IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 18TH JULY 2008 / 27TH ASHADHA 1930 W.A.No. 395 of 2008(E) -------------------------------------- AGAINST THE JUDGEMENT IN WPC.21771/2007 DATED 14/08/2007 .................... APPELLANT/6TH RESPONDENT IN THE WP(C): ------------------------------------------------------------------ I.MUMTHAZ, AGED 35 YEARS, W/O. SHAJI, PROPRIETRIX, M/S. OASIS RUBBER INDUSTRIAL ESTATE, CHANGANACHERRY, RESIDING AT PARAKKAL HOUSE, I.O.C. JUNCTION, CHANGANACHERY. BY ADV. SRI.C.S.MANILAL RESPONDENTS/RESPONDENTS 1 TO 5 AND WRIT PETITIONER: ------------------------------------------------------------------------------------------- 1. KERALA STAE ELECTRICITY BOARD, VYDHYUTHI BHAVAN, PATTOM, TRIVANDRUM, REPRESENTED BY ITS SECRETARY. 2. THE EXECUTIVE ENGINEER, CHANGANACHERRY ELECTRICAL DIVISION, CHANGANACHERRY P.O., KOTTAYAM. 3. THE ASSISTANT EXECUTIVE ENGINEER, THONGANAL ELECTRICAL DIVISION, KERALA STATE ELECTRICITY BOARD, THONGANAL P.O., KOTTAYAM. 4. M/S. KERALA STATE SMALL SCALE INDUSTRIES DEVELOPMENT CORPORATION LIMITED (SIDCO), P.B.NO.50, 6TH FLOOR, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM, REPRESENTED BY THE MANAGING DIRECTOR. W.A.NO.395 OF 2008 - 2 - 5. THE ESTATE MANAGER, KERALA STATE SMALL SCALE INDUSTRIES DEVELOPMENT CORPORATION, INDUSTRIAL ESTATE P.O., CHANGANACHERRY KOTTAYAM DISTRICT. 6. MATHEW ANTONY, S/O. K.C. ANTONY, KARIYIL HOUSE, M/S. DAKSHIN RUBBER WORKS, INDUSTRIAL ESTATE P.O., CHANGANACHERRY, KOTTAYAM DISTRICT. R1 TO R3 BY ADV.SRI.C.K.KARUNAKARAN, SC, KSEB R4 & R5 BY ADV.SRI.R.T.PRADEEP R6 BY ADV.SRI.JOBI JOSE KONDODY THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18/07/2008, ALONG WITH WA NO.3027 OF 2007 & CAC NO.8 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. ------------------------------------------- W.A.Nos. 3027 of 2007 & 395 of 2008 & Cont. Appeal No.8 of 2007 ------------------------------------------ Dated, this the 18th day of July, 2008 JUDGMENT Basheer, J. These three appeals are being disposed of by this common judgment since the parties are common and the issues involved in them are closely inter-related. 2. Mr.Mathew Antony, the common petitioner in the two writ petitions was initially allotted five cents of land in the Industrial Estate owned by the Kerala Small Industries Development Corporation Limited ('SIDCO' for short) at Changanacherry. It is the admitted position that the SIDCO had allotted an adjoining plot measuring 3 cents to the petitioner thereafter. 3. It appears that SIDCO had acceded to the request of the Association formed by the owners of the various Small Scale Industrial Units to construct a road inside the Industrial Estate. According to the petitioner, a small strip of land measuring 2 cents lying between the land allotted to him and the road also should have been allotted to him for the better enjoyment of his unit and to gain access to his unit from the road. 4. The above strip of land turned out to be the bone of contention in these cases. Smt.I.Mumthaz (the common appellant in W.A.No.3027 of 2007, etc. 2 these cases) who was subsequently impleaded as additional respondent No.3 in W.P.(C) No.16886 of 2006 and as additional respondent No.6 in W.P.(C) No.21771 of 2007 is the neighbouring unit owner. She had also staked claim over a portion of the said strip of land measuring 2 cents. According to the appellant, the said land ought to have been allotted to her for the better enjoyment of her unit. She has raised a further contention that the petitioner had made some illegal construction in the land in question without the permission of SIDCO. The shed constructed by the petitioner is abutting to her plot of land causing nuisance and annoyance. She had filed a suit against the petitioner for mandatory injunction which is now pending before the Munsiff Court, Changanacherry. Anyhow, we do not propose to deal with the rival contentions in this regard since they fall in the realm of disputed question of fact. Similarly, we do not deem it necessary or proper to deal with the merit or demerit of the rival claims made by the parties in view of the order that we propose to pass in these three cases.. 