Dismissed

Greater Cochin Development Authority (Gcda), v. P.K.Ashokan

Kerala HC1 Dec 2020WA/1015/2020

Case brief

AI extract

What is this about?

The High Court dismissed a writ appeal filed by the Greater Cochin Development Authority challenging a decision to assign 4.5 cents of land to an applicant. The Court held that the authority could not introduce new grounds or facts in its counter-affidavit to justify cancelling a prior resolution and that pending vigilance inquiries did not justify withholding the allotment of the specific land to

What did the court decide?

Appellants directed to act in terms of the impugned judgment of the Single Judge.

Greater Cochin Development Authority (Gcda), Vs P.K.Ashokan — Property and Title | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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TUESDAY, THE 01ST DAY OF DECEMBER 2020 / 10TH AGRAHAYANA, 1942

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WA.No.1015 OF 2020

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AGAINST THE JUDGMENT IN WP(C) 4783/2019(W) OF HIGH COURT OF KERALA

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APPELLANT/RESPONDENT:

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1 GREATER COCHIN DEVELOPMENT AUTHORITY (GCDA), REPRESENTED BY THE SECRETARY, GCDA, KOCHI-682 020.

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2 SECRETARY, GREATER COCHIN DEVELOPMENT AUTHORITY, KOCHI-682 020.

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BY ADVS. SRI.V.J.MATHEW (SR.) SRI.VIPIN P.VARGHESE SMT. DHANYA T MALLAR SMT.ATHIRA ANTONY A. SHRI.S.K.KASHYAP SRI.ADARSH MATHEW

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RESPONDENT/S:

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1 P.K.ASHOKAN, AGED 58 YEARS, S/O.LATE KRISHNAN, ARAMANAPARAMBU, PERUMANOOR, KOCHI-15.

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2 THE DISTRICT COLLECTOR, COLLECTORATE, ERNAKULAM, PIN-682 030.

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(ADDITIONAL R2 IS IMPLEADED AS PER ORDER DATED 26/11/2020 IN IA NO.3/2020 IN WA 1015/2020.)

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SRI.MANU ROY FOR R1

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SRI. TEK CHAND SR GP FOR R2

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A.No.1015 of 2020

“C.R.”

JUDGMENT

Dated this the 1^st day of December, 2020

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S.Manikumar, C.J.

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Being aggrieved by the judgment made in W.P.(C) No.4783 of 2019 dated 20.8.2019, instant writ appeal is filed.

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Short facts leading to the filing of the writ petition are that, father of the petitioner/1^st respondent herein, Krishnan, was Kudikidappukaran of 3 cents of property in Sy.No.1044/5 of Ernakulam Village. After the death of Krishnan, his legal heirs applied for purchasing the kudikidappu before the Land Tribunal, Ernakulam vide O.A.No.36 of 1983.

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During the pendency of said proceedings, Government of Kerala had acquired the said property for Greater Cochin Development Authority (GCDA). Subsequently, vide order dated 03.11.1994, Land Tribunal, Ernakulam, allowed the O.A. and found that late Krishnan was Kudikidappukaran with respect to 3 cents of land. He was also in possession of another 4.5 cents of land on the southern side of the aforesaid property. The said property is lying in such a form that it cannot be used by anyone else other than the writ petitioner. Hence, the writ petitioner submitted a representation dated 05.09.2007 expressing

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his willingness to purchase the said property at the prevailing market rate. The said representation was on the records of the respondent as file No:6949-PL1-15. Recently, GCDA had auctioned the adjacent land. One Saju Kunnath has purchased the said property on a sale consideration of Rs.12,30,000/- per cent. Considering the request of the writ petitioner, the Executive Committee of GCDA had resolved to convey the said property to the writ petitioner as per Exhibit-P5 decision dated 18.05.2016. Even after 3 years of Exhibit-P5 decision, the property is not assigned to the petitioner. For the past 15 years, writ petitioner is walking behind the respondent to get the property conveyed to him. In such circumstances, he has approached this Court for the following relief:

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“Issue a writ of mandamus of such other appropriate writ, order or direction, directing the respondent to comply with Exhibit-P5 decision dated 18.05.2016 and convey 4.5 cents of property to the petitioner, within the time frame that may be fixed by this Court.”

