IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 WP(C).No. 32768 of 2004(A) -------------------------- PETITIONER(S): --------------- C.SASINDRAN, CC 33/2481, VYTTILA BYE PASS ROAD, CHAKKARAPARAMBU, COCHIN-682 032. BY ADV. SRI.K.T.SHYAMKUMAR RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY, DEPARTMENT OF INDUSTRIES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF INDUSTRIES & COMMERCE, VIKAS BHAVAN, THIRUVANANTHAPURAM. 3. THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, KASARGOD. BY SRI. KA SANIL KUMAR, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jma APPENDIX Petitioners Exhibits: Ext.P1: True copy of the order dated 6.11.1998 issued by the 3rd respondent allotting the land to the Petitioner. Ext.P2: True copy of the letter dated 1.1.1997 issued by the 3rd respondent to the KSEB. Ext.P3: True copy of the certificated dated 11.3.1997 issued by the 3rd respondent. Ext.P4: True copy of the order dated 31.12.1999 issued by the 3rd respondent. Ext.P5: True copy of The G.O.(Ms).No. 297/70/ID dated 24.8.1970 issued by the Industries Department. Ext.P6: True copy of the representation dated 31.1.2001 filed by the Petitioner before respondents one and two. Ext.P7: True copy of the letter dated 30.7.2001 issued by 3rd respondent to the 2nd respondent. Ext.P8: True copy of the representation dated 11.7.2003 filed by the Petitioner before the 2nd respondent. Ext.P9: True copy of the letter dated 4.3.2005 issued by the 3rd Respondent. Ext.P10: True copy of the letter dated 8.4.2005 issued by the 3rd Respondent. Ext.P11: True copy of the letter dated 7.5.2005 issued by the Petitioner to the 3rd Respondent. Ext.P12: True copy of G.O.(RT) No.124/05/ID dated 15.2..2005 /True copy/ P.A. To Judge jma C.K.ABDUL REHIM, J. ------------------- W.P(C)NO.32768 OF 2004 -------------------------- Dated this the 25th day of June 2009 ------------------------------------- JUDGMENT The petitioner was the allottee of 50 cents of land in the Industrial Development Area at Ananthapuram in Kasargod district. As part of setting up the industry in the said land, he constructed a Store Room with RCC roof and dug a Bore Well of 250 Feet depth. But due to severe scarcity of water, which is needed in large quantity for running the proposed industrial unit, the project became unworkable. The land was resumed consequent to non-setting up of the industry, as per Ext.P4 order of the third respondent. W.P(C)No. 32768/2004 2 2. According to the petitioner, on resumption of the land he is entitled for getting value of improvements effected in the land, along with refund of cost of land paid by him. Clause 15(a) of Ext.P5 Government Order governing Rules of allotment, which is relevant on the issue, is extracted below. “ 15. In case of resumption the following procedure shall be adopted. (a) If the allottee has made any improvement on the land without mortgaging such improvement to any financial institution, he shall be paid compensation for such improvement based on the valuation made by competent authority after deducting all amounts due to Government. Provided that instead of paying the value of the improvement it shall be open to the Director of Industries & Commerce to W.P(C)No. 32768/2004 3 direct the allottee to remove any of the improvement within such time as may be specified at the cost of the allottee and if he fails to do so, the Director of Industries & Commerce may arrange the same to be removed at the cost of the allottee and dispose of the materials by public auction. If the proceeds of such disposals are in excess of the amount due to Government from the allottee, such excess amount shall be paid to the allottee, if even after adjustment of the amount thus calculated further amount are due from the allottee, the same shall be recovered from him as if they were arrears of land revenue.” 3) The improvements had cost an amount of Rs.2,95,300/-, according to the petitioner. W.P(C)No. 32768/2004 4 Therefore Ext.P6 request was submitted for refund of the said amount, along with cost of land deposited by him, totaling to an amount of Rs.3,06,650/-. Through Ext.P7 letter the third respondent had informed the second respondent that, valuation of the improvements was already conducted through authorities of the PWD, Building Section, and the District officer of the Ground Water Department of the State Government. The total amount due for refund was calculated, adding cost of improvements to the cost of land already deposited, after deducting interest due on resumption at the rate of 6%. The second respondent was requested to accord sanction for effecting refund of the amount Rs.1,34,481/-. But the matter was kept pending indefinitely without effecting refund, inspite of Ext.P8 representation submitted to the first respondent on 11/07/2003. Hence the writ petition W.P(C)No. 32768/2004 5 was filed seeking directions for payment of the amount. 