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Judgment
T.R. Ravi, J
Heard Sri Babu Karukappadath on behalf of the petitioners and Sri P.Santhosh Kumar Special Government Pleader on behalf of the respondents.
The case put forward in the writ petition is as follows:-The petitioner is a Private Limited Company registered under the Companies Act engaged in the business of manufacturing fertilizers. Their manufacturing and sales depot are located at Door No.VI/583 of Thazhakkara Grama Panchayat in a property having an extent of 12.20 Ares made up of 4.90 Ares in Sy.No.483/2 & 4 and 483/2-2 and 7 of Vettiyar Village in Mavelikkara Taluk in Alappuzha district. The above said extent of 12.20 Ares originally belonged to the State Government and was under the exclusive possession and enjoyment of one Mr.Alexander from 1957. The property was initially made over to Sri Alexander by the Government on a hire purchase basis. After the entire hire purchase amount was paid, a patta bearing No.B1 7515/94 dated 13.7.1994 was issued in favour of Sri Alexander. Ext.P1 is the relevant page of the patta issued to Sri Alexander under Rule 9(2) of the Kerala Land Assignment Rules, 1964. The conditions for issuance of the patta has also been indicated in Ext.P1. Sri Alexander has executed settlement deeds No.1580/1999 and No.41/2000 of the SRO, Mavelikkara, settling the properties in favour of his son Sri Alex Philip. Copy of the settlement deed bearing No.1580/1999 has been produced as Ext.P2. Thereafter, Sri Alex Philip has been paying the taxes, which is evidenced by Ext.P3 tax receipt dated 13.4.2016. Sri Alex Philip later transferred the properties in favour of the petitioner as per documents Nos.917/2018 and 1125/2018 of SRO, Mavelikkara, and the petitioner became the absolute owner in exclusive possession and enjoyment of the property. The sale deeds in favour of the petitioner are produced as Exts.P4 and P5. The mutation was effected and the petitioner has been paying the land tax and the building tax as evidenced by Ext.P6. Ext.P7 is a certificate of Manufacture issued to the petitioner under the Fertilizer (Control) Order, 1985 and Ext.P9 is the licence issued by the Thazhakkara Grama Panchayat in favour of the petitioner. The petitioner submits that on 23.6.2022, a contingent of Police along with certain officials from the office of the 3rd respondent came to the property and forcibly evicted the employees of the petitioner from the property, and the building was locked down. The petitioner submits that neither the petitioner nor any of its directors or any other person relating to the petitioner was ever served with any notice or communication with respect to the property or of the proposal for taking possession at any point in time. None of the Directors of the petitioner were present at the property when the officials of the Industries Department forcibly evicted the employees of the petitioner from the property. On request of the Director of the petitioner, on 24.6.2022, the Police issued a copy of the request received by them from the Sub District Industries Officer, along with a copy of the order dated 6.1.2022 issued by the 3rd respondent and the said order has been produced as Ext.P10. It appears that the Sub District Industries Officer had also requested for Police protection for evicting the petitioner, on 16.6.2022. The order dated 6.1.2022 and the request dated 16.6.2022 have been produced as Exts.P10 and P11 along with the writ petition. Ext.P10 says that notices had been issued to the legal heir of the original allottee and there was no response. According to Ext.P10, the allottees had violated the conditions of assignment and the transfer by the original allottee Sri C.Alexander in favour of his son was itself in violation of the conditions of the assignment. It is stated that the unit was not functioning. It is further stated that under Rule 14 of Land Allotment Rules issued vide GO(MS)No.169/69/ID dated 5.4.1969, the Government has the power to resume the land if the industrialist contravenes any of the provisions of the rules or of the order of the Government assigning the land or of the agreement if any with the Government or if the company or concern belonging to the industrialist is wound up or if the industrialist is an individual or a group of individuals, such individual or individuals are dead. It is further stated that the assignment of industrial land is different from the assignment of normal land and the Government is entitled to resume the land. Ext.P10 does not show that notice was ever issued to the petitioner who is in possession from 2018 onwards based on Exts.P4 and P5 registered sale deeds. It is however stated in the order that the building in the property was being used as a godown for stocking bio-fertilizers by an unauthorised person. The petitioner has produced Ext.P12 which is the proceedings of the Revenue Divisional Officer, Chengannur, issued on 24.10.2017, wherein the Revenue Divisional Officer has specifically found that the property is patta land held under Thandapper Nos.4503 and 4643. The proceeding was initiated based on a request made by the predecessor-in-interest of the petitioner seeking correction of the entry relating to the property as “Government property” and for fixing the fair value for the property. Ext.P13 produced by the petitioner is the extract of the Thandapper register relating to the property.