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After considering the rival submissions and material on record, a

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learned single Judge of this Court disposed of the writ petition as hereunder:

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“The petitioner, P.K. Ashokan, applied for assignment of 4.5 cents of land belonged to Greater Cochin Development Authority (GCDA). The GCDA decided to assign the land as per the decision produced

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as Ext.P5, on the market value fixed by the District Collector. Thereafter a decision was taken to cancel the decision to assign the land for the reason that there are vigilance cases and complaints pending against the GCDA.

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The petitioner has a case that the land in question cannot be used by any person other than the petitioner. It appears that on account of this fact, the GCDA has decided to give the land to the petitioner. It is to be noted that the adjacent land was already sold in auction to one Sri. Saju Kunnath. The petitioner prays that the land in question should be assigned to him at the same rate as fixed in the case of Sri. Saju Kunnath.

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The petitioner cannot decide the consideration payable for assignment. The District Collector is the competent authority to decide the market value applicable for assigning the land.

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The District Collector, Ernakulam shall take a decision in regard to the market value of the land to be assigned within a period of two months. Thereafter, the GCDA, based on the market value fixed by the District Collector, shall assign the land to the petitioner on payment of the said market value. Merely because complaints are pending and vigilance enquiry is ordered, it cannot be a reason to withhold the decision taken in the matter especially when there are no vigilance cases and complaints in regard to this particular land.”

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Being aggrieved, Greater Cochin Development Authority (GCDA)

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and its Secretary have filed the instant writ appeal, contending that the respondent is in unauthorized possession of the 7.76 cents of land. It is further contended that by Exhibit-R(1) Resolution No.189/2018-19, passed on 24.12.2018, the Executive Committee of GCDA has decided that bits of land owned by GCDA should not be sold since there are vigilance cases, complaints and audit objections with respect to the assignment of land under various schemes undertaken by GCDA. It is finally contended that the impugned judgment was passed without considering the fact that the 7.76 cents of property is owned by the authority and the respondent has encroached the said land (unauthorized occupant).

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Apart from the above, Mr. Vipin P. Varghese, learned counsel for the appellants, submitted that the subject land, permitted to be assigned in favour of the writ petitioner, is required by GCDA. On the above submission, we perused the counter affidavit filed by the GCDA before the writ court. Paragraphs 3 and 4 of the said counter affidavit are extracted hereunder:

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“3. The total extent of property in Sy. No.1044/9 of Ernakulam Village was acquired as per LAC 143/81, award 113/83 by Government for Elamkulam West Extension DTP Scheme under GCDA and handed over to GCDA. The said extent of land was owned by “His Eminence Arch Bishop of Ernakulam and GCDA had deposited the amount for acquiring the said land and after

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clearing all the liabilities of Kudikidappu/rent, the said extent of land was handed over to GCDA by Tahsildar, Land acquisition. The compensation was also received by the Eminence Arch Bishop including this land also. In Exhibit-P1 judgment this respondent is not a party. But till date no purchase certificate has been produced before this authority. Smt. Gouri Krishnan was a tenant in the said land and also GCDA had no right to give kudikidappu in the above acquired land (Govt. Property) and authority can consider them as unauthorised occupant.

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It is further contended that the Executive Committee on 18.5.2016 had taken Exhibit-P5 decision and intimated to Tahsildar, Land Acquisition. But, the Executive Committee again, as per Exhibit-R(1) Resolution No.189/18-19 on 24.12.2018 decided not to sell bits of land owned by GCDA, since there is vigilance cases, complaints and audit objection are pending in connection with the assignment of land under different schemes under GCDA. Therefore, this respondent is not in a position to implement Exhibit-P5 decision.”

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When attention of Mr. Vipin P. Varghese, learned counsel for the appellants, was invited to the resolution dated 24.12.2018 [Exhibit-R(1)], wherein the only reason stated is that on account of certain investigation in some vigilance cases, complaints, and audit objection, in connection with the assignment of land under different schemes under GCDA, is pending, and nowhere in the counter affidavit, the appellants have stated that the subject land is required, the learned counsel submitted that he

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has been orally instructed to say so.

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It is well known that an order can stand or fall, for the reasons contained therein and it cannot be supported by any counter affidavit. Reference can be made to few decisions.

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(i) In Mohinder Singh Gill and Another v. Chief Election Commissioner, New Delhi and Others reported in (1978) 1 SCC 405, the Hon'ble Supreme Court held thus:

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“8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Commissioner of Police,

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Bombay v. Gordhandas Bhanji (AIR 1952 SC 16):

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"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in Ms mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."

