IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 WP(C).No. 5905 of 2009(G) ------------------------- PETITIONER(S): --------------- K.VIJAYAKUMAR, CHITHIRA, PLAKKODU, EDAKKIDAM P.O. BY ADV. SRI.V.BHASKARAN PILLAI SMT.S.LEELA SRI.B.VINOD RESPONDENT(S): --------------- 1. THE DIRECTOR OF INDUSTRIES THIRUVANANTHAPURAM. 2. THE GENERAL MANAGER DISTRICT INDUSTRIES CENTRE, KOLLAM. 3. THE ADMINISTRATOR THE QUILON DISTRICT MINI INDUSTRIAL ESTATE CO-OPERATIVE SOCIETY LTD.NO.S.I.N.D.(Q) 327 QUILON. 4. THE QUILON DISTRICT MINI INDUSTRIAL ESTATE CO-OPERATIVE SOCIETY LTD.NO.S.I.N.D.(Q) 327 REPRESENTED BY ITS MANAGING DIRECTOR. 5. VISWANADHAN,SUBODU BHAVAN KADAKKODU.PO, EZHUKONE (VIA) ADV. SRI.A.MOHAMED MUSTAQUE FOR R3 & R4 SRI.T.PRAVEEN FOR R5 GOVERNMENT PLEADER SRI. K.C. SANTHOSH KUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 5905/2009. ------------------------------------------------------------------ EXT.P1 TRUE COPY OF LETTER DT. 18-11-99. EXT.P2 ALLOTMENT ORDER DT. 5-12-2008 EXT.P3 REPRESENTATION SUBMITTED TO THE DIRECTOR OF INDUSTRIES. EXT.P4 JUDGMENT DT. 15-12-2008 IN W.P.C.NO. 33937/2008. EXT.P5 TRUE COPY OF CERTIFICATE. EXT.P6 LETTER DT. 31-12-2008. EXT.P7 LETTER DT. 6-1-2009. EXT.P8 ALLOTMENT ORDER DT. 2-1-2009. RESPONDENTS' EXHIBITS: ------------------------------------- EXT.R2(a) AGREEMENT DT. 18-11-1999. EXT.R2(b) NOTICE DT. 10-7-2000. EXT.R2(c) LETTER DT. 9-2-2001. EXT.R2(d) LETTER DT. 3-4-2002. EXT.R2(e) MAHAZAR DT. 13-2-2006 EXT.R2(f) LETTER DT. 1-7-2006. EXT.R2(g) LETTER DT. 2-12-2008. EXT.R2(h) LETTER DT. 3-1-2009. EXT.R4(a) RESOLUTION DT. 27-8-2005. EXT.R4(b) MAHAZA DT. 13-2-2006. EXT.R4(c) REQUEST DT. 17-2-2008. EXT.R4(d) RESOLUTION DT. 19-5-2006. EXT.R4(e) REQUEST DT. 30-10-2008. EXT.R5(a) ALLOTMENT ORDER DT. 3-1-2009. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 5905 of 2009 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 11th November, 2009. J U D G M E N T The petitioner is a member of the 4th respondent-society by name Quilon District Mini Industrial Estate Co-operative Society. The said society owns an industrial estate in which plots are allotted to members of the society for the purpose of starting industries on hire purchase basis. A shed was allotted to the petitioner in the industrial estate on 18-11-1999. The petitioner was to pay the hire purchase price in instalments. The petitioner states that after allotment of the shed, the petitioner obtained electricity connection and invested money in the shed. According to the petitioner, till 22-10-2008, the affairs of the society was managed by an elected body. But, later on, the managing committee was superseded for want of quorum and an administrator was appointed on 22-10-2008. The petitioner alleges mala fides on the part of the administrator in not conducting election to the managing committee of the society. He also refers to some proceedings in that regard initiated by the members of that society and a writ petition, namely W.P(C) No. 33937/2008 in which Ext. P4 judgment was passed by this Court. I am not referring to those facts because the same have no relevance to the issue involved in this writ petition. The petitioner's grievance in this writ petition is relating to Ext. P8 order dated 3-1-2009, whereby the shed allotted to the petitioner has been re-allotted to the 5th respondent herein. According to the petitioner, the allotment has been done hastily without complying with the procedure prescribed for the same in the “Rules for allotment of land and shed on hire purchase basis in the District Mini Industrial Estate Co-operative Societies.” The petitioner therefore seeks the following reliefs: W.P.C. No. 5905/2009 -: 2 :- “(i) Call for the records of the case from the office of the General Manager, District Industries Centre, Kollam. (ii) To issue a writ of certiorari or any other appropriate writ, order or direction to call for the resumption order dated 2-12- 2008 as evidenced by Ext. P7. (iii) To issue a writ of certiorari or any other appropriate writ, order or direction quashing the allotment made in favour of 5th respondent evidenced by Ext. P7. (iv) To issue a writ of mandamus or any other appropriate writ, order or direction directing him to produce before court the inventory of the articles found in the premises while taking over is resorted to him. (v) To issue any other appropriate writ, order or direction for granting him adequate compensation for the loss sustained him by the illegal action of the 2nd respondent.” 2. A counter affidavit has been filed by the 2nd respondent, wherein, it is stated thus: “4. It is true that the 2nd respondent has allotted shed No. 3 having an area of 900 sq. ft in the premises of Mini Industrial Estate, Kareepra in favour of the petitioner. The entrustment was made on the basis of an agreement dated 18-11-1999 executed between the Managing Director and the petitioner, strictly in compliance of the statutory provisions as set out in Rules for the allotment of land and shed for higher purchase in the District Mini Industrial Estate Co-operative Societies. The copy of the agreement dated 18-11-1999 is submitted herewith and marked as Exhibit. R2(a). It is also submitted that the agreement executed with the petitioner stipulates that the allottee should start the proposed Unit in the allotted shed within 6 months and that the monthly installments of hire purchase