A counter affidavit has been filed by the 3rd respondent as directed by this Court on 28.6.2022. It is stated in the counter affidavit that two numbers of C type sheds and an extent of 31.276 cents of land in Sy.Nos.313/10 corresponding to Re-Sy.Nos.483/2 and 483/2-2 of Vettiyar Village in the Development Area, Kollakkadavu was originally allotted to Sri Alexander for setting up an industrial unit for the manufacture of coconut oil under the name and style “United Oil Mills” in 1957 on certain conditions. It was stated that the possession would be treated as a transfer of land and sheds in Industrial Estate under Rules of Allotment of Land which was to be framed later by the Government. Much later, according to the counter affidavit, Allotment Rules were made as per GO(MS)No.169/69/ID dated 5.4.1969 for allotment of land in Development Areas. According to the 3rd respondent, the property was allotted to Sri Alexander under the said Rules. It is further submitted that the industrial land in Development Area is allotted under the hire purchase basis or outright purchase basis and in the case of Sri Alexander, it was allotted on a hire purchase basis and after completing the remittance of the entire land value, the land was assigned to Sri Alexander based on the recommendation of the Industries Department. It is further stated that the allottee had to obtain prior permission in writing from the Government for any change of ownership of the Government patta or change of activity of the unit, which the petitioner and his predecessor had violated. It is contended that the original allottee and the legal heir had violated the conditions of the Land Assignment Rules issued as per GO(P)No.220/64/Rev. dated 30.3.1964. The affidavit further states that execution of a settlement deed through the Sub Registrar's Office without the knowledge and permission of the Industries Department is illegal. Allegations are made against the Sub Registrar for not noticing that the property in Industrial Development Areas should not be transferred through sale deeds as in the case of normal lands. It is further stated that even though the son of the original allottee was asked to submit documents to set right the mistakes that had been committed already, no steps were taken, and instead, he also committed the very same mistake by transferring the property to another person. It is further stated that the land in question has been acquired after spending huge amounts from the public exchequer for the establishment of Development areas for industrial promotion in the State and that the management and control of such areas are with the General Manager of the District Industries Centre, who has to recommend whether there should be any change regarding the ownership or user of the assigned lands. The contention of the respondents is that if such activity of illegal transfer is permitted, the land acquired by using public money will be converted into private land within years and the role of the Industries Department and the Rules framed for the industrial promotion in the State will become meaningless. The counter affidavit does not say that notice was ever issued to the petitioner before evicting them from the property. It is further submitted that no area has been allotted to the petitioner company and the petitioner company has not executed any agreement with the Department and that action has been taken only for violation of the conditions of assignment by the original allottees. The specific case of the respondents is that GO(MS)No.169/69/ID dated 5.4.1969 and GO(MS)No.8/2020/ID dated 8.1.2020 alone are applicable to the land in Development Areas/plots and none of the other Acts are applicable.