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We must, in limine, state that-anticipating our decision on the blanket ban on litigative interference during the process of the election, clamped down by Article 329(b) of the Constitution-we do not propose to enquire into or pronounce

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upon the factual complex or the lesser legal tangles, but only narrate the necessary circumstances of the case to get a hang of the major issues which we intend adjudicating. Moreover, the scope of any actual investigation in the event of controversion in any petition under Article 226 is ordinarily limited and we have before us an appeal from the High Court dismissing a petition under Article 226 on the score that such a proceeding is constitutionally out of bounds for any court, having regard to the mandatory embargo in Article 329(b). We should not, except in exceptional circumstances, breach the recognised, though not inflexible, boundaries of Article 226 sitting in appeal, even assuming the maintainability of such a petition. Indeed, we should have expected the High Court to have considered the basic jurisdictional issue first, and not last as it did, and avoided sallying forth into a discussion and decision on the merits, self-contradicting its own holding that it had no jurisdiction even to entertain the petition. The learned Judges observed :

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"It is true that the submission at serial No. 3 above in fact relates to the preliminary objection urged on behalf of respondents 1 and 3 and should normally have been dealt with & St but since the contentions of the parties on submission No.1 are inter-mixed with the interpretation of Article 329(b) of the Constitution, we thought it proper to deal with them in the order in which they have been made."

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This is hardly a convincing alibi for the extensive per incuriam examination of facts and law gratuitously made by the Division Bench of the High Court, thereby generating apprehensions in the appellant's mind that not only is his petition not maintainable but he has been damned by damaging findings on the merits. We make it unmistakably

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plain that the election court hearing the dispute on the same subject under section 98 of the R.P. Act, 1951 (for short, the Act) shall not be moved by expressions of opinion on the merits made by the Delhi High Court while dismissing the writ petition. An obiter binds none, not even the author, and obliteration of findings rendered in supererogation must allay the appellant's apprehensions. This Court is in a better position than the High Court, being competent, under certain circumstances, to declare the law by virtue of its position under Article 141. But, absent such authority or duty, the High Court should have abstained from its generosity. Lest there should be any confusion about possible slants inferred from our synoptic statements, we clarify that nothing projected in this judgment is intended to be an expression of our opinion even indirectly. The facts have been set out only to serve as a peg to hang three primary constitutional issues which we will formulate a little later.”

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(ii) In State Govt. Houseless Harijan Employees Association v. State of Karnataka and Ors. , [(2001) 1 SCC 610], after considering the decision in Mohinder Singh Gill's case (cited supra), the Hon'ble Supreme Court observed that:

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“48. The basis on which the learned Single Judge dismissed the appellant's writ petition was that there was no approval of the appropriate Government to the acquisition, namely, the absence of the third factor noted above. This was not the ground on which withdrawal from the acquisition had been made and it was not open to the State Government to justify its decision on any other ground.

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Besides, what had been stated in the affidavit of the State-respondents is "the petitioner society has not submitted any housing scheme and as such there could not have been prior approval from the

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Government" In other words, the fact of prior approval has not been denied. What is said is because no housing scheme had been submitted by the appellant" there could not have been prior approval.”

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(iii) In Pavanendra Narayan Verma v. Sanjay Gandhi P.G.I.

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of Medical Sciences and Ors. , (AIR 2002 SC 23), the Hon'ble Apex Court held thus:

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“6. The respondents have submitted that the inquiry was held merely to assess the appellant's fitness for being continued on probation. The respondents claimed to have received various complaints regarding the discharge of the appellant's duties and in order to give the appellant an opportunity of placing the true facts before the respondent the summary inquiry was held so that the suitability of the appellant for being confirmed in the post of Joint Director (Material Management) could be fairly assessed. It was also submitted that the order was not stigmatic nor punitive and that no statement in the counter affidavit would change that position.

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That an affidavit cannot be relied on to improve or supplement an order has been held by a Constitution Bench in Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi (cited supra).

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"...when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise..."

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Equally an order which is otherwise valid cannot be invalidated by reason of any statement in any affidavit seeking to justify the order. This is also what was held in State of Uttar Pradesh v. Kaushal Kumar Shukla (supra):

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"The allegations made against the respondent contained in the counter-affidavit by way of a defence filed on behalf of the appellants also do not change the nature and character of the order of termination."

