P) LTD.,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE PRINCIPAL SECRETARY REVENUE (A)
3. THE DIRECTOR OF INDUSTRIES,
4. THE GENERAL MANAGER,
5. THE DISTRICT COLLECTOR,
For Petitioner :SRI.BECHU KURIAN THOMAS
For Respondent :ADDL.ADVOCATE GENERAL
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :26/05/2010
O R D E R
S. SIRI JAGAN, J.
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W.P.(C)No. 32544 of 2006
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Dated this the 26th day of May, 2010
J U D G M E N T
In late 1960’s the petitioner company, when that
company was known as United Catalysts and Chemicals
India Ltd., came to Kerala and requested for assignment of
50 acres of land to establish an industry. The Government
was not able to find 50 acres for assignment to the
petitioner. However 21.52 acres were assigned.
Consequently the company had to modify its project to suit
the land available and accordingly an industry was started.
At that time their annual turnover was only Rs.10 – 15
crores. Over the years the turnover increased and at the
time of filing this writ petition it had increased
phenomenally to Rs.160 crores. At the time of assignment,
the entire market value of the land was paid by the
petitioner to the Government. Patta was issued in favour of
the petitioner, which is produced as Ext.P3. Ext.P1 is the
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rules for assignment and Ext.P2 is the order giving
assignment. But strangely by Ext.P5 dated 14.2.2001 the
petitioner was directed to show cause why an area of 5.29
acres out of 21.52 acres should not be resumed, since the
petitioner had not utilized the land for the purpose for
which the same was assigned in favour of the petitioner.
Petitioner filed a very detailed reply which is produced as
Ext.P6, wherein they have graphically detailed how the said
property is utilized and their future plans for expansion.
The matter came up for hearing before the 1st respondent.
The petitioner filed Ext.P7 further written statement again
detailing their plans regarding utilization of that land. But
rejecting all those contentions, by Ext.P8 order dated
29.5.2008, the Government has confirmed the proposal to
resume the 5.21.900 acres out of the 21.52 acres assigned
to the petitioner. The petitioner is challenging that order.
Petitioner contends that the Government has no power to
resume the land except as provided in Ext.P1 rules and
Ext.P3 patta issued to the petitioner. According to the
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petitioner, Ext.P1 rules and Ext.P3 patta do not authorize
the Government to resume a portion of the land assigned on
the ground that, that particular portion of land has not been
utilized for the purpose for which the land was assigned to
them. According to the petitioner, even otherwise there
was absolutely no reason whatsoever for resuming the land.
The counsel for the petitioner would point out that, on
assignment of certain land an industry cannot utilize every
inch of the land assigned to them. It is not as if when
assignment is made an assignee is expected to construct
buildings covering the entire land so assigned without
leaving any open space whatsoever. He would contend
that, open space is also a very necessary requirement of an
industry. In fact the pollution control laws specifically
prescribe maintenance of a green belt in every industry
particularly chemical industry which the petitioner is, which
can only be in an open space. Even apart from that, in
every industry, there should be open space for other
purposes as well like space for recreation facilities of the
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employees, for well, future expansion etc. The counsel for
the petitioner would point out that it is not as if a big block
of land is remaining vacant which can be taken over by the
Government for allotment to others. He points out that as
directed by this court, the 4th respondent has placed a
report before this court along with a sketch of the entire
area assigned to the petitioner, which would go to show that
the area proposed to be resumed is interspersed with
buildings and therefore it is impossible for the Government
to resume the bits and pieces of land in between of those
buildings so that it can be assigned to somebody else. He
submits that a mere glance at the sketch produced by the
4th respondent would show that it is well nigh impossible for
anybody to use the land proposed to be resumed by the
Government.
2. A very long counter affidavit has been filed by the
4th respondent who supports the impugned order on the
ground that the rules do permit the Government to resume
the land remaining unutilized by an assignee. A reply
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affidavit has also been filed by the petitioner controverting
contentions in the writ petition wherein again they have
detailed their future plans for expansion as well as the
utilization of the balance land. They would submit in the
reply affidavit that as early as in 2003 itself construction of
rain water harvesting facility, biomass boiler, biomass
storage, warehouse and also by product storage facility in
the area sought to be resumed. They further submit that
the total turnover of the petitioner for the financial year
2007-08 was Rs.231 crores, that for 2008-09 had been 339
crores, while that for the year 2009-2010 was Rs.358
crores. Therefore according to them, for an ever expanding
industry space is required for future expansion as well.
3. I have considered the rival contentions in detail.
At the outset I must note that on a perusal of the sketch
produced by the 4th respondent himself, of the entire area
assigned to the petitioner, including the area sought to be
resumed, I find that seven buildings are interspersed in the
area sought to be resumed. A mere glance at the sketch
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would convince any person that, it is impossible to resume
the land proposed to be resumed which lie in bits and
pieces among the buildings, unless the petitioner is evicted
from the utilized portions as well.
4. I further note that Ext.P8 order is totally a non-
speaking order consisting of hardly one page which does
not even make a show of considering any of the contentions
of the petitioner in Exts.P6 & P7. No reason whatsoever is
mentioned in Ext.P8 for deciding to resume the land. In
fact, Ext.P8 order is liable to be quashed on ground of being
violative of principles of natural justice.
