IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 WP(C).No. 36750 of 2008(Y) -------------------------------------- PETITIONER: ------------------- SCHIFFLIES INDIA LTD., PLOT NO.244, DEVELOPMENT PLOTS, SOUTH KALAMASSERY, COCHIN -REPRESENTED BY ITS DIRECTOR - K.M. SEBASTINE. BY ADV. MR.R.RAMADAS. RESPONDENTS: ------------------------ 1. THE PRINCIPAL SECRETARY TO GOVERNMENT, INDUSTRIES DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF INDUSTRIES, INDUSTRIES DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTER, ERNAKULAM. 4. EMMY AGUSTUS, M/S EMMA EXPORTERS, DEVELOPMENT PLOT, KALAMASSERY. 5. BETTY THOMAS, M/S EMMA EXPORTERS, DEVELOPMENT PLOT, KALAMASSERY. R1 & R2 BY GOVT. PLEADER SMT. N. SUDHADEVI, R4 & R5 BY ADV. MR.S.SREEKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.36750/2008-Y: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PROCEEDINGS OF THE R.3. DTD. 19/03/2005. EXT.P.2: COPY OF THE ARTICLES OF AGREEMENT SIGNED BY THE MANAGING DIRECTOR OF THE PETITIONER COMPANY AND THE R.3, DTD. 23/04/2005. EXT.P.3: COPY OF THE REPRESENTATION DTD. 07/02/2007 SUBMITTED BY THE PETITIONER BEFORE R.3. EXT.P.4: COPY OF THE REPRESENTATION DTD. 20/04/2007 SUBMITTED BY THE PETITIONER BEFORE R.3. EXT.P.5: COPY OF THE COVERING LETTER DTD. 29/03/2008 OF THE SECRETARY TO GOVERNMENT TOGETHER WITH THE REPRESENTATION DTD. 28/02/2008 SUBMITTED BY THE PETITIONER BEFORE R.3. EXT.P.5.A: COPY OF THE REPRESENTATION DTD. 04/09/2008 BEFORE THE R.3. EXT.P.5.B: COPY OF THE REPRESENTATION DTD. 25/11/2008 BEFORE THE HONOURABLE MINISTER FOR INDUSTRIES, GOVT. OF KERALA. EXT.P.6: COPY OF THE REPLY DTD. 03/11/2008 GIVEN BY THE PUBLIC INFORMATION OFFICER. EXT.P.7: COPY OF THE COVERING LETTER DTD. 26/11/2008. EXT.P.8: COPY OF THE FILE NOTE BEARING NO. A12/2660/05. EXT.P.9: COPY OF THE LETTER DTD. 19/06/2008 ISSUED BY THE R.3. TO THE 4TH AND 5TH RESPONDENTS. EXT.P.10: COPY OF THE LETTER DTD. 30/08/2008 FROM THE R.2. TO THE R.3. EXT.P.11: COPY OF THE LETTER DTD. 13/01/2005 TO THE GENERAL MANAGER, DIC, EKM. EXT.P.12: COPY OF THE PROJECT REPORT SUBMITTED BY R4 & 5 BEFORE THE DIC. DT. NIL. EXT.P.13: COPY OF THE PROJECT REPORT -DO- -DO- DTD. 23/12/2008. EXT.P.14: COPY OF THE PROJECT REPORT OF M/S. EM – MA EXPORTERS, DT. NIL. EXT.P.15: COPY OF THE PARTNERSHIP DEED, DTD. 07/10/2008. EXT.P.16: COPY OF THE PHOTOGRAPH SHOWING THE CONSTRUCTION OF A SMALL ROOM. EXT.P.17: COPY OF THE LETTER NO. A-12/6245/97 DTD. DECEMBER 2004 FROM THE GENERAL MANAGER, DIC, DRNAKULAM TO THE DIRECTOR OF INDUSTRIES. W.P.(C). NO.36750/2008-Y: RESPONDENTS' EXHIBITS & ANNEXURES: EXT.R4.A: COPY OF THE ORDER DTD. 18/11/2005. EXT.R4.B: COPY OF THE CERTIFICATE DTD. 28/03/2007 ISSUED BY R.3. EXT.R4.C: COPY OF THE PROCEEDINGS DTD. 30/08/2008 OF THE R.2. EXT.R4.D: COPY OF THE ORDER DTD. 14/11/2008 OF THE R.3. EXT.R4.E: COPY OF THE RECEIPT DTD. 29/01/09 FOR PAYMENT OF PROPERTY TAX. EXT.R4.F: COPY OF THE JUDGEMENT DTD. 08/11/2006. EXT.R4.G: COPY OF THE LETTER DTD. 30/01/2009 ALONG WITH THE LIST OF INDUSTRIES. ANNEXURE R3.A: COPY OF THE ORDER ISSUED BY THE R.3. ANNEXURE R3.B: COPY OF THE LETTER NO. IDS/25266/04 DTD. 13/01/2005 OF THE DIRECTOR OF INDUSTRIES AND COMMERCE. //TRUE COPY// P.S. TO JUDGE. Prv. V.GIRI, J. ------------------------- W.P.(C).No.36750 of 2008 ------------------------- Dated this the 31st day of March, 2009. JUDGMENT The petitioner, an industrial unit, runs a garment manufacturing unit in a plot of land having an extent of 35 cents, forming part of the Kalamassery Industrial Area. The land was allotted as per Ext.P1 dated 19.3.2005. According to the petitioner, it has complied with all the conditions mentioned in Ext.P1. It proceeded to set up an industrial unit and as is evidenced by Ext.P5 the civil constructions have been completed and the petitioner has a working staff of more than 100 female workers. After the allotment, the petitioner felt that there is scope for expansion of the unit. It, therefore, sought for allotment of an additional extent of 50 cents, as evidenced by Ext.P3, which request was repeated in Ext.P4 and Ext.P5 series. 2. In the meanwhile, respondents 4 and 5 herein sought for and obtained allotment of 50 cents in the W.P.(C).No.36750 of 2008 :: 2 :: industrial area and situated near the unit of the petitioner. This is evidenced by Ext.R4(a) dated 18.11.2005. According to the 4th respondent, the entire amount, by way of hire purchase money, has been paid and construction of the factory building is afoot. The petitioner had no grievance as regards the 50 cents allotted in favour of the 4th respondent. But according to the petitioner, the 4th respondent did not take any steps to start a garment manufacturing unit. Instead, it wanted a change of user of the land and without starting any construction, though the allotment was made in November, 2004, the 4th respondent sought for permission from the Director of Industries and Commerce to change the activity of M/s.Emma Exporters from garment industry to Flex Printing Industry. Vide Ext.P10, the permission sought for by the 4th respondent was granted by the Director of Industries and Commerce. Thereupon, as per the reconstituted partnership, (the original partnership consisted of respondents 4 and 5), the names of two persons were also permitted to be W.P.