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(iv) In Union of India (UOI) and Ors. v. G.T.C. Industries Limited, Bombay reported in (2003) 5 SCC 106, the Hon'ble Apex Court held thus:

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“14. Counsel for the appellants failed to displace the finding recorded by the High Court on this point. Contention of the counsel for the Union of India that the order of the Collector should be sustained by ignoring the submissions/statements of Shri Sailo as there was other sufficient material on record to sustain and justify the said order cannot be accepted. it may not be possible for us to separate or disentangle the submissions of Shri Sailo from other material evidence on record. it is well settled that a quasi-judicial order has to be judged on the basis of reasoning contained therein and not on the basis of pleas put forward by the person seeking to sustain the order in its counter affidavit or oral arguments before the Court.”

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(v) In State of Punjab and Ors. v. Bandeep Singh & Ors.

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reported in (2016) 1 SCC 724, at paragraph (4), the Hon'ble Supreme Court held thus:

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“4. There can be no gainsaying that every decision of an administrative or executive nature must be a composite and self sustaining one, in that it should contain all the reasons which prevailed on the official taking the decision to arrive at his conclusion. It is beyond cavil that any Authority cannot be permitted to travel beyond the stand adopted and expressed by it in the impugned action.......”

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(vi) In United Air Travel Services v. Union of India (UOI)

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reported in (2018) 8 SCC 141, the respondent therein made an attempt to justify the order of disqualification, which was not stated in the latter. After considering the decision in Mohinder Singh Gill 's case (cited supra), the Hon'ble Supreme Court repelled the said contention. At paragraphs 9, 10, 11 and 12, the Hon'ble Apex Court observed thus:

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“9. A bare perusal of the aforesaid letter would show

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that the reason cited for disqualification was noncompliance with the very clauses of which exemption had been granted to the petitioners.

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The learned Additional Solicitor General appearing for the respondents could not dispute the aforesaid position but sought to canvas that the reasons were wrongly communicated in the rejection letter, and there was actually, some other reason for the rejection. The aforesaid plea can hardly be countenanced in view of the reasons referred to and communicated.

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The learned counsel for the petitioner has, thus, rightly drawn our attention to the Constitution Bench judgment of this Court in Mohinder Singh Gill v. Anr. v. The Chief Election Commissioner, New Delhi and Ors. (1978) 1 SCC 405 to submit that such a plea cannot be accepted. We may note that this is a well settled legal position in many judicial pronouncements of this Court, but it is not necessary to revert to the same............

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Orders are not like old wine becoming better as they grow older.”

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The aforesaid legal position, thus, makes the stand of the respondent unsustainable, resulting in quashing of the impugned letters of rejection.”

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In accordance with Exhibit-P4 legal opinion dated 15.02.2016,

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the Executive Committee of GCDA, as per Exhibit-P5 minutes

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No.18/2016-17 recorded in their meeting on 18.05.2016, had decided to

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assign the said property to the writ petitioner. Said resolution reads thus:

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“ Decision of the Exe. Committee

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File No : 5209/Estate/Al/15/GCDA Date : 18/05/2016 Decision No: 18/2016-17

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Agenda note was read over. It is decided to submit explanation/reply to Tahsildar, to collect along with interest the amount spent for Ponnumvila (premium price for land acquisition) procedures on 3 cents out of the property except the path, and to hand over the remaining landed property by drafting document and collecting the price being auctioned for by GCDA recently or the price fixed by the Collector, whichever is higher.

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Sd/Seal Sd/Secretary Chairman”

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The subsequent resolution Exhibit-R(1) dated 24.12.2018 is

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extracted hereunder:

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“ Decision of the Exe. Committee

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File No : 673/Estate B1/16/GCDA Date : 24/12/18 Decision No: 189/2018-19

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In the circumstances wherein Vigilance cases, complaints and Audit references are pending/prevailing regarding the sale of landed property by the Authority under different schemes, it is decided that sale of bit lands should not be conducted anymore for the time being. Therefore, it is resolved to cancel the Exe. Committee decision No. 1/201617 dated 18-05-2016 sanctioning the 4.3 cents landed property owned by the Authority, which is comprised in Rameswaram Village Survey No. 268/2,3, in favour of Shri. M.M. Surendran.

