KOMALAKUMAR Vs. STATE OF KERALA AND OTHERS

JUDGEMENT

(1.) This appeal is directed against the impugned judgment and decree dated 07-09-2004 rendered in Appeal Suit, A.S.No.225/ 2000 by the District Court, Palakkad, which has affirmed the impugned judgment and decree dated 28-02-2000 in Original Suit, O.S.No. 410/1994 of the Munsiff's Court, Palakkad. The suit was for injunction, which was dismissed by the trial court on 28- 02-2000, which in turn has been affirmed by the impugned verdict of the lower appellate court. So it is against the concurrent findings by both the courts below that the plaintiff has instituted the aforecaptioned Regular Second Appeal.

(2.) The case set up by the plaintiff is as follows:- That he is conducting the business of steel furniture and other fabrication works in the name and style, "Ramco Engineering Works", which has been registered as a Small Scale Industrial Unit (SSI Unit). The plaint schedule property, having an extend of 37 cents of land, is part of the property acquired by the Government for industrialisation and has been alloted to the plaintiff as per Ext.A-1 dated 11-12-1984 issued by the 3rd defendant-General Manager, District Industries Centre, Palakkad. Later, Ext.A-3 hire purchase agreement dated 21-12-1984 was entered into between the plaintiff and the 1st defendant in respect of the aforesaid land allotted to the plaintiff for setting up an industrial unit. That the plaintiff had paid initial sum of Rs.2,000/- and he was to pay a balance sum of Rs.7,425/- in annual instalments within a period of ten years along with interest @ 6.5% per annum. That the plaintiff secured possession of the aforesaid property on 31-12-1984 and he constructed a building in the property and has been using the same for the purpose of running his fabrication unit. That though he was ready and willing to pay the balance instalments, which fell in arrears, the 3rd defendant's office had refused to accept the same tendered by him, by demanding a larger amount than what was due. By Ext.A-4 dated 30-09-1985, the 3rd defendant had permitted the plaintiff to mortgage the superstructure built on the aforesaid land, to the Kerala State Financial Corporation for availing a loan for the purpose of running the industrial unit. As per Ext.A-5 letter dated 11-08-1993, the 3rd defendant had informed the plaintiff that he has to remit Rs.11,300/- towards cost of the land and interest thereon, within 15 days from date of receipt of the said letter dated 11-08-1993, failing which action will be taken to receive the land. By Ext.A-7 letter dated 26-10-1993, the 3rd defendant again reminded the plaintiff to remit the aforesaid amount of Rs.11,300/- (within ten days). That no follow up action was taken by the defendants for resumption of the land on the ground of non-payment of the aforestated amount as referred to in Exts.A-5 and A-7. Later the 3rd defendant issued Ext.A-6 letter dated 09-02-1994 stating that on inspection of the unit, it was found that its built up area comes only to 646 sq.feet and that as such, the plaintiff is eligible to get only 9 cents of land. Further that the plaintiff has not remitted the first instalment towards the hire purchase dues and that considering the lay out of the land and the location of the existing unit, the plaintiff is allowed to retain only 12 cents of land and that by limiting the extent of land by 12 cents, the plaintiff was requested to surrender to the Department the balance 25 cents out of the total 37 cents earlier allotted, etc. In reply to Ext.A-6 dated 9-2-1994, the plaintiff sent Ext.A-8 letter dated 22-09- 1994 pointing out that his unit is engaged in heavy structural fabrication and hence apart from the building constructed in the land, he requires extensive vast and open area for running of his fabrication unit and that the work is being done in open space. That the building is used only for storing the erection materials and as store and office. That the District Industries Centre (DIC) officials, after verification, were fully satisfied that the nature of work in the unit requires vast space to run his industry and it is only after such verification and satisfaction that the 3rd defendant had allotted 37 cents of land to the plaintiff as per Ext.A-1 dated 11-12-1984. That the proposed reduction of the allotted land to 12 cents is done in an arbitrary manner and that eversince the allotment of the land on 31-12-1984, the plaintiff has been utilizing the said entire extent of 37 cents of land for the last ten years and that the direction in Ext.A-6 dated 09-02-1994 to surrender 25 cents, out of the total 37 cents, is illegal and against natural justice and fairness. The plaintiff has also alleged in Ext.A-8 that the action has been proposed as per Ext.A-6 only at the instigation of another industrialist, who had earlier attempted to persuade the plaintiff to sell the plot to them, which he had refused, etc. The plaintiff reiterated that the entire extent of 37 cents of land allotted to him is absolutely essential and required for the continued functioning of his fabrication unit and that he is not liable to surrender any portion of the said area. He has also pointed out that thereafter there are several other industrial units in the locality, which are not functioning and that it is for the defendants to take effective action to resume such defunct industrial units, which have occupied by vast tracts of land, etc. Accordingly, the plaintiff prayed that he should be allowed to retain the entire extent 37 cents of land allotted to him, which is an absolutely essential requirement for running his unit, etc. That without considering the matters in its proper perspective, the 3rd defendant had issued Ext.A-10 proceedings dated 08-06-1994, by stating an altogether new ground that the considerable extent of the 37 cents of land is kept unutilised by the plaintiff, despite the lapse of eight-and-a-half years after taking possession and hence he is eligible only to keep 12 cents of land in proportion to the construction he has so far made. Accordingly, it was ordered in Ext.A-10 to resume the 27 cents of land out of the 37 cents of land alloted to the plaintiff, etc. It is the case of the plaintiff that the ground made out in Ext.A-6 dated 09-02-1994 was only that, on inspection it was found that the built up area comes only to 646 sq.feet and as such, the plaintiff will be permitted to retain only 12 cents of land, etc. and that there was no allegation in Ext.A-6 that the plaintiff had kept considerable extent of the 37 of cents of land unutilised, despite lapse of eight-and-a-half years. That the said allegation regarding unutilisation of considerable extent of land has been raised for the first time only in the final impugned order of resumption as per Ext.A-10, etc. The plaintiff contended that the impugned decision to resume the land as per Ext.A-10 is without jurisdiction and that it is illegal and that the further action proposed to be taken by the defendants in pursuance of the said impugned resumption order is liable to be interdicted. It is in the light of these aspects that the plaintiff prayed for grant of a decree of prohibitory injunction restraining the defendants from interfering possession, enjoyment of the plaint schedule property, etc. The specific averment in the plaint is that the cause of action for instituting the suit arose on the issuance of the impugned resumption order dated 08-06-1994.

(3.) Defendants 1 to 3 filed their joint written statement contending that the suit is not maintainable in terms of want of jurisdiction. That the plaintiff was bound by the agreement between the parties to pay an amount of Rs.7,425/- in equal annual instalments, which he had failed to pay even one month instalment in spite of demand. That the 3rd defendant had requested the plaintiff to remit Rs.11,300/- towards the cost of land and interest, which he had not remitted etc.