IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 29TH JULY 2008 / 7TH SRAVANA 1930 WP(C).No. 15601 of 2005(G) --------------------------------------- PETITIONER: ------------------ K.S. SANJEEV, AGED 42, S/O. C.V.SUSEELAN MANAGING PARTNER, M/S. KONCHERRY FACTORIES, MAYITHARA MARKET P.O., CHERTHALA, RESIDING AT SHAJI BHAVAN, CHERTHALA. BY ADV. SRI.R.HARIKRISHNAN SRI.SUDHEENDRAN. K.Y. SRI.N.ASOK KUMAR SMT.A.SINDHULEKSHMY RESPONDENTS: ---------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, INDUSTRIES DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. MANAGING DIRECTOR, KERALA INDUSTRIAL INFRASTRUCTURE DEVELOPMENT CORPORATION, KINFRA HOUSE, SASTHA MANGALAM P.O., TRIVANDRUM-10. 3. MANAGING DIRECTOR, KINFRA EXPORT PROMOTIONAL INDUSTRIAL PARKS LTD., KUSUMAGIRI P.O., KAKKANAD, KOCHI-30. * ADDL. R4 IMPLEADED ADDL. R4: INFOPARK, THAPSYA, KUSUMAGIRI.P.O., KAKKANAD, KOCHI-682 030, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, K.G.GIRISH BABU. * ADDL. R4 IS IMPLEADED AS PER ORDER DATED 29/07/2008 IN I.A. 14139/2005. GOVERNMENT PLEADER SRI.SANDESH RAJA FOR R1 ADV. SRI.A.M.SHAFFIQUE (SR.) FOR R2, R3 SRI.E.K.NANDAKUMAR FOR R2, R3 SRI.A.K.JAYASANKAR NAMBIAR FOR R2, R3 SMT.PRIYA MAHESH FOR R2, R3 SRI.P.A.AHAMED, SC, INFOPARKS FOR ADL.R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/07/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).15601/2005-G APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE LETTER DATED 28/01/2003 ISSUED BY THE 3RD RESPONDENT. EXT.P2: COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT DATED 28/01/2003. EXT.P3: COPY OF THE LETTER DATED 23/02/2005 ISSUED BY THE 2ND RESPONDENT. EXT.P4: COPY OF THE REPRESENTATION DATED 03/03/2005 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P4(a): COPY OF POSTAL RECEIPT SHOWING THE ISSUANCE OF P4. EXT.P5: COPY OF THE REPRESENTATION DATED 07/03/2005 SUBMITTED BY THE PETITIONER TO THE FIRST RESPONDENT. EXT.P6: COPY OF THE REPRESENTATION DATED 15/03/2005 SUBMITTED TO THE CHIEF MINISTER OF KERALA BY THE PETITIONER. EXT.P6(a): COPY OF ACKNOWLEDGEMENT OF EXHIBIT P6. RESPONDENT'S EXHIBITS: EXT.R4(a): COPY OF THE ORDER DATED 10/05/2005, G.O.(MS)NO.46/2005/ID. EXT.R2(a): COPY OF THE LETTER OF INTIMATION DATED 14/12/2002, NO.KEPIP/ALLOT/880/2002. EXT.R2(b): COPY OF THE APPLICATION FOR ALLOTMENT IN FORM C DATED 13/01/2003. EXT.R2(c): COPY OF THE LECENCE AGREEMENT WITH THE 2ND RESPONDENT ON 22/02/2003 WITH ANNEXURE. EXT.R2(d): COPY OF THE LETTER 02/09/03 NO.KEPIP/KOCHERRY/935/2003. EXT.R2(e): COPY OF THE LETTER DATED 04/12/03 NO.KEPIP/CONCHERRY/1190/2003. EXT.R2(f): COPY OF THE LETTER DATED 29/12/03 ISSUED BY THE PETITIONER TO THE RESPONDENT. EXT.R2(g): COPY OF THE LETTER DATED 16/01/2004 NO.KEPIP/ALLOT/74/2003. // TRUE COPY // Rs/ P.N.Ravindran, J. ================ W.P(C).No.15601 of 2005 ===================== Dated this the 29th day of July, 2008. JUDGMENT The petitioner is the Managing Partner of a partnership firm engaged in the business of manufacture, purchase, sale and export of coir and coir products. A parcel of land, 5.6086 acres in extent, situated in Kinfra Export Promotion Industrial Parks at Kakkanad was allotted to the petitioner on the terms and conditions stipulated in Ext.R2(a) letter dated 14.12.2002. The petitioner accepted the said offer. Pursuant thereto, Ext.R2(c) licence agreement was entered into between the petitioner on the one side and the third respondent on the other. As per Ext.R2(c) licence agreement, the petitioner had to pay besides the licence fee, various amounts as premium, earnest money deposit, etc. Ext.R2(c) states that the petitioner has already paid a total amount of Rs.27,00,000/-. As per Ext.R2(c), the balance premium has to be paid in seven equal yearly instalments with interest at 14% per annum from 22.2.2003 till date of payment. The first such instalment was to be paid on 21.2.2004. The second schedule to Ext.R2(c) stipulates that the licensee shall submit applications for WP(C) 15601/05 -: 2 :- permission to construct buildings within a maximum period of three months from 22.3.2003, commence construction of the buildings within 8 months therefrom, complete the installlation of plant and machinery within 20 months therefrom and commence commercial production within 24 months therefrom. Paragraph 4 of Ext.R2(c) reads as follows: "(4) If the Licensee makes default in the payment of the License fee, Premium and/or interest as provided hereinbefore or does not complete the