A.R. Jaganathan v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **MONDAY, THE 18TH DAY OF JANUARY 2016/28TH POUSHA, 1937** ## **WP(C).No. 10602 of 2012 (A)** **----------------------------** **PETITIONER:** ## **-------------------** **A.R.JAGANATHAN, AGED 53 YEARS S/O LATE RAMASWAMY MOOPANAR, RAVI NIVAS T.C.39/1352 (2), MARKET ROAD, CHALAI THIRUVANANTHAPURAM-695036.** **BY ADVS.SRI.C.UNNIKRISHNAN (KOLLAM) SRI.D.JAYAKRISHNAN** **RESPONDENT(S): -------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY THE CHIEF SECRETARY GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THIRUVANANTHAPURM DEVELOPMENT AUTHORITY (TRIDA), JAYA MANSION, VAZHUTHACAUD, SASTHAMANGALAM P.O. THIRUVANANTHAPURAM-695010.** ## **3. STATE BANK OF INDIA,** - **STRESSED ASSETS RECOVERY BRANCH CHILD WELFARE COMPLEX, L.M.S.COMPOUND THIRUVANANTHAPURAM-695033 REPRESENTED BY ITS CHIEF MANAGER (AUTHORISED OFFICER).** **R1 BY GOVERNMENT PLEADER SRI.V.K.RAFEEQUE R2 BY ADV. SRI.M.RAJAGOPALAN NAIR, SC, TRIDA R3 BY ADV. SRI.P.V.SURENDRANATH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 10602 of 2012 (A)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS:** **EXHIBIT P1: TRUE COPY OF THE JUDGMENT DATED 17.2.1997 IN O.P 20007/1995 (F) OF THIS HONOURABLE COURT.** - **EXHIBIT P2: TRUE COPY OF JUDGMENT DATED 29.9.1999 IN W.A.NO.1063/1997.** **EXHIBIT P3: TRUE COPY OF THE JUDGMENT DATED 1.4.2002 IN O.P.NO.2228/ 2002 (M).** - **EXHIBIT P4: TRUE COPY OF THE ORDER DATED 11.6.2003 IN O.P.NO.10861/2003.** **EXHIBIT P5: TRUE COPY OF THE SAID PERMIT DATED 25.10.2006 FOR CONSTRUCTION.** **EXHIBIT P6: TRUE COPY OF THE NOTICE DATED 24.8.2009 FROM TRIDA.** - **EXHIBIT P7: TRUE COPY OF THE OBJECTION DATED 23.9.2009 FILED BEFORE THE DISTRICT COLLECTOR, THIRUVANANTHPURAM.** - **EXHIBIT P8: TRUE COPY OF THE SAID LETTER DATED 24.11.2009 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P9: TRUE COPY OF THE GAZETTE EXTRAORDINARY NO.2761 DATED 2.12.2010.** - **EXHIBIT P10: TRUE COPY OF THE NOTICE DATED 20.4.2011 1ST AND 2ND RESPONDENT ISSUED TO THE PETITIONER.** **EXHIBIT P11: TRUE COPY OF THE OBJECTION DATED 22.5.2011 FILED BY THE PETITIONER.** - **EXHIBIT P12: TRUE COPY OF THE NOTICE DATED 24.2.2012 UNDER S.13(2) OF THE SARFAESI.** - **EXHIBIT P13: TRUE COPY OF THE REPLY DATED 12.4.2012 SUBMITTED BY THE PETITIONER BEFORE THE BANK.** - **EXHIBIT P14: TRUE COPY OF THE REPLY DATED 18.4.2012 ISSUED by the 3RD RESPONDENT TO THE PETITIONER.** **EXHIBIT P15: TRUE COPY OF THE POSSESSION NOTICE DATED 29.07.2015 ISSUED BY THE BANK.** ## **RESPONDENTS' EXHIBITS : NIL** **//TRUE COPY//** **P.A. TO JUDGE** **STK** **K. HARILAL, J.** **= = = = = = = = = = = = = = = = = = W.P. (C) No.10602 of 2012** **- - - - - - - - - -- - - - - - - - - - -** Dated this the 18th day of January, 2016 ## **J U D G M E N T** The petitioner is a land owner under the acquisition proceedings initiated by the 2[nd] respondent. According to him, he has title and absolute possession over 34 cents of landed property and building thereon comprised in Survey No.1194(A) of Manacaud Village, Thiruvananthapuram. In the year 1977, one acre of property, which belonged to the family of the petitioner was acquired by the 1[st] respondent for the construction of National Highway at Attakkulangara, Killippalam. The petitioner challenged the land acquisition proceedings before this Court, on the ground that the entire proceedings have lapsed since the District Collector failed to draw the award within the statutory ## **W.P.(C) No.10602 of 2012** **-: 2 :-** period. As per Ext.P1 judgment, this Court declared that the land acquisition proceeding have been lapsed due to non-publication of the award within the statutory period. That apart, Ext.P1 judgment was confirmed by the Division Bench, as per Ext.P2 judgment. 2. Later, a fresh requisition was forwarded to the District Collector and Section 4(1) Notification was published on 08.05.2009. DLPC was convened and the District Collector requested the 2[nd] respondent to release funds for passing the award. The 2[nd] respondent could not deposit the amount for passing the award, due to pendency of this writ petition, challenging the land acquisition proceedings. Thereby, the land acquisition proceedings had lapsed again. 3. Subsequently, the 2[nd] respondent again forwarded a fresh requisition to the District ## **W.P.