value should be remitted without fail. It was specifically provided that the General manager on his own in his capacity as the Registrar and is competent to direct the Managing Director of the Society to resume the shed allotted in the event of allottee defaulting in payment of two installments consecutively. It was also specifically provided that the allottee will be liable to be evicted if he fails to start the industry in the allotted place within a period of six months or keep the premises unoccupied for a period of six months. In this connection it is brought to the notice of this Hon'ble Court that the allotment in favour of the petitioner was made on 18.11.1999 and that the petitioner has not started functioning the unit even after the lapse of substantial period. As such a notice was issued by the Managing Director of the Society to the petitioner seeking an W.P.C. No. 5905/2009 -: 3 :- explanation for the non-occupation and intimating him that the immediate actions will be followed if the unit is not started within 7 days of notice. The copy of the notice dated 10.07.2000 is submitted herewith and marked as Exhibit-R2(b). The payment of defaulted installments also were directed to be regularized. 5. It is also submitted that in spite of service of subsequent notice on the petitioner on 6.11.2000, no explanation was given by him. As such another reminder was sent vide registered letter dated 9.02.2001 clarifying that if there is no response, the shed will be resumed by the Society. The copy of the said letter is submitted herewith and marked as Exhibit-R2(c). The said letter also received by the petitioner on 16.02.2001. Thereafter, the Managing Director of the Society issued another registered letter with acknowledgment due on 28-10-2000 intimating that if the petitioner do not respond within 7 days and the shed will be resumed without any further notice. The said letter was received by the petitioner on 08.11.2000. As already submitted in spite of service of the 3 registered communications the petitioner has not cared to give any kind of explanation of or to pay the installments due. As such the Co-operative Society started action to resume the shed on 14.01.2002 and requested the General Manager, District Industries Centre, Register of the Society to resume the shed No. 3 from the petitioner. Following the said request, the General Manager, District Industries Centre, Kollam has resumed the said shed vide order No. K-16/333/02 dated 3.04.2002 with direction to the Managing Director to take over the society and re-allotted to the new entrepreneurs. Copy of the said order which is produced and marked as Exhibit-R2(d), was communicated to the petitioner also. Even though the resumption order was issued on 3.04.2002, the petitioner has not challenged the resumption before any authority. On the other hand he submitted an application seeking 6 months time for starting the industry and to pay the installments due. As such the society vide its decision No. 45 on 7-11-2005 decided not to finalise the process of presumption of the shed till the month of December, 2005. Since there was no positive actions forthcoming from the petitioner's side was received, the shed was resumed on 13-02-2006 with the help of the police authorities. The copy of the mahazar prepared at the time of taking possession of the said shed is produced herewith and marked as Exhibit-R2(e). The shed is in the possession of the Society from 13.02.2006 onwards. Though the resumption order was passed on 03-04-2002. The possession of the shed was taken only on 13-02-2006. The petitioner approached the 2nd respondent on 17-02-2006 and requested to give back the shed to start a Steel Furniture Unit. This respondent had a discussion with him on 27-03-2006 wherein it was decided that the petitioner will be permitted to occupy the Shed only if he furnishes a project report along with consent letter issued by the financing bank. It was also directed that 50% of the defaulted amount should be paid on or before 15-05-06. Since there was no response from the petitioner the 2nd respondent vide order No. K-16/1083/06 dated 1-07-2006 informed the petitioner W.P.C. No. 5905/2009 -: 4 :- that if the unit is not started within 7 days, the resumption of the shed will be confirmed without further communication. True copy of the said communication dated 1-07-2006 is produced herewith and marked Exhibit-R2(f). Since no follow up action was taken by the petitioner the society decided to identify new entrepreneurs to occupy the unit. Thereafter, on 22-08.08, the petitioner again submitted a request stating that he wanted to start a hollow bricks manufacturing unit. The report collected from the Managing Director of the Society established that he had not taken any steps in spite of availing a number of chances and that his request is not genuine. The rejection of his new proposal was intimated to him vide letter dated 2-12-2008. True copy of the said letter is produced herewith and marked as Exhibit R2(g). 