IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 WP(C).No. 28028 of 2007(J) ------------------------------------- PETITIONER(S): ---------------------- FR.THOMAS, S/O.FR.MATHEWS, AGED 79 YEARS PAZHAYIDAM HOUSE,VAZHAVATTA P.O., MUTTIL AMSOM DESOM, MUTTIL SOUTH, VYTHIRI TALUK, WAYANADU DISTRICT. BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) RESPONDENT(S): ------------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRERTARY TO GOVERNMENT, INDUSTRIES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTER, WAYANADU. 3. THE DISTRICT COLLECTOR, WAYANADU. 4. THE DEPUTY TAHSILDAR (R.R.), VYTHIRI, WAYANADU. 5. THE VILLAGE OFFICER, MUTTIL SOUTH, VYTHIRI TALUK, WAYANADU DT. *6. THE DIRECTOR OF INDUSTRIES, TRIVANDRUM. (*SUO MOTO IMPLEADED AS ADDL. 6TH RESPONDENT IN THE WRIT PETITION AS PER THE JUDGMENT, DATED 8.6.09) BY ADV.SRI.V.K.SHAMSUDHEEN, GOVERNMENT PLEADER FOR R1 TO R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/06/2009. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 28028 of 2007 A P P E N D I X EXHIBITS FOR THE PETITIONER :- EXT.P1 : COPY OF THE RECEIPT PASSED BY THE LAND LORD, SRI.ABDULLA KALLANKODAN, TO THE PETITIONER DATED 15.4.2002. EXT.P2 : COPY OF THE AGREEMENT EXECUTED BETWEEN THE PETITIONER AND SRI.JOSE PERAVOOR DATED 20.4.1993. EXT.P3 : COPY OF THE SHOW CAUSE NOTICE NO.D 256/97 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DATED 6.10.2001. EXT.P4 : COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 17.10.2001. EXT.P5 : COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 14.4.2002. EXT.P6 : COPY OF THE DEMAND NOTICE INFORM NO.10 UNDER SECTION 33 OF THE R.R.ACT WITH NO.D2-21/02-03/OM ISSUED TO THE PETITIONER BY THE 4TH RESPONDENT DATED NIL. EXT.P7 : COPY OF THE DEMAND NOTICE INFORM NO.10 UNDER SECTION 7 OF THE R.R.ACT WITH NO.D2-21/02-03/OM ISSUED TO THE PETITIONER BY THE 4TH RESPONDENT DATED 6.4.2002. EXT.P8 : COPY OF THE OBJECTION UNDER SECTION 34 OF THE R.R.ACT FILED BY THE PETITIONER TO THE 3RD RESPONDENT DATED 19.4.2002. EXT.P9 : COPY OF THE JUDGMENT IN O.P.NO.11104/2002 PASSED BY THE HON`BLE HIGH COURT OF KERALA DATED 7.12.2006. EXT.P10 : COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT DATED 4.7.2007. EXT.P11 : COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DATED 5.9.2007. EXT.P12 : COPY OF THE UNDATED NOTICE ISSUED BY THE VILLAGE OFFICER, MUTTIL SOUTH TO THE PETITIONER. EXT.P13 : COPY OF THE RECEIPT ISSUED FROM THE KALPETTA MUNICIPALITY DATED 19.8.1991. EXT.P13(a):COPY OF THE RECEIPT ISSUED FROM THE KALPETTA MUNICIPALITY DATED 22.2.1991. EXT.P13(b):COPY OF THE RECEIPT ISSUED FROM THE KALPETTA MUNICIPALITY DATED 29.2.1992. EXT.P13(c):COPY OF THE RECEIPT ISSUED FROM THE KALPETTA MUNICIPALITY DATED 6.10.1992. WP(C).No. 28028 of 2007 EXT.P14 : COPY OF THE CERTIFICATE ISSUED BY TH ACCOUNTS OFFICER (T.R.II) DATED 13.5.2004. EXT.P15 : COPY OF THE REPORT ISSUED BY THE ASSISTANT DISTRICT INDUSTRIES OFFICER TO THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, WAYANAD, DATED 16.09.1991. EXHIBITS FOR THE RESPONDENTS : NIL. //TRUE COPY// P.A.TO JUDGE an. P.R.RAMACHANDRA MENON, J. --------------------------- W.P.(C) No.28028 OF 2007 -------------------------- Dated this the 8th day of June, 2009 J U D G M E N T ~~~~~~~~~~~ The petitioner is challenging Exts.P10 and P11 orders passed by the 2nd respondent, whereby recovery steps were taken against the petitioner for realisation of the subsidy given to him, stating that the petitioner's unit was not in existence for 5 years as stipulated. The main grievance of the petitioner is that the said orders having been passed by the very same officer, (who was earlier holding the post of then Assistant District Industries Officer), who submitted Ext.P15 report, on the basis of which, Ext.P3 was passed ordering recovery for the first time, are not correct or sustainable. 2. With regard to the sequence of events, it has to be noted that, the petitioner started an SSI unit under the name and style as `M/s.Focus Photostat Kalpetta' on 15.11.1986. Subsequently, on the basis of the terms prescribed, a sum of Rs.56,853/- was granted to the petitioner by way of `investment W.P.(C) No.28028 OF 2007 2 subsidy'. However, after running the unit for a few years, because of the adverse circumstances in the market and due to such other reasons, the petitioner was constrained to close down the business and accordingly, the shutter was pulled down on 30.04.1993. This was followed by surrendering the premises taken on rent, to the landlord as evident from Ext.P1. 3. While so, after about 8 years of closing down the unit, the 2nd respondent issued Ext.P3 show-cause notice to the petitioner, inviting the objections, if any, in not remitting back the subsidy availed by him, since the unit was not in existence for a minimum period of `5 years' as stipulated under the scheme. Ext.P3 show cause notice was issued on the basis of the report dated 16.09.1991 of the Industries Officer, Vythiri Taluk. 