IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 26TH MARCH 2010 / 5TH CHAITHRA 1932 WP(C).No. 37055 of 2009(B) --------------------------------------- PETITIONER(S): ------------------------- NAZEER V.K., S/O.V.K.ABDUL KASREEM, VATHUKKAL PARAMBIL, KAKKANADU P.O., NEAR KWA WATER TANK, KOCHI-682 030. BY ADV. MR.BECHU KURIAN THOMAS RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, DEPARTMENT OF INDUSTRIES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF INDUSTRIES & COMMERCE DIRECTORATE OF INDUSTRIES & COMMERCE, THIRUVANANTHAPURAM. 3. GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, GANDHINAGAR, KADAVANTHARA P.O. ERNAKULAM, COCHIN-20, REP.BY ITS SEBASTIAN POTTAPALLY. 4. M/S.EMMA EXPORTERS, REGISTERED OFFICE AT 33/265 C, EMMA HOUSE, INDUSTRIAL DEVELOPMENT PLOT, KALAMASSERY, KOCHI-683 109. REPRESENTED BY ITS MANAGING PARTNER, PRAVIN KUMAR.B. 5. PRAVIN KUMAR.B., MANAGING PARTNER EMMA EXPORTERS, 33/265 C, EMMA HOUSE, INDUSTRIAL DEVELOPMENT PLOT, KALAMASSERY, KOCHI-683 109. W.P.(C) NO.37055/2009 6. EMMY AUGUSTUS, PARTNER, EMMA EXPORTERS, 33/265 C, EMMA HOUSE, INDUSTRIAL DEVELOPMENT PLOT, KALAMASSERY, KOCHI-683 109, RESIDING AT 14/1212, MOONTHINGAL, MOOLUMKUZHI, NAZARATH, COCHIN-682 001. 7. BETTY THOMAS, PARTNER EMMA EXPORTERS, 33/265 C, EMMA HOUSE, INDUSTRIAL DEVELOPMENT PLOT, KALAMASSERY, KOCHI-683 109, RESIDING AT KALATHIPARAMBIL HOUSE, ALAPPAT CROSS ROAD, RAVIPURAM, COCHIN-682 015. R1 TO R3 BY GOVT. PLEADER SMT.SMITHA SUKUMAR R4 TO R7 BY ADV MR.S.SREEKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.37055/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE G.O.(MS) 297/70/ID DTD. 24.8.70. P2:- COPY OF THE LETTER DTD. 21.6.08. P3:- COPY OF THE ORDER DTD. 30.8.08. P4:- COPY OF THE ORDER DTD. 14.11.08 ISSUED BY THE 3RD RESPONDENT. P5:- COPY OF THE PARTNERSHIP DEED DTD. 7.10.08. P6:- COPY OF THE ACKNOWLEDGEMENT DTD. 13.10.08 ISSUED FROM THE OFFICE OF THE 3RD RESPONDENT. P7:- COPY OF THE ENTERPRENEURS MEMORANDUM FOR SETTING UP MICRO, SMALL OR MEDIUM ENTERPRISE DTD. 3.10.08. P7(a):- COPY OF THE RESOLUTION SIGNED BY PETITIONER AS WELL AS RESPONDENTS 5 TO 7. P8:- COPY OF THE OWNERSHIP CERTIFICATE DTD. 30.1.09 ISSUED BY THE MUNICIPALITY. P8(a):- COPY OF THE OCCUPANCY CERTIFICATE DTD. 15.1.09. P8(b):- COPY OF THE PROPERTY TAX RECEIPT DTD. 29.1.09. P9:- COPY OF THE LETTER DTD. 30.12.09 ISSUED BY THE 3RD RESPONDENT. P10:- COPY OF THE JUDGMENT DTD. 31.3.09 IN WOC. 36750/08. P11:- COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT. P12:- COPY OF THE REPLY DTD. 8.12.09 ISSUED BY THE PUBLIC INFORMATION OFFICER TO THE 3RD RESPONDENT. P13:- COPY OF THE FRAUDULENT PARTNERSHIP DEED DTD. 18.9.09 SUBMITTED BY RESPONDENT 5 TO 7. P14:- COPY OF THE REQUEST LETTER DTD. 25.9.09 SUBMITTED BY THE 6TH RESPONDENT. P14(a):- COPY OF THE LETTER DTD. 21.10.09. P15:- COPY OF THE ORDER DTD. 6.1`0.09 ISSUED BY THE 3RD RESPONDENT. P16:- COPY OF THE JUDGMENT DTD. 9.6.09 IN WA. 1177/09. W.P.(C) NO.37055/2009 P17:- COPY OF THE G.O.(RT) 1522/09/ID DTD. 2.12.09 ISSUED BY THE IST RESPONDENT. P18:- COPY OF THE LETTER DTD. 21.10.09 ISSUED BY THE 3RD RESPONDENT. P19:- COPY OF THE REPRESENTATION DTD. 9.12.09 WHICH WAS RECEIVED BY THE 3RD RESPONDENT ON 10.12.09. P20:- COPY OF THE REPRESENTATION DTD. 11.12.09. P21:- COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE SECRETARY, KALAMASSERY MUNICIPALITY. RESPONDENT'S EXHIBITS R4(a):- COPY OF THE PARTNERSHIP DEED DTD. 14.9.07. R4(b):- COPY OF THE COMPLAINT IN CRL.MP.4318/09 BEFORE THE ACJM, ERNAKULAM FILED BY THE 5TH RESPONDENT R4(c):- COPY OF THE LETTER DTD. 21.10.09 ISSUED BY THE GENERAL MANAGER TO THE KALAMASSERY MUNICIPALITY. R4(d):- COPY OF THE CERTIFICATE DTD. 22.10.09 ISSUED BY KALAMASSERY MUNICIPALITY. R4(e):- COPY OF THE RECEIPT ISSUED FOR THE PAYMENT OF PROPERTY TAX DTD. 22.10.09. R4(f):- COPY OF THE PLAINT IN OS. 1168/09 FILED BY RESPONDENTS 4 TO 7 BEFORE THE MUNSIFF'S COURT, ERNAKULAM. TRUE COPY P.A. TO JUDGE tss THOTTATHIL B. RADHAKRISHNAN, J. ------------------------------------------------------------- WP(C) NO. 37055 OF 2009 ----------------------------------------- Dated this the 26th Day of March, 2010 JUDGMENT ≈≈≈≈≈≈≈≈ The fourth respondent, a firm, was constituted with respondents 6 and 7 as partners. In terms of Exhibit P1 rules for allotment of land in development plots on hire purchase basis, a plot was ear-marked for allotment to that firm, for an apparel manufacturing unit. 2. Thereafter, it was proposed that the petitioner and fifth respondent be brought into that firm, for augmenting the utility and by changing the purpose from apparel manufacturing to Flex Printing. The proposal to reconstitute the fourth respondent firm by inducting the petitioner and the fifth respondent and the proposal to change the nature of the activity got the approval of the Director of Industries and Commerce. 