5. Even apart from that, I am surprised that a
Government which speaks of promoting industries in Kerala
in every public platform and invites persons from outside to
invest money in the State for industries, takes such an
attitude towards an already existing company which gives
employment to many people in the State. It is not as if once
the land is assigned to an industry, every inch of that land
should be occupied by buildings, failing which, the
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Government can resume the land. It is impossible for any
industry whatsoever to use every inch of land in their
possession for constructing buildings for the industry.
Naturally in every industry sufficient open space is a must,
especially in view of the ever increasing pollution in the
State. As rightly pointed out by the learned counsel for the
petitioner, as per the pollution control laws every industry
particularly, a chemical industry is bound to maintain a
green belt. Nobody can dispute that the green belt can only
be an open space and not in an area covered by buildings.
In Ext.P6, the petitioner has stated thus regarding their
plans for the vacant land.
” As already submitted in our various letter and
communications, it may kindly be noted that the land is kept for
ancillary purposes and for future expansion and for installing
pollution control facilities. At any rate buildings cannot be
constructed in the entire land. The company had submitted
various proposals regarding the utilization of land. Some land
had already been utilized for adding various facilities for
effluent treatment, for recovery of Sodium Sulphate, etc. There
is also proposal for constructing new administrative block as
well as facilities for vehicle parking, etc. at appropriate period.
Central Excise Authorities have accorded permission for
constructing godown for the storage of non-duty paid goods.
As advised by the environmental experts and authorities of the
Pollution Control Board and Directorate of Factories, we have
developed a portion of the land to create a green belt, which is
very much essential experts in the present environmental
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standards, especially for chemical factories. It may also be
noted that out of the 21.52 acres land more than one acre of
land was taken for roads and lost by erosion on the riverside.
Without considering these facts and circumstances the present
Show Cause is issued. Any attempt to resume the alleged
vacant land allotted will scuttle all further developments and
expansion of the industrial unit, which is a very hi-tech industry
and such an attempt would lead to stagnation and ultimate
closure of the industry. We would also reiterate that no
industry can survive if sufficient land is not made available for
them for expansion, diversification, etc. Adequate measures are
already taken for creating ancillary facilities on the land.
Therefore allegation of non-utilization of land is kept unutilized
is incorrect and made without any basis. As already elaborated
the little land is utilized for expansion of ancillary purposes,
creation of green belt, providing pollution control facilities , as
well as the proposed construction of godown, administrative
blocks, etc. There is absolutely no surplus land available with
us.”
These contentions have not even been attempted to be
considered in the impugned order.
6. They have further stated in their reply affidavit
that they have already started construction in 2006 itself for
establishing rainwater harvesting facility, biomass boiler,
biomass storage, warehouse and also by-product storage
facility in the area sought to be resumed. In the additional
reply affidavit other plans are also graphically detailed.
7. Rules 10 to 16 are the relevant rules applicable in
respect of resumption of land which reads as follows:
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10. The land shall be used only for the purpose for
which it is assigned and for no other purpose.
11. Land assigned under these Rules shall be heritable
but it shall not be alienate or encumbered in any manner
without the prior permission in writing of the Government.
12. The Industrialist shall pay all tax, cess, land
revenue and other dues which may be payable in respect of land
from time to time.
13. The Industrialist shall start the industry for the
purpose of which the land is assigned to him, within the period
specified in the order of Government assigning the land.
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 concern
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.
15. In the event of the Industrialist not requiring the
land for the purpose for which it is assigned, he shall intimate
the Government in writing immediately and thereupon
Government may either resume the land or inform the
Industrialist that he may dispose of the land in any manner he
likes. In case of resumption of the land under this rule, the
Industrialist shall be paid the compensation in the manner fixed
under rule 16.
16. In case the land is resumed by the Government
under rule 14 or rule 15, the Government may take possession
of the land with the buildings and improvements, if any, thereon
and pay the Industrialist the amount paid by him as value of the
land under the rules, or the estimated market value of the land
at the time of resumption, as may be fixed by the District
Collector, whichever shall be less and, if there are any buildings
or improvements of any kind on the land, their value as fixed by
the Collector. Provided that, instead of paying the value of the
buildings and improvements, it shall be open to Government to
direct the Industrialist to remove all or any of the buildings and
other improvements within such time as may be specified, at
the cost of the Industrialist and the Industrialist shall remove
them within the specified period and if he fails to do so
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Government may remove the same at the cost of the
Industrialist and dispose of the materials by public auction, the
proceeds of such disposal being payable to the Industrialist
after recovering therefrom all amounts due to the Government
from the Industrialist.
I am of opinion that these rules do not postulate that
every inch of land assigned in favour of a person under the
rules should be occupied by buildings, failing which, the
Government is entitled to resume the land. That is not the
spirit of the rules at all. Naturally every growing industry
would require land for expansion. Expansion cannot be in
the beginning itself. It can only be in the course of time as
the business of the industry expands. Therefore naturally
for that purpose also the industry would require land. If
Government takes a stand that the entire land assigned
should be utilized all at once then the industry cannot
progress at all. It will always have to stand still, especially
in view of the fact that out of the 50 acres originally
required by the petitioner, the Government was able to
assign only 25.52 acres. Practically the conditions in Ext.P3
patta are a re-production of the above said rules which also
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do not contain any provision to the contrary. For all the
above reasons, I do not find any justification for resumption
of the land as done by the Government in Ext.P8 order.
Accordingly Ext.P8 order is quashed. The writ petition is
allowed as above.
S. SIRI JAGAN
JUDGE
shg/