Konkan Storage Systems (Kochi) ... vs Cochin Port Trust
2021 Latest Caselaw 19057 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
        THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
MONDAY, THE 13TH DAY OF SEPTEMBER 2021 / 22ND BHADRA, 1943
                   WP(C) NO. 7798 OF 2020


PETITIONERS:

    1      KONKAN STORAGE SYSTEMS (KOCHI) PVT.LTD
           PLOT NO.64,65,66, A2 AREA,
           SOUTH END RECLAMATION, MATSYAPURI.P.O,
           WILLINGTON ISLAND, COCHIN-682029, KERALA
           REP, BY ITS CHIEF MANAGER SREENIVASAN P NAIR

    2      SREENIVASAN P NAIR, AGED 64 YEARS
           S/O.E.PADMANABHAN NAIR,
           RESIDING AT 3C MERIDIAN SYMPHONY,
           NORTH FORT GATE, TRIPPUNITHURA, COCHIN-682301,
           CHIEF GENERAL MANAGER,
           KONKAN STORAGE SYSTEMS(KOCHI) PVT LTD

           BY ADVS.
           ANIL THOMAS(T)
           SMT.K.V.RASHMI

RESPONDENTS:

    1      COCHIN PORT TRUST, WILLINGTON ISLAND,
           COCHIN-682009, REP BY ITS SECRETARY.

    2      THE EAST OFFICER, COCHIN PORT TRUST,
           WILLINGTON ISLAND, COCHIN-682009

    3      SECRETARY, COCHIN PORT TRUST, WILLINGTON ISLAND,
           COCHIN-682009.

    4      TRAFFIC MANAGER, COCHIN PORT TRUST,
           WILLINGTON ISLAND, COCHIN-682009
 W.P.(C) No.7798 of 2020

                                    2

    5          UNION OF INDIA
               REP BY THE MINISTRY OF HOUSING AND URBAN
               AFFAIRS, NIRMAN BHAWAN, MAULANA AZAD ROAD,
               NEW DELHI-110001, REP BY ITS SECRETARY.

               BY ADVS.
               SRI.ABRAHAM MARKOS, COCHIN PORT TRUST
               SRI.M.A.VINOD, CGC
               SRI.ABRAHAM JOSEPH MARKOS, SC, COCHIN PORT TRUST
               SRI.ISAAC THOMAS, SC, COCHIN PORT TRUST
               SRI.P.G.CHANDAPILLAI ABRAHAM
               SRI.VIPIN ANTO H.M.
               SRI.SHARAD JOSEPH KODANTHARA
               SMT.ZAINAB ZEBAIBRAHIM P.M.


        THIS    WRIT   PETITION    (CIVIL)   HAVING   COME    UP    FOR
ADMISSION       ON   13.09.2021,   THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 W.P.(C) No.7798 of 2020

                                3




                      JUDGMENT

Among the various allegations,

assertions and averments in the writ petition,

the fundamental plea of the petitioners

against Ext.P21 - the impugned order - is that

it has been issued by the same Authority which

issued Ext.P17.

2. The petitioners allege that Ext.P21 is

a premeditated and prejudged order because the

same Authority, namely, the Secretary of the

Cochin Port Trust, had earlier issued Ext.P17,

holding that the conditions of the lease had

been violated and, therefore, that the same

requires to be terminated.

3. The petitioners say that this amounts

to the same Authority acting as the Judge and

Jury and asserts that Ext.P21 is illegal. The

petitioners, therefore, pray that both

Exts.P17 and P21 be set aside and the W.P.(C) No.7798 of 2020

competent Authority be directed to reconsider

the matter, thus leading to a proper decision

in law.

4. I have heard Smt.Rashmi K.V - learned

counsel for the petitioners; Sri.Isaac Thomas

- learned Standing Counsel appearing for the

respondents 1 to 4 and Sri.M.A.Vinod, learned

CGC for the 5th respondent.

