Toms P.J vs Greater Cochin Development ...
2021 Latest Caselaw 3904 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE SMT. JUSTICE P.V.ASHA

    WEDNESDAY, THE 03RD DAY OF FEBRUARY 2021 / 14TH MAGHA,1942

                      WP(C).No.35735 OF 2019(N)


PETITIONER:

               TOMS P.J
               AGED 52 YEARS
               S/O.JOB, PUTHANPURAKKAL HOUSE, NALPATHADY ROAD,
               PALLURUTHY, ERNAKULAM- 682006.

               BY ADVS.
               SRI.M.S.UNNIKRISHNAN
               SRI.V.S.SREEJITH
               SRI.K.SUNIL
               SMT.M.ARDRA KRISHNAN
               SMT.ALEENA MARIA JOSE
               SMT.SUSAN JACOB (S-3481)
               SHRI.ANEESH K.R
               SHRI.BENRAJ K.R.

RESPONDENTS:

      1        GREATER COCHIN DEVELOPMENT AUTHORITY
               KADAVANTHRA, KOCHI-20,
               REPRESENTED BY ITS SECRETARY.

      2        RETHISH.R., AGE NOT KNOWN,
               FATHER'S NAME NOT KNOWN TO THE PETITIONER,
               THUNDIPARAMBIL HOUSE, K.K.F COLONY,
               ELAMKULAM, KOCHI- 682020.

      3        ERNAKULAM DISTRICT FARM TOURISM CO-OPERATIVE SOCIETY
               LTD NO.E1313,
               SOUTH PARAVUR P.O., UDAYAMPEROOR,
               ERNAKULAM- 682307, REP. BY ITS SECRETARY.

               BY SRI.M.K.THANKAPPAN, SC
               BY ADV. SRI.T.A.RAJAN
               BY ADV. SRI.VIPIN P. VARGHESE

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.35735 OF 2019(N)

                                      2




                             J U D G M E N T

Petitioner challenges Ext.P11 proceedings on

the ground that the premises mentioned therein are

leased out to the 3rd respondent without inviting any

tender.

2. The case of the petitioner is that on

12.02.2019 he had submitted an application Ext.P1

before the GCDA requesting for allotment of the

vacant space adjoining the stair case in his two

storied building on the side of Panampilly Nagar

Road. After correspondence between the Estate

Department and Revenue Department, Engineering and

Planning Department of the GCDA in Exts.P2 to P5

letters, in respect of the alleged availability of

space and the feasibility of its allotment, it is

stated that a joint inspection of the site was

scheduled, pointing out that the said space near

stair case was not being leased out. It is stated

that while proceedings were thus in progress, based WP(C).No.35735 OF 2019(N)

on the application of the petitioner, certain other

applications were also there for allotment of the

said space in May, 2019 and July, 2019. It is stated

that though the Estate wing had sought for the

opinion of the Revenue wing as to the feasibility of

inviting tenders and as to the allotment of the said

vacant space, as per Ext.P9 note, the Executive

Council of the first respondent on 20.11.2019, as per

Ext.P11 decided to allot the said space to the 3 rd

respondent.

3. It is stated that on the basis of the

decision in Ext.P11 the space was already allotted

to the 3rd respondent who has entered into an

agreement with the 1st respondent.

4. Petitioner challenges Ext.P11 decision

pointing out that when a public authority is letting

out its space or shop room it should be only after

inviting tenders adopting a transparent procedure.

5. The GCDA has filed a statement according to

which the space which has been allotted based on WP(C).No.35735 OF 2019(N)

Ext.P11 does not have a building number. While

admitting the proceedings in Exts.P2 to P11 pursuant

to the receipt of the application from petitioner, it

is stated that the said space was never being

allotted to any body; it is a space in the common

area below the stair case having 46.5 Square Feet,

which cannot be got numbered; a space without

building number cannot be put in auction or tendered

as it is not a room for allotment on permanent basis

as per the rules and regulations of GCDA. It is

stated that after considering all these aspects,

executive committee has as per Ext.R1(c) resolution

dated 27.11.2019 decided to let out the same to the

third respondent-the District Farm Tourism

Co-operative Society, provisionally on a rent at the

rate of Rs.25 per Square Feet on condition that the

Society has to affix a shutter in the wall without

causing damage to the existing building, under the

supervision of the Engineering Department. It is also

stated that the Executive Committee has taken the WP(C).No.35735 OF 2019(N)

decision taking note of the fact that 3 rd respondent

is a Farm Society. It is stated that based on

Ext.R1(c) resolution, a total area of 46.5 Sq. Feet

is provisionally allotted to the 3 rd respondent as per

Ext.R1(d) order dated 29.01.2020.

6. The 3rd respondent has also filed a

statement. The 3rd respondent has stated that it is a

Society conducting a Farm at Kanjiramattom and the

Farm products are being sold by Society in various

places and the Society had submitted an application

on 02.06.2019 to the 1 st respondent in order to have

an outlet of the Society at Panampally Nagar and

Ext.R3(b) application was submitted to the 1 st

respondent on 02.06.2019 on coming to know about the

availability of the space under the first respondent.

Producing Annexure R3(d) order dated 29.01.2020 by

which the space has been allotted on the basis of

Ext.P11 proceedings, it is stated that the 3 rd

respondent has remitted a sum of Rs.15,382/- on

07.02.2020 and removed the existing wall placing WP(C).No.35735 OF 2019(N)

shutter. It is also stated that the allotment is

made provisionally for a period of six months on

29.01.2020 and therefore the writ petition has become

infructuous according to the 3 rd respondent.