5. When the writ petitions came up for consideration before the learned Single Judge, they were disposed of with certain directions which are extracted hereunder: “2. The petitioner has produced photograph which W.A.No.3027 of 2007, etc. 3 show the relative location of the industries of the petitioner and the 6th respondent. It is stated that two cents of land is lying in front of the new factory building constructed by the petitioner. Photograph shows that the said land is between the edge of the road and the new building constructed by the petitioner. Even though counsel for the KSIDC submitted that the said land is required for road widening, I do not think such widening of road is possible without demolition of the building of 6th respondent because without achieving uniform width, road widening is not possible. Moreover, land is seen available on the other side of the road also. In any case if road widening is required, KSIDC is free to widen the road. However, since industry cannot run without availability of power, there will be direction to KSEB to instal the transformer in the land in front of the petitioner's new building and give power allocation on petitioner meeting the cost for the same. It is for KSIDC to recover cost of land at market value which will be paid by the petitioner on demand by KSIDC. Counsel for KSIDC stated that petitioner has encroached upon 1.63 cents of land. If encroachment is made, KSIDC should be paid market value for the same also on demand, failing which petitioner can be evicted. If anybody has made illegal construction including 6th respondent, it is for the KSIDC to remove the same and restore the land to it's original nature.” W.A.No.3027 of 2007, etc. 4 6. In this context it is worthwhile to note that the first prayer made by the petitioner in W.P.(C) No.16886 of 2006 was to issue a writ of mandamus to SIDCO to process the application filed by him in furtherance of Exts.P8 and P10 for allotting the vacant land measuring 2 cents and lying between his unit and the road running through the Industrial Estate. The other prayer was to issue a writ of mandamus directing the SIDCO and its Estate Manager to allot to him the two cents of vacant land lying in front of his unit. 7. The primary prayer in the other writ petition, namely W.P. (C) No.21771 of 2007 was to issue a writ of mandamus to the Executive Engineer and the Assistant Executive Engineer of the Kerala State Electricity Board “to grant enhancement of connected load” to the petitioner's unit either by enhancing the capacity of the existing transformer or by erecting a new transformer . The other prayer was to issue a writ of mandamus directing the SIDCO and its Estate Manager to permit the Electricity Board to grant service connection to the expanded unit of the petitioner. 8. We have referred to the prayers made by the petitioner in the two writ petitions only to indicate that the learned Single Judge, in our view, had chosen to grant certain reliefs which were never in W.A.No.3027 of 2007, etc. 5 contemplation of the petitioner himself. Anyhow, we refrain from making any further observation in this regard since, in our view, it would have been appropriate if the entire issue was left to the SIDCO to be sorted out after hearing the parties concerned. 9. In the above facts and circumstances, we dispose of W.A.No.3027 of 2007 and W.A.No.395 of 2008 with the following directions: i) The impugned order passed by the learned Single Judge in W.P.(C) Nos.21771 of 2007 and 16886 of 2006 is set aside. ii) The SIDCO shall invite the petitioner and respondent No.3/6 (appellant) and hear them and take a decision in the matter with an open mind. iii) It will be open to the petitioner and the appellant to raise all their contentions before the SIDCO in support of their rival claims over the narrow strip of land in question which appears to be the bone of contention in these cases. iv) Simultaneously, the grievance aired by the petitioner in the writ petitions shall also be addressed by the SIDCO and a final comprehensive decision shall be taken in the matter after considering all relevant aspects of the matter. W.A.No.3027 of 2007, etc. 6 v) The petitioner and the appellant are directed not to put up any further construction in the disputed strip of land till a decision is taken one way or the other by the SIDCO. 8. In view of the order passed in the writ appeals, Cont. Appeal No.8 of 2007 which was an offshoot of the impugned judgment has become infructuous. Therefore, it is closed. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE vns