The Managing Director, Vizhinjam ... vs State Of Kerala
2022 Latest Caselaw 11572 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

         THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                      &

                 THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

    TUESDAY, THE 20TH DAY OF DECEMBER 2022 / 29TH AGRAHAYANA, 1944

                            WP(C) NO. 30793 OF 2015

PETITIONER:

              THE MANAGING DIRECTOR, VIZHINJAM,
              INTERNATIONAL SEA PORT LTD., 1ST FLOOR, VIPANCHIKA TOWERS,
              THYCAUD,THIRUVANANTHAPURAM-695 014,
              REPRESENTED BY ITS MANAGING DIRECTOR.
              BY ADVS.VIPIN P VARGHESE
              ADARSH MATHEW(KAR/2577/2015)
              KEVIN MATHEW GEORGE(K/1431/2020)
              MEERA ELSA GEORGE(K/001893/2021)
              MERLINE MATHEW(K/001279/2022)

RESPONDENTS:

     1        STATE OF KERALA
              REPRESENTED BY CHIEF SECRETARY TO
              GOVERNMENT,GOVERNMENT
              SECRETARIAT,THIRUVANANTHAPURAM.

     2        SPECIAL TAHSILDAR
              (LA),VIZHINJAM INTERNATIONAL SEA PORT LTD, VIZHINJAM.

     3        SMT.KAMALAMMA, PERAYIL MELE PUTHEN
              VEEDU,MUKKOLA,VENGANNOR P.O., NEYYATTINKARA TALUK.

     4        THE KERALA LOK AYUKTA
              LEGISLATURE COMPLEX,VIKAS BHAVAN,THIRUVANANTHAPURAM-
              33,REPRESENTED BY ITS REGISTRAR.

     5        SABU MAHESH, AGED 28, S/O MAHESWARAN NADAR, RESIDING AT
              THRIKKARTHIKA, MUKKOLA, KADAIKULAM DESOM, NEYYATTINKARA
              TALUK, MULLOOR P O, VIZHINJAM VILLAGE,
              THIRUVANANTHAPURAM DISTRICT.
              (ADDL. Respondent no.5 added as per order dated 7.12.2015 in
              I.A.No.17377/15 in the W.P.(C))

              BY ADVS.SRI.D.KISHORE
              SRI.G.S.REGHUNATH
              SMT.RENU. D.P., SC, LOK AYUKTA
              SRI.TERRY V. JAMES


       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C)No.30793 OF 2015
                              :: 2 ::




                          JUDGMENT

Dated this the 20th day of December, 2022

S.MANIKUMAR, CJ

Petitioner is a Government company, promoted by

Government of Kerala, for implementing the International

Seaport Project at Vizhinjam. Instant writ petition is filed

against the order of the Hon'ble Lok Ayukta dated

10.8.2015, Exhibit-P7, whereunder, direction was issued for

delivery of possession of plot No.2 to the allottee Smt.

Kamalamma, who is arrayed herein as the 3rd respondent.

2. Impugned order passed by the Hon'ble Lok Ayukta

on 10.8.2015 is reproduced hereunder:

"Heard the counsel for the complainant, the Government Pleader and the counsel for the first respondent. The grievance of the Complainant is that though she was allotted plot No. 2 in the allotment made by the Special Tahsildar (LA), that plot is not given possession of to her, though the other plots allotted to several others were given possession of to them. In view of the vague submission, it was ordered to explain as to why she is not being given possession and also to report as to whether there is any order cancelling the allotment. The Government Pleader has along with his memo dated 08/07/2015 filed letter received by him from the Special Tahsildar (LA), Vizhinjam International Seaport Limited, Thiruvananthapuram, wherein it is stated that under WP(C)No.30793 OF 2015 :: 3 ::