(C).No.36750 of 2008 :: 3 :: included as per Ext.R4(d) and they were permitted to pay tax as per Ext.R4(e). The writ petition has been filed challenging Ext.P10 order, which is the same as Ext.R4(c). 3. A counter affidavit has been filed respondents 4 and 5 and a statement has been filed by the 3rd respondent. I heard learned Mr.T.Krishnanunni, learned Senior Counsel along with Mr.R.Ramdas for the petitioner, Mr.S.Sreekumar for respondents 4 and 5 and learned Government Pleader Smt.Sudhadevi. 4. The petitioner is aggrieved not by the allotment of 50 cents in favour of respondents 4 and 5, but by the change of user which has been permitted by the Director of Industries and Commerce. Mr.T.Krishnanunni points out that, as is evidenced by Ext.P17 proposal made by the General Manager, District Industries Centre, as early as in December 2004, permission was sought to earmark 1 acre of land in the Kalamassery Development Area for garment manufacturing unit, as is evidenced by Ext.P11 and such approval was also granted and it is thereafter that W.P.(C).No.36750 of 2008 :: 4 :: allotment was made in favour of the petitioner and subsequently, in favour of respondents 4 and 5. It is during the interregnum that the change is sought for. 5. Mr.Sreekumar contends, on the other hand, that the allotment made in favour of respondents 4 and 5 evidenced by Ext.R4(a) was never challenged by the petitioner at any point of time. The change of user was found necessary and on application it was obtained. The petitioner has no locus standi to challenge either Ext.P10 or the subsequent permission granted in favour of respondents 4 and 5 by Ext.R4(c). 6. It is true that the allotment made in favour of respondents 4 and 5 have not been challenged by the petitioner. It is a moot question whether the petitioner would be entitled to challenge the same. But, I take note of the fact that as per Ext.P11 the Director had taken a decision to earmark 1 acre of land exclusively for garment manufacturing units. It may be open to the Director to defreeze such land and make it available for other units also. But what is to be noted here is that the W.P.(C).No.36750 of 2008 :: 5 :: original allotment in favour of respondents 4 and 5 was for a garment manufacturing unit. The application for change of user was made in the year 2008. By the time, there was already an application filed by the petitioner intimating its proposal of expansion and seeking allotment of additional 50 cents. 7. Learned Government Pleader submits that there is other land available in the industrial development area but this fact is denied by the learned counsel for the petitioner. 8. Mr.Sreekumar submits that the land allotted in favour of respondents 4 and 5 is outside the 1 acre of land, which was sought to be earmarked as per Ext.P17. In my view, the Director should consider the plea made by the petitioner, with reference to its request for additional allotment of 50 cents and also with reference to the objection that they have now raised against the change of user that has been permitted in favour of respondents 4 and 5. W.P.(C).No.36750 of 2008 :: 6 :: 9. Accordingly, the writ petition is disposed of in the following terms: (a) The 2nd respondent Director of Industries and Commerce shall consider the objections raised by the petitioner as regards the change of user sanctioned in favour of respondents 4 and 5 as per Ext.P10{Ext.R4 (c)}. (b) In doing so, the 2nd respondent shall consider whether such change of user as such might result in any prejudice or detriment being caused to the garment manufacturing unit run by the petitioner. (c) If the Director comes to the conclusion that such prejudice or detriment would be caused by the change of user permitted in favour of respondents 4 and 5 then there would be no restraint on the Director revoking the permission already granted. (d) Further, it shall also be open to the Director to consider any other steps that may have to be taken by respondents 4 and 5 to see that no hardship is caused to the petitioners. In the alternative, the Director shall consider whether any other suitable extent of land situated in the vicinity could be allotted in favour of the petitioner, satisfying its claim for expansion of the unit as made in Exts.P3 and P5. W.P.(C).No.36750 of 2008 :: 7 :: (e) Orders in this regard shall be passed by the Director within two months from the date of receipt of a copy of this judgment. Respondents 4 and 5 may be permitted to continue with the civil construction which they have already undertaken. But, they shall not start any activity except on permission being granted by the Director. Sd/- (V.GIRI) JUDGE sk/ //true copy//