7. Learned counsel for the 3rd respondent

submitted that the 3rd respondent has already started

functioning after incurring huge expenditure and

being a Society selling Farm products there was

nothing wrong on the part of the first respondent in

allotting the space.

8. Heard the learned Counsel on both sides.

9. Relying on the judgment of the Apex Court

in Akhil Bharatiya Upbhokta Congress v. State of

Madhya Pradesh & Ors [2011 (5) SCC 29], the learned

counsel for the petitioner argued that there should

be transparency, whenever allotments of land or any

type of largess of the State is made and any activity

should be consistent with Article 14 of the

Constitution of India and allotment should be only

after giving public notice.

WP(C).No.35735 OF 2019(N)

10. Though it is seen that petitioner had

submitted his application for allotting the space

even in the absence of any notice inviting tender and

he has filed this writ petition when the very same

space was seen allotted to the 3 rd respondent,

overlooking his application, the first respondent

being an authority under the State is expected to act

only in accordance with rules. As rightly contented

by the learned Counsel for the petitioner once the

property of the GCDA is decided to be allotted on

rent, despite the fact that the space does not have a

building number, it can only be done after affording

an opportunity to all concerned to participate in the

process of allotment, for which there should be a

transparent procedure. As long as there is no

provision of law which permits the GCDA to make such

allotments to farm societies like 3 rd respondent

without any tender, the decision of the 1st respondent

to allot the space in its building to the Society

without adopting any process known to law shall WP(C).No.35735 OF 2019(N)

stand set aside. At any rate, as the 3 rd respondent

has already started functioning, it shall be allowed

to continue, till the proceedings for a tender for

allotment of the space is finalised, in case the 1 st

respondent has decided to extend the duration of the

allotment. However the proceeding for tender for

allotment of the said space shall be commenced and

completed within a period of 'three months' from the

date of receipt of a copy of the judgment provided

the 1st respondent decides to continue with

provisional allotment of the space involved.

The writ petition is disposed of accordingly.

Sd/-

P.V.ASHA, JUDGE AS WP(C).No.35735 OF 2019(N)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE APPLICATION DATED 12.2.2019 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT

EXHIBIT P2 TRUE COPY OF THE NOTE SUBMITTED BY THE ESTATE WING OF THE 1ST RESPONDENT BEFORE THE REVENUE WING OF THE 1ST RESPONDENT DATED 26.2.2019

EXHIBIT P3 TRUE COPY OF THE NOTE SUBMITTED BY THE REVENUE WING TO THE ESTATE WING OF THE 1ST RESPONDENT DATED 2.3.2019

EXHIBIT P4 TRUE COPY OF THE NOTE SUBMITTED BY THE ESTATE OFFICER OF THE 1ST RESPONDENT DATED 18.3.2019

EXHIBIT P5 TRUE COPY OF THE REMAINDER DATED 8.5.2019 SUBMITTED BY THE ESTATE OFFICER OF THE 1ST RESPONDENT

EXHIBIT P6 TRUE COPY OF THE NOTE SUBMITTED BY THE SUPERINTENDING ENGINEER OF THE 1ST RESPONDENT DATED 13.5.2019

EXHIBIT P7 TRUE COPY OF THE APPLICATION SUBMITTED BY THE 2ND RESPONDENT DATED 8.5.2019 BEFORE THE 1ST RESPONDENT

EXHIBIT P8 TRUE COPY OF THE APPLICATION DATED 16.7.2019 SUBMITTED BY THE 3RD RESPONDENT BEFORE THE 1ST RESPONDENT

EXHIBIT P9 TRUE COPY OF THE PETITION DATED 1.8.2019 SUBMITTED BY THE PETITIONER BEFORE THE MINISTER OF LOCAL SELF GOVERNMENT DEPARTMENT

EXHIBIT P10 TRUE COPY OF THE NOTE SHEET OF THE PROCEEDINGS OF THE 1ST RESPONDENT IN RELATION TO THE ALLOTMENT OF THE WP(C).No.35735 OF 2019(N)

SUBJECT SHOP ROOM DATED 30.8.2019

EXHIBIT P11 TRUE COPY OF THE PROCEEDING OF THE EXECUTIVE COMMITTEE OF THE 1ST RESPONDENT DATED 20.11.2019

RESPONDENT'S EXHIBITS:

ANNEXURE R1 (A) TRUE COPY OF THE LETTER DATED 12.8.2019 OF THE ERNAKULAM DISTRICT FARM TOURISM CO-OPERATIVE SOCIETY LTD. NO.E 1313.

ANNEXURE R1(B) TRUE COPY OF THE RESOLUTION NO.12/2019 OF THE ERNAKULAM DISTRICT FARM TOURISM CO-OPERATIVE SOCIETY LTD. NO.E 1313.

ANNEXURE R1(C) TRUE COPY OF THE RESOLUTION NO.136/2019-20 OF THE EXECUTIVE COMMITTEE OF GCDA

ANNEXURE R1(D) TRUE COPY OF THE ORDER NO.8129/ESTATE/B-2/2019/GCDA DATED 29.1.2020

ANNEXURE R3(A) TRUE COPY OF THE CLAUSE III OF THE BYE LAWS OF THE THIRD RESPONDENT FARM TOURISM SOCIETY DEALS.

ANNEXURE R3(B) TRUE COPY OF THE APPLICATION DATED 2.6.2019

ANNEXURE R3(C) TRUE COPY OF THE APPLICATION DATED 12.8.2019 OF THE THIRD RESPONDENT.

ANNEXURE R3(D) TRUE COPY OF THE ORDER DATED 29.1.2020