the Rehabilitation Scheme, 5 cents which is shown as plot No.2, is allotted to the complainant and that no order is passed or issued from his office cancelling the said allotment. He has further reported that taking over of the plot and assigning it to the allottees executing necessary registered documents are to be done by the officials of the Vizhinjam International Sea Port Limited, Thiruvananthapuram. Counsel for the first respondent submits that the complainant is not one who was having title to any portion of the acquired property and therefore she is not one entitled to allotment of plot of 5 cents under the Rehabilitation Scheme. It is too much for the first respondent to probe into the matter and go behind the allotment made by the Special Tahsildar (LA), Vizhinjam International Seaport and then say that the complainant is not one entitled to have plot of 5 cents allotted as has been done by the Special Tahsildar. When plot No. 2 is allotted under the Rehabilitation Scheme to the complainant, it is the duty of the first respondent to make assignments accordingly and he has no jurisdiction to enquire into any other matter in the matter of allotment of plots under the Rehabilitation Scheme. Hence, we pass this interim order directing the first respondent to execute necessary documents in relation to the said 5 cents shown as plot No. 2 in favour of the complainant and put her in possession of the said plot No.2 having an area of 5 cents as allotted by the Special Tahsildar (LA), Vizhinjam International Seaport, Thiruvananthapuram. Any resistance in that behalf "by any one shall be cleared, if need be, by the police intervening in the matter. The first respondent, in case of his failure to comply with the directions, will have to appear before this Forum on the next posting date.

Communicate this order to the first respondent forthwith and report on 12.10.2015."

WP(C)No.30793 OF 2015 :: 4 ::

3. Being aggrieved, instant writ petition is filed

seeking for the following reliefs:

"(i) To call for the records leading to Exhibit P7 order of the Kerala Lok Ayukta and quash the same by a writ of certiorari or any other appropriate order after declaring that Ext.P7 order is the one passed without jurisdiction;

(ii) To pass an order declaring that the 3 rd Respondent is not entitled to get 5 cents of land under the Rehabilitation package as she has relinquished all her claim by accepting an amount of Rs. 5, 50,000/- from the petitioner and on conveying a valid title over two areas of land to the petitioner as per sale deed No. 2430/2012 of Venganoor Sub Registry Office."

4. Short facts leading to the filing of the writ petition

are as under:

Land is being procured for the Vizhinjam International

Seaport Project at Vizhinjam either through the provision of

Land Acquisition Act 1894 or through negotiated purchase

from the land owners under Fast Track Scheme. Under the

Fast track Scheme, the land value will be fixed by the

District Level Purchase Committee with the consensus of

land owners on category wise, which will be approved by

the State Level Empowering Committee and sale deeds will

be got executed from the land owners. Government as per

GO(MS)No.42/10/F&PD dated 29-05-2010 issued guidelines WP(C)No.30793 OF 2015 :: 5 ::

fixing the packages for resettlement and rehabilitation of

project affected persons and also issued detailed guidelines

to the District Level Purchase Committee for land

acquisition under Fast Track Project for Vizhinjam Port

Project.

4.1. As a part of the land procurement for the Project,

an area of 02.00 Ares (4.940 cents) of land in Resurvey

No.423/3 (old Survey No.273) of Vizhinjam village was

jointly owned by Smt.Sudha, wife of the late Maheswaran

Nair, Smt.Suma Mahesh, Smt.Simi Mahesh and Shri.Sabu

Mahesh, children of late Maheswaran Nair of Thrikarthika,

Mukkola, Vizhinjam, on the death of Mr.Maheswaran Nair,

as the only legal heirs as per Thandaper account No.29817

of Vizhinjam Village. In the said land, there was a building

bearing door No.XIV/990 in which the 3 rd respondent,

Kamalamma was residing. The 3rd respondent had filed a

suit as O.S No 1171 of 2011 before Hon'ble Addl. Munisiff

Court, Neyyattinkara against Sudha and others and the

petitioner as defendant No.5 for a permanent prohibitory

injunction restraining the defendants from causing any sort

of interference to the peaceful possession and enjoyment of WP(C)No.30793 OF 2015 :: 6 ::

the plaint scheduled property and from dispossessing her

forcibly from there and also restraining the 5 th defendant

from disbursing the award amount relating to the

acquisition of the plaint schedule property directly to the

defendants 1 to 4 instead of depositing the same in the

court as contemplated under LA Act. Later, the Plaintiff in

O.S.No.1171 and defendants 1 to 4 entered into a

compromise and compromise petition was filed before the

Court in I.A.No.2072/12 and the Hon'ble Addl. Munsiff's

Court passed the judgment and decree on 11 th April, 2012

in terms of the compromise petition which formed part of

the Decree.