construction of the building and commence production in the establishment within the period of the first two years of the License or extension thereof or commits any other breach of the provisions of this Deed, the Licensor shall be entitled to revoke this Agreement, and the Licensee shall therefore forfeit all his rights hereunder and shall remain liable for any sum then due by him and also for any loss which may be caused to the Licensor by reason of such default and in such an event the amount paid towards premium referred to above will be refundable to the Licensee without interest but after deducting any amounts due to the Licensor from the Licensee." According to the third respondent, the petitioner was not vigilant in carrying out his obligations under the licence agreement. Therefore, Ext.R2(d) letter dated 2.9.2003, Ext.R2(e) letter dated 4.12.2003 and Ext.R2(g) letter dated 16.1.2004 were sent to him reminding him of WP(C) 15601/05 -: 3 :- his obligations under the licence agreement, and the consequences that would follow if he does not fullfil them. 2. While matters stood thus, the Board of Directors of the third respondent that met on 11.1.2005 resolved to transfer 11.9 acres of land held by Kinfra Export Promotional Industrial Parks, Kakkanad to the Kerala State IT Mission as decided by the Government of Kerala. In terms of the said decision, Ext.P3 notice was sent to the petitioner informing him that the Board has decided to revoke the allotment of 5.6086 acres of land to him and to refund the premium received from him in respect of the said land. The petitioner has in this Writ Petition challenged Ext.P3 and prayed for a writ in the nature of mandamus commanding respondents 1 to 3 to give possession of the said lands to him. 3. I have heard Sri. R.Harikrishnan, the learned counsel appearing for the petitioner, Sri.K.Sandesh Raja, the learned Government Pleader appearing for the first respondent, Sri. A.K.Jayasankar Nambiar, the learned counsel appearing for respondents 2 and 3 and Sri.P.A. Ahamed, the learned Standing Counsel appearing for the additional fourth respondent. 4. The Writ Petition proceeds on the basis that possession of the land described in Ext.R2(a) licence agreement has not been delivered WP(C) 15601/05 -: 4 :- over to the petitioner. The petitioner's grievance is that since possession was not handed over, he has not been able to adhere to the schedule for completion of the factory building and commencement of commercial production. On the other hand, respondents 2 and 3 would contend that though the petitioner had the right to enter upon the land for the construction of the building, he was negligent in putting up building, completing the construction and in discharging his part of the obligation. 5. After hearing the learned counsel on either side, I am of the opinion that in view of the developments that have taken place on and after 11.1.2005, the petitioner cannot seek any of the reliefs prayed for in this Writ Petition. As noticed earlier, the Board of Directors of the Kinfra Export Promotional Industrial Parks has in the light of the request made by the Government of Kerala decided to transfer 11.9 acres of land held by the Kinfra Export Promotion Industrial Parks, Kakkanad including the lands described in Ext.R2(c) to the Kerala IT Mission. The petitioner was informed of the said decision by Ext.P3. In view of the said decision, which is reflected in Ext.P3 public interest involved, the petitioner cannot claim or be granted the reliefs sought for in the Writ Petition. The petitioner can at best seek only repayment of the premium paid by him, subject to the conditions WP(C) 15601/05 -: 5 :- stipulated in paragraph 4 of Ext.R2(c) extracted above. Ext.P3 also states that the third respondent will be taking steps to refund the premium paid by the petitioner in respect of the land allotted to him. In the light of the offer made in Ext.P3 while dismissing the Writ Petition, I direct the third respondent to refund to the petitioner the premium received from him after adjusting the amounts if any due from him in terms of paragraph 4 of Ext.R2(c). Computation of the amount if any payable by the petitioner to the third respondent shall be made with notice to him within one month from the date of receipt of a copy of this judgment and after such determination, the amount repayable to the petitioner shall be paid within two months thereafter. P.N.Ravindran, Judge. ess 31/7