IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 28TH OCTOBER 2008 / 6TH KARTHIKA 1930 OP.No. 2204 of 1998(K) ---------------------- PETITIONER(S): --------------- P. JAYAPRAKASH, ERAYIL HOUSE, THURAVOOR P.O., CHERTHALA, NOW RESIDING AT 8/49/E, FIRST STAGE, INDIRA NAGAR, BANGALORE 560 038. BY ADV. SRI.K.P.DANDAPANI (SR.) RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY SECRETARY TO INDUSTRIES DEPARTMENT, INDUSTRIAL RURAL INDUSTRIES PROJECT, ALAPPUZHA, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF INDUSTRIES AND COMMERCE, INDUSTRIES (B) DEPARTMENT, GOVT. OF KERALA, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.M.R. SABU. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 28/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 2204/98. ----------------------------------------------------------- EXT.P1 COMMUNICATION DT. 28-8-1971. EXT.P2 COMMUNICATION DT. 28-4-1972. EXT.P3 CERTIFICATE DT. 17-4-1997. EXT.P4 REPRESENTATION DT. 28-12-1997. RESPONDENTS' EXHIBITS: ------------------------------------- EXT.R2(a) AGREEMENT DT. 31-8-1972. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 2204 of 1998 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 28th October, 2008. J U D G M E N T The petitioner, while he was an unemployed engineer, availed of the facility offered by the Government for handing over a Common Facility Service Centre for Blacksmithy at Eramaloor pursuant to which by Ext. P1 Government Order, the Government agreed in principle to hand over the Common Facility Service Centre for Blacksmithy at Eramaloor to the petitioner. Pursuant thereto, Ext. P2 Government Order was passed provisionally fixing the value of the land, building and machinery as well as furniture as Rs. 45,184.43. By Ext. P2, it was decided to hand over the land, building and machinery to the petitioner on the petitioner remitting an amount of Rs. 2500/- as advance, leaving the balance to be paid later after finalising the value. Accordingly, the Centre was handed over to the petitioner. The petitioner would contend that as evidenced by Ext. P3, the petitioner had paid the entire amounts payable by the petitioner in respect of the Centre and therefore he became the absolute owner of the Centre. According to the petitioner, due to circumstances beyond his control, he had to temporarily suspend the functioning of the Centre for some years as he was out of station. After coming back, the petitioner is stated to have approached the Government for execution of appropriate documents for transfer of title and to give effective possession of the unit to the petitioner. As there was no response from the Government, the petitioner has approached this Court seeking the following relief: “Issue a writ of mandamus or any other appropriate writ,m order or direction commanding the respondents to effect the transfer in accordance with law and put the petitioner in effective possession of the land, buildings and machinery in the common facilities service centre for blacksmithy, Erameloor, Cherthala.” 2. The contention raised by the petitioner is that on payment of O.P. No. 2204/1998 -: 2 :- the entire amounts due under the agreement executed for the purpose, the Government is duty bound to transfer the title over the unit to the petitioner. 3. A counter affidavit has been filed by the 2nd respondent, wherein the respondents refuted the right of the petitioner for the relief prayed for. According to them, the unit has been handed over to the petitioner not absolutely to do whatever he pleases with the Centre, but it was handed over to the petitioner specifically for running it. Therefore, the petitioner can continue to be in possession and ownership of the same only if the petitioner continues to run it notwithstanding the fact that the petitioner has paid the amounts due under the agreement. According to them, as admitted by the petitioner himself, for some years, the unit was closed down even violating the terms and conditions of the agreement. It is pointed out that in clause 10 of Ext. R2(a) governing the issue, if the petitioner commits breach of any of the provisions of the agreement, he is bound to surrender possession of the unit to the Government immediately on demand and the Government shall have power to deal with the said Unit in any manner they deem fit. In case the petitioner fails to surrender the Unit when demanded, the petitioner would be considered as a trespasser liable to be proceeded against and evicted under the provisions of the Land Conservancy Act for the time being in force. It is therefore submitted on behalf of the respondents by the Government Pleader that when admittedly the petitioner has violated the terms and conditions of the agreement, he loses all his right under the agreement and as a result, he cannot validly demand that the Government is entitled to comply with their part of the agreement by transferring title in respect of the Unit to the petitioner. 4. I have considered the rival contentions in detail. O.P. No. 2204/1998 -: 3 :- 5. As is clear from Ext. P1, the transaction is not a mere conveyance of the property, building and machinery constituting the Common Facility Service Centre. The transaction is governed by other Government Orders, namely, G.O.MS.817/63/ID dated 21-11- 1963 as modified by G.O.MS.302/67/ID dated 31-8-1967 as is clear from Ext. P1 Government Order itself. The handing over is as per a scheme formulated by the Government for handing over departmentally run production centres, commercial Schemes, Common Facility service centres and Training Centres under the Rural Development Programmes to private parties. That being so, the intention behind such handing over is not merely to let persons like the petitioner have the unit absolutely to himself, but is specifically for the purpose of continuing to run it for the benefit of the society as a whole. Therefore, the petitioner continues to have the right to hold on to the same only if he continues to run the Common Facility Service Centre as envisaged by the scheme. Any other interpretation would defeat the very purpose of the scheme itself. The petitioner himself admits that he could not run the Centre for years together. Therefore, by the failure on the part of the petitioner in running the Common Facility Service Centre as envisaged by the Government, the petitioner has violated the terms and conditions of the agreement executed by him with the Government. As I have said, the intention behind this handing over is not merely for the petitioner to get title over the properties, building and machinery, but to enable the petitioner to run the Common Facility Service Centre for the betterment of the society as a whole. The petitioner has sadly failed to honour the terms and conditions of the privilege vested with him. It is even admitted before me that some parties have encroached into the property in question and the petitioner has lost control over the O.P. No. 2204/1998 -: 4 :- property even. In the above circumstances, the very object of handing over the Common Facility Service Centre to the petitioner has been completely defeated. The fact that the petitioner wants a direction to the respondents to put him in effective possession of the land itself shows that the petitioner has lost possession of the property. Under the agreement the petitioner is duty bound to keep the unit in proper maintenance, repair and working order, which also he has failed to do. That being so, I am not satisfied that the petitioner is entitled to the relief prayed for in this original petition. Therefore, I decline to exercise my discretionary jurisdiction in favour of the petitioner. Accordingly, the original petition is dismissed. S. Siri Jagan, Judge. Tds/