4.2. Relying on the compromise decree, VISL executed

the sale deed with Sudha, Suma Mahesh, Simi Mahesh,

Sabu Mahesh and Smt Kmalamma, jointly, in respect of

aforesaid 2 Ares of land situated in Resurvey No.423/3 in

Vizhinjam village on 9/11/2012, which was registered as

document No.2430 of 2012 of Vengannor Sub Registry

Office. An amount of Rs.7,38,419/- was paid to Sudha, Suma

Mahesh, Simi Mahesh, Sabu Mahesh and amount of

Rs.2,50,000/- to the 3rd respondent as per compromise WP(C)No.30793 OF 2015 :: 7 ::

decree and Rs.3,00,000/- towards value of the building

being surrendered as per the rehabilitation package based

on the Government Order. Since, as part of the compromise

decree, it is also agreed between the plaintiff and

defendants that apart from the land acquisition

compensation, since the plaintiff does not own any other

building or property for her residence, the plaintiff is

entitled to accept from VISL all other benefits which she is

entitled from VISL. Accordingly, the amount of Rs.3,00,000/-

towards cost of the building as stated above was also paid

to the 3rd respondent for surrendering the building which is

minimum value fixed under the rehabilitation package.

4.3. According to the appellant, the 3rd respondent is

not entitled to claim 5 cents of land for resettlement since

she is not the owner of land with building and she has

received compensation as per compromise decree which is

more than the actual compensation eligible under the

rehabilitation package. Further 3rd respondent had given

affidavit before the 2nd respondent Special Tahasildar,

Vizhinjam that she will accept an amount of Rs.2,50,000/-

from the LA Compensation and relinquish all her claim on WP(C)No.30793 OF 2015 :: 8 ::

the land.

4.4. It is further contended by the appellant that the

Special Tahsildar, without considering the compromise

reached between the owners of the land and the 3 rd

respondent, as stated above, by an erroneous interpretation

of the Government Order, G.O.(MS)No 42/10/F&PD dated

29-05-2010 included the name of the 3rd respondent in the

list of eligible land owners for 5 cent of land each under

resettlement package. The petitioner has declined to accept

the recommendation of the Special Tahsildar, as the 3rd

respondent has enjoyed the full benefit as per the

compromise as well as under the guidelines issued in the

Government Order. Further, as per the compromise and as

per the rehabilitation package the land owners were given

5 cents of land for resettlement and gift deed No.2592 of

2012 of Vengannor SRO has been executed in favour of land

owners. After executing the sale deed with full knowledge

and consent and being a party to the sale deed and

accepting an amount of Rs.5,50,000/- from the petitioner,

3rd respondent filed Complaint No.1027 of 2013 before the

Hon'ble Kerala Lok Ayukta alleging that she is entitled to WP(C)No.30793 OF 2015 :: 9 ::

get 5 cents of land under resettlement package. According

to the appellant, Ext.P7 order passed by the Hon'ble Kerala

Lok Ayukta is without jurisdiction as the subject matter of

the complaint is not the one coming within the jurisdiction

of the Lok Ayukta, enumerated in Section 2(b) of the Kerala

Lok Ayukta Act. Hence, this writ petition.

5. Record of proceedings shows that on 9.10.2015, writ

court has passed an interim order granting stay of

operation of Ext.P7 order dated 10.8.2015 and all further

proceedings in the Complaint No.1027/2013, for a period of

two months. On 7.12.2015, the said order was extended for

a period of 2 months. On 15.3.2016 also, the interim order

was extended by 3 months. Writ petition is pending before

this court from 2015 onwards. Complaint No.1027/2013 is

also pending before the Hon'ble Lok Ayukta from 2013

onwards.

6. Mr.D.Kishore, learned counsel for the 3rd

respondent, submitted that status quo as on 9.10.2015

continues till now. Said submission of the learned counsel

is placed on record.

WP(C)No.30793 OF 2015 :: 10 ::

7. Having regard to the pendency of the complaint

before the Hon'ble Lok Ayukta and the submission now

made by the learned counsel for the 3 rd respondent, we

deem it fit to remit the matter back to the Hon'ble Lok

Ayukta. Therefore, we request the Hon'ble Lok Ayukta to

consider and dispose of the Complaint No.1027/2013, as

early as possible, after affording an opportunity of hearing

to the affected parties.

Writ petition is disposed of. We make it clear that all

questions of law and facts are left open.