5. Smt. Rashmi K.V, learned counsel

appearing for the petitioners, began her

submissions saying that Ext.P21 cannot find

favour in law because the Estate Officer - who

is the Secretary of the Cochin Port Trust -

has already issued Ext.P17, whereby, he had

already made up his mind to terminate the

lease and to evict her client. She submitted

that this is violation of the principles of

natural justice and that this amounts to an

infraction of the constitutional rights of her

client to be treated under due process and in W.P.(C) No.7798 of 2020

compliance of the imperative procedure.

Smt.Rashmi K.V, then contended that Ext.P21

cannot be granted favour because Ext.P17 -

issued by the same Authority - had already

prejudged the issue and consequently that he

became incapacitated from issuing the latter

order.

6. In response, Sri.Isaac Thomas, learned

Standing Counsel for the respondents 1 to 4,

submitted that the afore submissions of

Smt.Rashmi K.V, cannot hold water for various

reasons. He explained that, for the first one,

Ext.P21 order is an appealable one, under the

provisions of Section 9 of the Public Premises

(eviction of unauthorized occupants) Act, 1971

(hereinafter referred to 'the Act' for short);

and for the second, that even if it assumed

that the Secretary of the Cochin Port Trust

has issued Ext.P17 prior to Ext.P21, it would

make no difference because the latter order W.P.(C) No.7798 of 2020

has been issued by him in his capacity as the

competent Authority and that Ext.P17 has not

been even referred therein, nor can it be seen

to have a bearing on its contents. He

submitted that, therefore, the remedy of the

petitioners are to file an appeal against

Ext.P21, rather than impel a plea that the

same is vitiated solely on account to the fact

that Ext.P17 had been issued earlier by the

Estate Officer.

7. I find substantial force in the

submissions of Sri.Isaac Thomas because,

whatever be the contention of the petitioners

against Ext.P21, the fact remains that the

Secretary of the Cochin Port Trust alone could

have issued the same, since he is the only and

the sole competent Authority. Therefore, even

if it is accepted that he had earlier issued

Ext.P17, it would not cast any cloud on

Ext.P21, since I notice that the said order W.P.(C) No.7798 of 2020

stands of its own, without any reference to

the former one.

8. That apart, whatever be the allegation

of the petitioners, since they have an

alternative remedy of challenging Ext.P21

effectively, I fail to understand why they

cannot be directed to do so, particularly when

it is admitted that Section 9 of the Act gives

him such an opportunity.

9. In the afore circumstances, I order

this writ petition and leave liberty to the

petitioners to approach the competent

Authority with an appropriate appeal under

Section 9 of the Act; and this is done within

a period of two weeks from the date of receipt

of a copy of this judgment, the same shall be

considered on its merits, after affording

necessary opportunity of being heard to the

petitioners and after following due procedure;

thus, culminating an appropriate order W.P.(C) No.7798 of 2020

thereon, as expeditiously as is possible.

10. Needless to say, while completing the

afore exercise, the competent Authority will

disregard Ext.P17 in its whole and decide the

merits of Ext.P21, without any reference to

the earlier view of the Estate Officer in

Ext.P17.

It also goes without saying that until

such time as the afore exercise is completed

and the resultant order communicated to the

petitioners, the order of status quo; as

directed by this Court on 17.03.2020, will

continue to be in effect.

This writ petition is thus ordered.

Sd/-

DEVAN RAMACHANDRAN, JUDGE.

ww W.P.(C) No.7798 of 2020

APPENDIX OF WP(C) 7798/2020 PETITIONERS' EXHIBITS

EXHIBIT P1 A TRUE COPY OF THE AGREEMENT EXECUTED IN RELATION TO PLOTS V79, ON 17.08.2011

EXHIBIT P2 A TRUE COPY OF THE AGREEMENT EXECUTED IN RELATION TO PLOT V82, ON 17.08.2011

EXHIBIT P3 A TRUE COPY OF THE REQUEST SUBMITTED BEFORE THE CHIEF ENGINEER OF THE 1ST RESPONDENT DATED 14.07.2016

EXHIBIT P4 A TRUE COPY OF THE LETTER SUBMITTED BEFORE THE CHIEF ENGINEER OF THE 1ST RESPONDENT ON 15.07.2016

EXHIBIT P5 A TRUE COPY OF COMMUNICATION DATED 05.08.2016 ISSUED BY THE SUPERINTENDING ENGINEER OF THE 1ST RESPONDENT TO THE 1ST PETITIONER.