6. Since the shed was remaining unoccupied for long period which is against the very concept of establishment of industrial estate, a resolution was passed by the administrator for allotting the shed to new entrepreneurs after obtaining the approval from the 2nd respondent. Since the application submitted by the 5th respondent is pending from 14-08-2008 onwards his application was scrutinized along with the feasibility and viability reports of the project. Thereafter, a permission was granted by the 2nd respondent and the shed was allotted to the 5th respondent as per the proceedings dated 3-01-2009. True copy of the said proceeding is produced herewith and marked as Exhibit-R2(h). It is absolutely incorrect state that the allotment in favour of the 5th respondent was made in haste and it was made on a total negation of natural justice. A further allegation that the Administrator has exceeded authorities as the resumption was made without preparing and inventory. The claim made by the petitioner is without any bonafide. Having availed numerous opportunity under the guise of starting a new industry the petitioner cannot now turn around and find fault with the 1st & 2nd respondents and the Administrator. The petitioner has at no point of time fulfilled the promise of starting new industry or to pay the defaulted amount though sufficient opportunities have already been granted. There was no illegality or arbitrariness in allotting the shed in favour of the 5th respondent. It is also brought to the notice of this Hon'ble Court the 5th respondent has already started a small scale Industries Unit in shed allotted by the society. He has installed various machineries in connection with the industrial activities undertaken by him spending huge amount. The shed in dispute is not now available for occupation by the petitioner. As already submitted the shed was resumed and subsequently re-alloted in favour of the 5th respondent. The initial allotment, its resumption and subsequent re-allotment in favour of the 5th respondent are undertaken strictly in accordance with the rules for allotment of lands and shed on hire purchase basis in District Mini Industrial Estate Co-operative Societies. The writ petition is devoid of any merit and liable to be dismissed.” W.P.C. No. 5905/2009 -: 5 :- 3. The 4th respondent has also filed a counter affidavit in which the very same contentions as in the counter affidavit of the 2nd respondent. They have also stated that the petitioner has suppressed material facts insofar as in the writ petition there is absolutely no mention whatsoever regarding what happened between 1999 and 2008. 4. I have considered the rival contentions in detail. 5. The petitioner now does not dispute the facts as stated in the two counter affidavits of the 2nd and 4th respondents. Therefore, it is clear that the petitioner has not stated in the writ petition the pss taken against the petitioner, which have been detailed in the counter affidavits, which were clearly known to the petitioner as is evident from Ext. R4(c) letter submitted by the petitioner as also from the other documents produced by the 2nd respondent and the 4th respondent. Therefore, the petitioner was very much aware of the fact that as early as on 3-4-2003, the shed belonging to the petitioner was resumed by the 4th respondent for isolation of the conditions of allotment. But no action was taken pursuant to the same on an application filed by the petitioner seeking six months' time for starting the industry and to pay the arrears of instalments due. On the basis of that application, the society, on 7-11-2005, decided not to finalise the process of resumption of the shed till December, 2005. Since the petitioner did not do anything even thereafter, the shed was resumed on 13-2-2006 with the help of police. Thereafter, the shed was in the possession of the society. Even thereafter, the society did not take steps to re-allot the land in view of the request made by the petitioner on 17-2-2006, considering which the petitioner was given a further opportunity to produce a project report along with a consent letter issued by the financing bank with a further condition that the petitioner should pay 50% of the defaulted amount before 15-5-2006. W.P.C. No. 5905/2009 -: 6 :- The petitioner did not respond to the same even thereafter. Thereafter on 1-7-2006, the petitioner was informed that if the petitioner does not start the unit within seven days, the resumption of the shed would be confirmed without further communication. It is after this elaborate procedure that the resumption was finalised and even then the shed was allotted to the additional respondent only on 3-1-2009. The petitioner has not chosen to state all these facts, which were very much in his knowledge, in the writ petition. I am of opinion that that amounts to suppression of material facts and the writ petition is liable to be dismissed on that ground alone. Apart from that, admittedly after the allotment of the shed to the petitioner in 1999, the petitioner did not do anything to start a business. The petitioner had also isolated the terms of allotment since he had not paid the instalments due and therefore the 4th respondent 's action is perfectly valid and proper. The petitioner has also not challenged the orders of resumption. In view of the conduct of the petitioner, the petitioner has rendered himself disentitled to invoke the discretionary jurisdiction of this Court under Article 226 of the Constitution of India. Accordingly, the writ petition is dismissed. Although, because of the conduct of the petitioner, I was inclined to award exemplary costs, taking a lenient view, I refrain from doing so. Sd/- S. Siri Jagan, Judge. Tds/