4) As per Interim Order of this court dated 08/02/2005, the first respondent was directed to take a decision on Ext.P8 within one month, taking note of the recommendation for refund issued by the third respondent as per Ext.P7. But without mentioning about the interim order, the petitioner was issued with two letters of the third respondent, Ext.P9 and Ext.P10, directing demolition of the construction made in the land, and also requesting to find out a party who is willing to take the land along with the improvements, in order to collect the cost of improvements from such party. The petitioner replied through Ext.P11 pointing out the interim order and pendency of the writ petition. But, the first respondent issued Ext.P12 order, purported to be in compliance with the interim direction, informing that the petitioner is allowed W.P(C)No. 32768/2004 6 to remove all improvements as stipulated in the proviso to Rule 18 of G.O(MS) 169/1969/ID dated 05/04/1969. In Ext.P12 it is stated that, the petitioner is permitted to take the 'Motor' and other fittings of the Bore Well, since the digging of the Bore Well has not yielded in availability of sufficient water. In Ext.P12 the amount due for refund is re-fixed as Rs.9,393/-, being the amount remitted towards the cost of land, after deducting resumption interest. The petitioner is also challenging Ext.P12, through amendment brought into the writ petition. 5) Heard the learned counsel appearing for the petitioner and the learned Government Pleader. In the counter affidavit it is admitted that the Rules governing allotment is Ext.P5. But Ext.P12 order refers to another Government Order, issued in the year 1969. Contention in support of Ext.P12 is based on Rule 15(a) of Ext.P5 (extracted above). W.P(C)No. 32768/2004 7 According to the respondents, the amount due for refund is fixed in Ext.P12 based on the fact that there is refusal on the part of the petitioner to remove the improvements, and such an action is perfectly justifiable under Rule 15(a). It is further stated that the value of improvements could not be given because, no applicant for the land in question is available to take the land along with the improvements. With respect to Ext.P7 it is contented that the second respondent who is the competent authority, had never held that the petitioner is entitled to get refund for the value of improvements. 6) The legality and correctness of Ext.P12 need be tested on the basis of Rule 15(a) of Ext.P5, since it is admitted in the counter affidavit that the relevant Rules are Ext.P5. As per Rule 15(a) (extracted above) the allottee is entitled to get compensation for improvements based on the valuation W.P(C)No. 32768/2004 8 to be made by the competent authority. But an option is given to the second respondent to direct the allottee to remove any such improvements, instead of paying the value of the improvements. It is clear that the option for permitting removal of improvements is provided only only as an alternative, 'instead of paying the value'. Therefore it is clear that the primary obligation is to make good the value of improvements. But each payment can be made directly or by permitting removal of the improvements. In this case it is evident that the respondents had already taken steps in accordance with Clause 15(a) for paying value of the improvements. No cogent reason is forthcoming as to why a deviation from the steps already initiated was adopted. It is clear that such a deviation was proposed only after passing of interim order by this court. Therefore the action need be tested on the basis as to whether it can be considered as an alternative of paying value of the W.P(C)No. 32768/2004 9 improvements. Considering the fact that the improvements are only RCC roofed shed and Bore Well, it is clear that its removal will not fetch any value to the petitioner, and the direction for such removal cannot be considered as an alternative for payment of its value. Therefore I am inclined to hold that Ext.P12 is not in compliance with Rule 15(a) of Ext.P5, and hence it is not sustainable. 7) But in the circumstances of the case it is necessary that, the question as to whether the construction of the shed and digging of the Bore Well is an improvement on the land, need be decided based on factual finding as to whether such works had in any way improved either the quality or the utility of the land. Such a decision need be taken by the competent authority and the valuation need to be fixed taking note of state of improvements as on the date of the resumption, considering all aspects like depreciation etc. Under the above W.P(C)No. 32768/2004 10 circumstances a fresh decision in the matter by the second respondent is necessary. 8) In the result Ext.P12 is hereby quashed. The second respondent is directed to take a fresh decision with respect to fixation of value of the improvements contained in the land resumed from the petitioner, after affording an opportunity of personal hearing to him, taking note of the observations made above and further to effect payment of amount so determined, at the earliest, at any rate within three months from the date of receipt of a copy of the judgment. Sd/- C.K.ABDUL REHIM, JUDGE //TRUE COPY// P.A TO JUDGE vdv