EXHIBIT P6        A TRUE COPY OF THE LETTER ADDRESSED TO
                  THE    1ST     PETITIONER    BY    THE

SUPERINTENDING ENGINEER OF THE 1ST RESPONDENT DATED 26.09.2016.

EXHIBIT P7 A TRUE COPY OF THE LETTER FROM THE 1ST PETITIONER TO THE SUPERINTENDING ENGINEER OF THE 1ST RESPONDENT DATED 05.10.2016.

EXHIBIT P8 A TRUE COPY OF THE LETTER DATED 05.10.2016 ISSUED BY THE SECRETARY OF THE 1ST RESPONDENT.

EXHIBIT P9 A TRUE COPY OF THE DETAILED LETTER ADDRESSED TO THE SECRETARY OF THE 1ST RESPONDENT DATED 21.10.2016. W.P.(C) No.7798 of 2020

EXHIBIT P10 A TRUE COPY OF THE LETTER ADDRESSED TO THE CHIEF ENGINEER BY THE PETITIONER DATED 16.08.2017.

EXHIBIT P11 A TRUE COPY OF THE COPY OF THE LETTER DATED 07.11.2017, ADDRESSED TO THE SECRETARY OF THE 1ST RESPONDENT.

EXHIBIT P12 A TRUE COPY OF THE LETTER SENT BY THE TRAFFIC MANAGER TO THE PETITIONER COMPANY DATED 26.04.2018.

EXHIBIT P13 A TRUE COPY OF THE LETTER ISSUED BY THE SUPERINTENDING ENGINEER OF THE 1ST RESPONDENT DATED 26.06.2018.

EXHIBIT P14 A TRUE COPY OF THE LETTER ISSUED BY THE SECRETARY OF THE 1ST RESPONDENT TO THE PETITIONER COMPANY DATED 29.10.2018.

EXHIBIT P15 A TRUE COPY OF THE FINAL NOTICE ISSUED BY THE SECRETARY OF THE 1ST RESPONDENT DATED 09.01.2019.

EXHIBIT P16 A TRUE COPY OF THE LETTER ADDRESSED TO THE CHAIRMAN BY THE 1ST PETITIONER DATED 25.01.2019.

EXHIBIT P17 A TRUE COPY OF THE ORDER DATED 06.04.2019 ISSUED BY THE SECRETARY OF THE 1ST RESPONDENT.

EXHIBIT P18 A TRUE COPY OF THE FORM A ISSUED NOTICE BY THE 2ND RESPONDENT DATED 08.04.2019.

EXHIBIT P19 A TRUE COPY OF THE DETAILED COMMUNICATION DATED 10.06.2019 ADDRESSED TO THE 3RD RESPONDENT.

EXHIBIT P19(A) A TRUE COPY OF THE BANK STATEMENT FROM 01.07.2019 TO 31.07.2019 OF AXIZ BANK. W.P.(C) No.7798 of 2020

EXHIBIT P20 A TRUE COPY OF THE DETAILED REPLY DATED 20.06.2019 SUBMITTED BEFORE THE 2ND RESPONDENT.

EXHIBIT P21 A TRUE COPY OF THE FORM B ORDER ISSUED BY THE 2ND RESPONDENT, ON 26.02.2020.

EXHIBIT P22       A TRUE COPY OF THE COMMUNICATION DATED
                  09.03.2020   ISSUED     BY    THE  3RD
                  RESPONDENT  ON   BEHALF    OF  THE 1ST
                  RESPONDENT.