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Sd/Seal Sd/Secretary Chairman”

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Perusal of both the resolutions makes it clear that it was never the case of the appellants that the respondent has encroached upon the property belonging to GCDA. Nowhere in the writ petition or in the instant appeal, there is a pleading by the appellants that the subject land is required. Without any pleadings and supporting documents, the oral submission made by Mr. Vipin P. Varghese, learned counsel for the appellants, does not deserve any consideration.

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On the facts and circumstances of this case, fresh facts cannot be permitted to be raised in a writ appeal. On the said aspect, let us consider a few decisions.

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(i) In Chitturi Subbanna v. Kudapa Subbanna and Ors. [AIR 1965 SC 1325], the Hon'ble Supreme Court observed thus:

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“77. This is not an isolated decision, nor indeed does it lay down a novel rule of practice. It is right and proper that parties to a litigation should not be permitted to set up the grounds of their claims or defence in driblets or at different stages and embarrass the opponents. Considerations of public policy require that a successful party should not, at the appellate stage, be faced with new grounds of attack after having repulsed the original ones. The proper function of an appellate court is to correct an error in the judgment or proceedings of the court below and not to adjudicate upon a different kind of dispute - a dispute that was never taken before the court below. It is only in exceptional cases that the appellate court may in its discretion allow a new point to be raised before it provided there are good grounds for allowing it to be raised and no prejudice is caused thereby to the opponent of the party permitted to raise such point. But where the appellate court in exercise of its discretion refuses leave to a party to raise such a point there is little scope for any indulgence being shown by this Court.”

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(ii) In Greater Mohali Area Development Authority and Ors. v.

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Manju Jain and Ors. , reported in (2010) 9 SCC 157, the Hon'ble Supreme Court held thus:

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“26. The Respondent 1 raised the plea of nonreceipt of the letter of allotment first time before the High Court. Even if it is assumed that it is correct, the question does arise as to whether such a new plea on facts could be agitated before the writ court. It is a settled legal proposition that a pure question of law can be raised at any time of the proceedings but a question of fact which requires investigation and inquiry, and for which no factual foundation has been laid by a party before the court or tribunal below, cannot be allowed to be agitated in the writ petition. If the writ court for some compelling circumstances desires to entertain a new factual plea the court must give due opportunity to the opposite party to controvert the same and adduce the evidence to substantiate its pleadings. Thus, it is not permissible for the High Court to consider a new case on facts or mixed question of fact and law which was not the case of the parties before the court or tribunal below. [Vide State of U.P. v. Dr. Anupam Gupta (AIR 1992 SC 932), Ram Kumar Agarwal v. Thawar Das (D) through Lrs. (1999) 7 SCC 303, Vasantha Viswanathan and Ors. v. V.K. Elayalwar and Ors. (2001) 8 SCC 133; Anup Kumar Kundu v. Sudip Charan Chakraborty (2006) 6 SC 666; Tirupati Jute Industries (P) Ltd. v. State of West Bengal (2009) 14 SCC 406 and Sanghvi Reconditioners (P) Ltd. v. Union of India and Ors. (2010) 2 SCC 733.]

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In the instant case, as the new plea on fact has been raised first time before the High Court it could not have been entertained, particularly in the manner the High Court has dealt with as no opportunity of controverting the same had been given to the Appellants. More so, the High Court, instead of examining the case in the correct perspective, proceeded in haste, which itself amounts to arbitrariness. (Vide Fuljit Kaur v. State of Punjab [AIR 2010 SC 1237])”

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What has been decided in resolution Exhibit-R(1) dated

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24.12.2018 is that since there are vigilance cases, complaints and Audit

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references pending regarding the sale of landed property by the authority

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under different schemes, it was decided that sale of bit lands should not

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be conducted anymore, for the time being.

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After considering the decisions taken, writ court has rightly held that merely because complaints are pending and vigilance enquiry is ordered, it cannot be a reason to withhold the decision taken in the matter, especially when, there are no vigilance cases and complaints in regard to the particular land.

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In the light of the above discussion and decisions, we are of the view that the appellants have not made out a case for reversal of the judgment in W.P.(C) No.4783/2019 dated 20.8.2019. Writ appeal is dismissed. Appellants are directed to act, in terms of the impugned judgment.

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Sd/- S.Manikumar Chief Justice

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Sd/-

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Shaji P.Chaly Judge

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vpv

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/true copy/

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P.A. to Judge