I have considered the pleadings and the documents produced by the parties and the arguments advanced by the counsel for the petitioner and the respondents. Admittedly, Sri C.Alexander was put in possession of the properties in 1957 on the basis of hire purchase agreement and the entire hire charges had been paid by Sri C.Alexander. The Land Assignment Rules referred to in the counter affidavit of the respondents as applicable in the case of Sri C.Alexander were issued only 12 years later, on 5.4.1969. The Land Assignment Rules issued as per GO(P)No.220/Rev. were also issued only on 30.3.1964. Even though the said Rules had been issued during 1964 and 1969, much later, when the petitioner’s predecessor-in-interest was granted the patta, the same was not issued under either of the Rules referred to in the counter affidavit, but under Rule 9(2) of the Kerala Land Assignment Rules, 1964. Ext.P1 patta specifically says that it is issued under Rule 9(2). The said Rules were issued as per SRO No.71/1964 on 23.3.1964 under the powers conferred under Section 7 of the Land Assignment Act. The conditions of the issuance of the patta are stated in the Rules as well as in Appendix II, which is the form in which the patta is to be issued under the Rules. As per the conditions, the land which has been assigned is heritable and alienable. It can thus be seen that the restrictions that are referred to in the counter affidavit are not available in the case on hand, since the patta itself is issued under a different Rule on different conditions. It is not open for the respondents to contend that even though Ext.P1 is issued under Rule 9(2) of the Kerala Land Assignment Rules, 1964, it ought to have been issued under a different Rule, which was issued five years later. It is particularly so since Ext.P1 itself was issued after the issuance of the Land Assignment Rules, 1964 as well as the Rules Relating to Assignment of Industrial Lands in 1969 and it cannot be presumed at this distance of time that the Government had made a mistake regarding the Rule. The counsel for the petitioner placed before me the decision of this Court in O.P.No.9860 of 1993 which was an original petition filed by the predecessor-in-interest Sri C.Alexander, wherein the State of Kerala and the Director of Industries and Commerce were the respondents. That was an original petition filed prior to the issuance of Ext.P1, praying for a direction to the respondents to issue patta to the petitioner in respect of the two 'C' type sheds in the industrial estate of Kollakkadavu, Mavelikkara. It can be seen from the judgment that from June 1957 onwards Sri Alexander was in occupation of the sheds and that in 1967 dispute arose between Sri Alexander and the Government regarding the nature of the occupancy. The Government took a stand that the original allottee was occupying the shed on a rental arrangement. O.S.No.279 of 1971 filed by the Small Scale Industries Corporation for recovery of arrears of rent was dismissed finding that Sri C.Alexander was in possession on the basis of a hire purchase agreement. Appeal filed against the judgment in O.S.No.279 of 1971 was also dismissed. It is further seen that Sri Alexander had made various representations for issuance of patta for the land and had filed O.P.No.4871 of 1986 which was disposed of with a direction to the Director of Industries and Commerce to dispose of the representation. Though no orders were issued, on 23.2.1989 the Government passed an order regarding the settlement of accounts and demanded a payment of Rs.16,798/-. The amount was remitted by Sri Alexander on 8.1.1999. Even thereafter no patta was issued, which led to the filing of O.P.No.9860 of 1990. A counter affidavit had been filed on behalf of the Government in the said original petition wherein it is stated that the Industries Department had recommended the case to the Revenue Department for issuance of patta. The original petition was disposed of by this Court by judgment dated 10.12.1993 directing respondents 1 and 2 herein to issue appropriate direction to the Revenue authorities to issue patta of the land to the petitioner. It is thereafter that Ext.P1 was issued. The respondents cannot hence contend that Ext.P1 was issued on a mistake. It is evident that Ext.P1 was issued pursuant to a direction issued by this Court in an original petition in which the State had contested the matter and filed counter affidavit wherein it was specifically stated that issuance of patta was recommended by the Industries Department to the Revenue Department.
In the above circumstances, the action of the respondents in evicting the petitioner who is an alienee of the son of the original allottee is not legally sustainable. Ext.P10 is issued under a misconception of law and proceeds as if the respondents have necessary authority to evict the allottee for violation of Rule 14 of the Land Allotment Rules, G.O.(MS)No.169/69/ID dated 5.4.1969. Since the land was assigned after complete payment of the entire hire charges (which in effect is the value of the land), under the Kerala Land Assignment Rules, 1964, Rule 9(2) and in Form Appendix II, the respondents cannot be heard to contend otherwise and insist on compliance with certain other Rules, which are not the Rules under which the assignment was made.
In the result, the writ petition is allowed. Ext.P10 is quashed. There will be a direction to the respondents to restore possession of the property already taken over as evidenced by Ext.R3(a) mahazar to the petitioner forthwith.