IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 26TH MAY 2010 / 5TH JYAISHTA 1932 WP(C).No. 32544 of 2006(Y) ---------------------------------- PETITIONER(S): ------------------------ SUD CHEMIE INDIA (P) LTD., ERSTWHILE UNITED CATALYSTS AND CHEMICALS INDIA LTD., EDAYAR INDUSTRIAL AREA, BINANIPURAM P.O., KOCHI-683 502, REPRESENTED BY GENERAL MANAGER, CORPORATE HRD, P.PREMCHAND. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL SECRETARY REVENUE (A) DEPARTMENT, GOVT. OF KERALA, THIRUVANANTHAPURAM-1. 3. THE DIRECTOR OF INDUSTRIES, VIKAS BHAVAN, THIRUVANANTHAPURAM. 4. THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, ERNAKULAM. 5. THE DISTRICT COLLECTOR, CIVIL STATION, KAKKANAD, KOCHI. R1 TO R5 BY GOVT. PLEADER SRI.K.RAMESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.32544/2006 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE NOTIFICATION DTD. 30.3.1964. P2:- COPY OF THE G.O.(MS) NO.1500/76/RD DTD. 12.10.1976. P3:- COPY OF THE REGISTERED PATTA DOCUMENT DTD. 31.12.77. P4:- COPY OF THE POSSESSION CERTIFICATE NO.1044/95 DTD. 26.8.1995. P5:- COPY OF THE SHOW CAUSE NOTICE DT. 14.2.2001. P6:- COPY OF THE REPLY TO SHOW CAUSE NOTICE DTD. 21.5.2001. P7:- COPY OF THE STATEMENT FILED BY THE PETITIONER BEFORE THE GOVT. IN THE PERSONAL HEARING ON 15.2.03. P8:- COPY OF THE G.O.(MS) NO.166/06 REV. DTD. 29.5.2006. P9:- COPY OF THE SANCTION ORDER DTD. 31.10.2006 BEARING PERMIT NO.225/2006. P10:- COPY OF THE ORDER DT.D 31.10.2006 APPROVING THE PLAN. P11:- COPY OF THE DRAWING APPROVING THE PLAN. P12:- COPY OF THE CERTIFICATE OF APPRECIATION ISSUED BY THE STTE PCB. P13:- COPY OF THE CERTIFICATE OF APPRECIATION ISSUED BY THE STATE PCB. P14:- COPY OF THE CERTIFICATE OF APPRECIATION DT. 26.2.2006 ISSUED BY THE LOCAL AREA ENVIRONMENT COMMITTEE. P15:- COPY OF THE BALANCE SHEET FOR THE FINANCIAL YEAR 2007-08. P16:- COPY OF THE COMPARATIVE FINANCIAL STATEMENT FOR THE LAST 10 YEARS AS PUBLISHED IN THE ANNUAL REPORT OF THE PETITIONER FOR THE YEAR 2007-08. TRUE COPY P.A. TO JUDGE tss S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 32544 of 2006 - - - - - - - - - - - - - - - - - - - - - - - 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 W.P.(C)No. 32544 of 2006 -2- 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 W.P.(C)No. 32544 of 2006 -3- 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 W.P.(C)No. 32544 of 2006 -4- 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 W.P.(C)No. 32544 of 2006 -5- 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 W.P.(C)No. 32544 of 2006 -6- 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 W.P.(C)No. 32544 of 2006 -7- 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 W.P.(C)No. 32544 of 2006 -8- 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: W.P.(C)No. 32544 of 2006 -9- 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 W.P.(C)No. 32544 of 2006 -10- 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 W.P.(C)No. 32544 of 2006 -11- 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/