SD/-

S.MANIKUMAR CHIEF JUSTICE

SD/-

SHAJI P. CHALY JUDGE jesxxxxx WP(C)No.30793 OF 2015 :: 11 ::

APPENDIX

PETITIONER'S EXHIBITS:

EXT.P1: A TRUE COPY OF SAID GOVERNMENT ORDER NO.GO(MS)NO.42/10/F&PD DATED 29.05.2010.

EXT.P2: A TRUE COPY OF THE JUDGMENT AND DECREE OF ADDITIONAL MUNSIFF COURT, NEYYATTINKARA DATED 11.04.2012.

EXT.P3: A TRUE COPY OF THE JUDGMENT AND DECREE OF ADDITIONAL MUNSIFF COURT, NEYYATTINKARA DATED 11.04.2012.

EXT.P4: A TRUE COPY OF VALUATION CERTIFICATE NO.AEE/10/2010-

11 (REVISED) FROM THE OFFICE OF THE ASSISTANT EXECUTIVE ENGINEER,PWD BUILDING SUB DIVISION,NEYYATTINKARA.

EXT.P5: A COPY OF THE COMPLAINT DATED 12.08.2013 FILED BY THE 3RD RESPONDENT WITHOUT ITS ANNEXRUE/DOCUMENTS.

EXT.P6: A COPY OF THE COUNTER STATEMENT DATED 08.04.2014 FILED BY THE PETITIONER.

EXT.P7: A COPY OF THE ORDER DATED 10.08.2015 OF THE HONOURABLE LOK AYUKTA.

ANNEXURE I TRUE COPY OF THE GIFT DEED NO.2592 OF 2012 DATED 1.12.2012.

ANNEXURE II TRUE COPY OF THE SETTLEMENT DEED IN MY FAVOUR AS DEED NO.678 OF 2015 DATED 13.4.2015. ANNEXURE III TRUE COPY OF THE TAX RECEIpt DATED 25.5.2015 ISSUED IN THE NAME OF PETITIONER HEREIN.

ANNEXURE IV TRUE COPY OF THE PLAINT IN O.S. NO.536/2013 OF THE MUNSIFF'S COURT, NEYYATTINKARA DATED 28.6.2013. ANNEXURE V TRUE COPY OF THE ORDER IN I.A.NO.3298/2013 IN O.S.NO.536/2013 OF THE MUNSIFF'S COURT, NEYYATTINKARA DATED 29.6.2013.

ANNEXURE VI TRUE COPY OF THE SALE DEED NO.2439/12 DATED 9.11.2012.

RESPONDENTS' EXHIBITS:

EXT.R3(a) TRUE COPY OF THE OWNERSHIP CERTIFICATE DATED 23.11.2011 ISSUED BY THE CORPORATION OF THIRUVANANTHAPURAM.

EXT.R3(b) TRUE COPY OF THE TAX RECEIPT DATED 21.11.2011 ISSUED BY THE CORPORATION OF THIRUVANANTHAPURAM. WP(C)No.30793 OF 2015 :: 12 ::

EXT.R3(c) TRUE COPY OF THE RELEVANT EXTRACT OF THE RATION CARD OF THE 3RD RESPONDENT.

EXT.R3(d) TRUE COPY OF THE PROCEEDINGS NO.A2.452/2012 DATED 6.8.2012 OF THE 2ND RESPONDENT.

EXT.R3(e) TRUE COPY OF THE PROCEEDINGS DATED 1.7.2013 OF THE PUBLIC INFORMATION OFFICER ALONG WITH THE MINUTES OF THE MEETING DATED 16.8.2012. EXT.R3(f) TRUE COPY OF THE PLAINT IN O.S. 536/2013 BEFORE THE MUNSIFF'S COURT, NEYYATTINKARA.

EXT.R3(g) TRUE COPY OF THE WRITTEN STATEMENT ALONG WITH A COUNTER CLAIM FILED BY THE 3RD RESPONDENT TO EXT.R3(f).

EXT.R3(h) TRUE COPY OF THE GIFT DEED NO.2592/2012 EXECUTED BY THE PETITIONER IN FAVOUR OF THE LEGAL REPRESENTATIVES DECEASED MAHESWARAN NADAR.

// TRUE COPY //

P.S. TO JUDGE