3. It appears that, in the meanwhile, there was a litigation at the instance of a neighbour, as regards the change of the nature of the activity. That led to hearing by WP(C) NO. 37055 OF 2009 2 the Government and the consequential issuance of an order affirming the decision of the Director of Industries and Commerce granting permission for change of the nature of the activity. 4.The District Industries Officer acting on the order of the Director of Industries and Commerce issued Exhibit P4 formal order, ordering the following changes in M/s. Emma Exporters, Development Plot, Kalamassery:- “1. To change the activity from Garment Industry to Flex Printing 2. To approve the reconstitution of partnership by admitting two more partners ie; Sri. Nazeer. V.K., Vathukkalparmabil, Kakkanadu.P.O, Near KWA Water Tank, Kochi -682 030 and Sri. Pravin Kumar.B., Block No. 201, Thulasi Bhavan, Kallar P.O., Idukki-685 552, on condition that no change is allowed in the constitution of the ownership for a minimum period of 3 years and this project will not affect the nearby Garment Industries. This office proceedings cited as 3rd above is modified to the above extent. This order is issued subject to the following conditions also:- 1. The firm should set up the unit within 3 months from the date of issue of this order. 2. The firm shall submit revised partnership deed and WP(C) NO. 37055 OF 2009 3 project report in the name of M/s. Emma Exporters before execution of hire purchase agreement. 3. The firm should execute hire purchase agreement as per rules.” The said order was in conformity with the decision of the Director of Industries and Commerce. 5. When the revised partnership deed was, thereafter, submitted in the name of M/s. Emma Exporters, the petitioner was shown to have not joined and the partner ship deed included only three parties. The petitioner would contend that this is essentially, a fraud played on him. It is also stated that, as of now, a civil suit is pending between the parties. I do not find that, it is required of the Writ Court to consider the rival contentions as to whether it is the petitioner who did not join the partnership deed or whether it is a case where he was being excluded by a clever mechanization of the other three. But it needs to be noticed that, Exhibit P4 decision of the District Industries Officer issued pursuant to the decision of the Director of WP(C) NO. 37055 OF 2009 4 Industries and Commerce has to be strictly adhered to, by the parties. In terms of the rules containing in Exhibit P1 Government Order, the authority to whom the application for land is to be made, is the Director of Industries and Commerce and it is that authority, which is empowered to resume the land and had all things necessary. The District Industries Officer acts under the order of the Director. Exhibit P1 Government Order has a public purpose. It is issued mainly to provide industrial estates by providing land for development of Small Scale Industries. The development plots are allotted, having regard to various Constitutional goals. It is not merely an offer for private enterprise. The activities in the industrial area, including development plots, are to be particularly under the control of State Government and the Director of Industries and Commerce. Therefore, though the Government Officials, particularly, the Director of Industries and Commerce, may not be eligible to decide on the private commercial conflicts WP(C) NO. 37055 OF 2009 5 between the parties in a partnership, the Director's decision shall govern the activities. It is for the Director of Industries and Commerce, to ultimately consider whether the conditions insisted on, by the Director and the District Industries Officer, have been complied with. I say this in the specific context of the fact, that the approval given for Exhibit P4 was for reconstitution of the partnership by admitting two more partners, namely, Sri. Nazeer V.K. ( Writ Petitioner) and Sri. Pravin Kumar B. ( 5th respondent), on condition that, no change is allowed in the constitution of ownership for a minimum period of three years. The question whether the conditions in Exhibit P4, which are in terms of directions of the Director of Industries and Commerce, have been complied with, is a matter to be looked into by the Director of Industries and Commerce himself before the parties are permitted to enter into hire purchase agreement involving Government land. In the above circumstances, it is ordered that the WP(C) NO. 37055 OF 2009 6 parties to this writ petition shall appear before the Director of Industries and Commerce, the second respondent herein, at 11.00 a.m. on 29-03-2010 to enable that officer to fix the appropriate date for hearing the parties after summoning the files from the District Industries Officer. A decision shall be issued, having regard to the exigencies of the circumstances, at the earliest, more particularly because of the financial commitment that the parties appear to have made to lending institutions. It is clarified that this judgment does not touch upon any of the matters on merits. The writ petitions is ordered accordingly. THOTTATHIL B. RADHAKRISHNAN, JUDGE rkc