4. It is the case of the petitioner that pursuant to Ext.P3, he has submitted Exts.P4 and P5 objections. However, without any regard to the same, the respondents proceeded with the Revenue Recovery steps and issued Exts.P6 and P7 notices. The petitioner also submitted Ext.P8 objections in response to W.P.(C) No.28028 OF 2007 3 the notice and approached this Court by filing O.P.No.11104/2002, which culminated in Ext.P9 judgment. As obvious from Ext.P9, the only reason stated for not considering the objections preferred by the petitioner, was that the Revenue Recovery proceedings had already been initiated. In the said circumstances, the impugned proceedings were set aside by this Court and the matter was directed to be reconsidered, observing that all coercive steps would stand deferred till final orders were passed as aforesaid. Pursuant to the above verdict, the 2nd respondent passed Exts.P10 and P11 orders reiterating the stand taken already, observing that the petitioner is not entitled to evade repayment of the subsidy, for the reason that the unit did not function for 5 years and that the petitioner failed to produce requisite evidence to prove it otherwise for availing the benefit of subsidy (Ext.P11). In Ext.P10 order issued to the concerned Tahasildar, it is observed that the documents produced by the petitioner through his representative were not acceptable and hence the request was turned down; W.P.(C) No.28028 OF 2007 4 simultaneously directing the Tahasildar to proceed with the Revenue Recovery steps. This in turn led to Ext.P12 demand notice, which made the petitioner to approach this Court by filing the present writ petition. 5. The learned counsel for the petitioner submits that the establishment of the petitioner was very much in existence for more than 5 years and that the petitioner is very much entitled to get the benefit of subsidy. Ext.P13 series pertain to the tax remitted by the petitioner to the concerned local authorities towards the provisional tax for the years 1991-92 and 1993-94. Ext.P14 is a copy of the certificate issued by the accounts officer (T.R.II) dated 13.5.2004 in respect of the telephone connection provided to the petitioner. The learned counsel for the petitioner submits that the said documents were produced before the 2nd respondent at the time of hearing which however were not properly adverted to. The petitioner also submits that the books of accounts of the petitioner's unit were not available with him, particularly when the show-cause notice was admittedly issued W.P.(C) No.28028 OF 2007 5 after 8 years of closing down the unit. It is the case of the petitioner that in any event, the documents, Exts.P13 series and P14, were more than enough to substantiate the position as to the existence of the petitioner's unit for more than 5 years. 6. The 3rd respondent alone has filed a counter affidavit which only pertains to the steps taken under the Revenue Recovery Act. The specific grievance raised by the petitioner has not been rebutted by filing any counter affidavit, by the 2nd respondent. This is more so, when the petitioner is stated as much aggrieved because of the impugned orders, Exts.P10 and P11, which were passed by the very same officer who submitted Ext.P15 report which formed the basis for issuance of Ext.P13 show-cause notice and as such, the said officer could not have been expected to render a different finding, ignoring his own report, though submitted without any legal or factual basis. 7. After considering the facts and figures, this court finds it fit and proper, that the matter be considered by an authority W.P.(C) No.28028 OF 2007 6 at a higher level. The learned Government Pleader submits the matter will be considered by the Director of Industries, Trivandrum. In the said circumstances, the petitioner is directed to project his grievances by filing an appropriate representation along with the copies of the relevant testimonials before the Director of Industries, Trivandrum within two weeks and on such event, the same shall be considered and appropriate orders shall be passed by the Director, after giving an opportunity of hearing to the petitioner, within two months from the date of receipt of the aforesaid representation. It is made clear that the Revenue Recovery proceedings initiated against the petitioner shall be kept in abeyance, till such final orders are passed as above. 8. In view of the direction already given, the Director of Industries, Trivandrum, is `suo moto' impleaded as the additional 6th respondent and the learned Government Pleader has entered appearance on his behalf. It is made clear that the opportunity of hearing can be availed by the petitioner, by sending a W.P.(C) No.28028 OF 2007 7 representative to present the matter before the additional 6th respondent; he being a person having crossed the age of 80 years and stated as unable to move about freely. The matter is disposed of accordingly. P.R.RAMACHANDRA MENON, JUDGE an.