(C) No.10602 of 2012** **-: 3 :-** Collector on 09.06.2015 and the 4(1) Notification was also effected. After Ext.P2 judgment, passed by the Division Bench of this Court, the petitioner divided his property into two plots, i.e., 15 and 19 cents. Thereupon, he submitted a plan for constructing a residential building in the 15 cents in Survey No.1194 of Manacaud Village, which was approved on 26.09.2001. Thereafter, the petitioner proceeded with construction of the building. The petitioner availed a loan of Rs.50,00,000/- from the State Bank of India, Karamana Branch for the construction of the commercial building, in the said 19 cents of land situated in Survey No.1194(A) of Manacaud Village, by mortgaging the said land. Thus, the petitioner has completed the construction of the building in the above said property. 4. While so, to his utter shock and dismay, he was served with Ext.P6 notice, intimating that the **W.P.(C) No.10602 of 2012** **-: 4 :-** land in Survey No.1194 of Manacaud Village is intended to be acquired for the purpose of the vegetable market at Chalai at the instance of the 2[nd] respondent. Immediately, the petitioner filed Ext.P7 objection, before the District Collector and all the authorities concerned, against the acquisition of his property, which was intended earlier twice and failed due to the default on the part of the respondents. Thereupon, the 2[nd] respondent sent Ext.P8 letter, reiterating the stand that the entire land is required for the development of vegetable market. As a result of the above action, the petitioner was not able to earn any revenue, by renting his building, as expected and this resulted in huge loss of revenue and thereby, he became a defaulter in repayment of the loan to the bank. However, 1[st] and 2[nd] respondents, after a period of two or more years from the date of Ext.P6 have again ## **W.P.(C) No.10602 of 2012** ## **-: 5 :-** published Ext.P9 Extraordinary Gazette notification No.2761 dated 02.12.2010, for acquiring the property of the petitioner. Then, the petitioner filed Ext.P11 objection. In the meantime, the 3[rd] respondent bank served notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI), calling upon the petitioner to pay Rs.64,47,105/-. There it was made clear that the bank intends to take possession of the land mortgaged to it, if the amount demanded is not repaid immediately. The petitioner sent Ext.P13 reply, stating all the relevant facts and his inability to pay the amount within a short time. However, the 3[rd] respondent sent Ext.P14 reply, stating that they will not stop the proceedings against the property unless the amount is paid. It is with this circumstances, the petitioner filed ## **W.P.(C) No.10602 of 2012** ## **-: 6 :-** ## this writ petition, with the following prayers. - _I. Issue a writ of certiorari or other appropriate writ, order or direction quashing Exhibit P9 and P12._ - _II.Declare that the present land acquisition proceeding against the petitioner in its 4[th] time is nothing but sheer harassment for decades, malafide and colourable exercise of power and therefore liable to be quashed._ - _III.Issue a writ of mandamus directing the 3[rd] respondent not to proceed with Exbt.P12 and allow the petitioner to clear the loan by renting out the commercial building after the quashing of land acquisition proceeding or if ultimately acquisition takes place, allow the petitioner to clear the loan from the payments received from the respondents 1 and 2._ - _IV. Issue such other writ or order as this Honourable Court deems fit and proper in the facts and circumstances of this case._ 5. The 2[nd] respondent filed a counter statement, contending that the petitioner's land comprised in Survey No.1194(A) of Manacaud Village is required for public purpose i.e., development of the Chalai Vegetable Market and shopping complex, as envisaged in the detailed Town Planning Scheme for ## **W.P.(C) No.10602 of 2012** ## **-: 7 :-** Chalai. It is submitted that the detailed Town Planning Scheme was sanctioned by the Government, after complying all the provisions of the Town Planning Act and hearing objections and suggestions. Considering the request of the petitioner, the 2[nd] respondent has already exempted 19 cents of land in which petitioner's house and commercial building are situated. The left out portion is required for the development of 21 Meter road envisaged in the scheme. The petitioner cannot contend that his land cannot be acquired for the above public purpose in accordance with law in view of the statutory right conferred on the 2[nd] respondent under the Land acquisition Act, 1994. Now, fresh land acquisition proceedings are being initiated exempting the house and building of the petitioner. There is no procedural irregularity, as the detailed Town Planning Scheme was sanctioned by the Government, ## **W.P.(C) No.10602 of 2012** ## **-: 8 :-** after complying all provisions of the Town Planning Act, including hearing objections and suggestions. It is also submitted that the petitioner availed a loan, mortgaging the above property, after having full knowledge that the property is required for public purpose and the same will be acquired. The respondents started fresh land acquisition proceedings in accordance with law, after Exts.P1 and P2 judgments. The respondents continued with the land acquisition proceedings since the land is earmarked for the development of Chalai Vegetable Market and Shopping Complex, as envisaged in the detailed Town Planning Scheme for Chalai. The petitioner's property is required for the development of 21 metre road envisaged in the Town Planning Scheme and the copy of the alignment of the 21 metre wide road, in the sanctioned detailed Town Planning Scheme, for Chalai area is produced and **W.P.(C) No.10602 of 2012** **-: 9 :-** marked as R2(b) and the copy of the plan of the project area of Chalai Scheme, showing the lie of the land owned by the petitioner is produced, as R2 (a). 6. Considering the request of the petitioner, the 2[nd] respondent changed the alignment by shifting the road by 8 meters northwards saving the existing building to the maximum extent possible and thereby 19 cents of land including the building was exempted from acquisition. The new alignment is approved by the Government, as per G.O.(MS):84/2014/LSGD dated 19.05.2014. The copy of the new alignment prepared considering the request of the petitioner is produced, as R2(c). According to the respondents, without acquiring the petitioner's land the development of the road, as per the project is not possible and the same will be stalled, if the request is allowed. ## **W.P.(C) No.10602 of 2012** ## **-: 10 :-** 7. Heard the learned counsel for the petitioner and the learned counsel appearing for the 2[nd] respondent. 8. In view of the averments in this writ petition and contentions raised by the 2[nd] respondent, in the counter affidavit, the short point that arises for consideration is whether there is any reason or circumstance, warranting interference with the present acquisition proceedings initiated by 1[st] and 2[nd] respondents or the proceedings initiated by the 3[rd] respondent, under the SARFAESI Act, to realise the amount availed of by the petitioner, from the 3[rd] respondent. 9. Going by the proceedings and admitted facts, it is seen that earlier the attempt to acquire the aforesaid land was failed by the interference of this Court, by Exts.P1 and P2. But, ## **W.P.(C) No.10602 of 2012** **-: 11 :-** in those judgments also, the right of respondents 1 and 2 to proceed with fresh acquisition proceedings was protected and reserved. In view of the said saving clause, I do not find any illegality or arbitrariness in initiating the present acquisition proceedings against the petitioner. The petitioner has no case that an opportunity of being heard was not given to him, during the course of proceedings. His only grievance is that his entire extent of 34 cents of property is liable to be exempted from the acquisition proceedings, considering his inconvenience and hardship. 10. It stands admitted that on the request of the petitioner, out of 34 cents, 19 cents and entire buildings thereon was exempted from the acquisition proceedings and the remaining property alone is subjected to the present acquisition proceedings. So also, the 2[nd] respondent has specifically stated ## **W.P.(C) No.10602 of 2012** ## **-: 12 :-** that considering the request from the petitioner, the 2[nd] respondent changed the alignment, by shifting the road by 8 meters northwards, saving the existing building to the maximum extent possible and thereby 19 cents of land including the building was exempted from acquisition and the new alignment is approved by the Government, by order dated 19.05.2014. No challenge was raised against Government Order G.O. (MS) No.84/2014/LSGD dated 19.05.2014, by which the proceedings under the Scheme, has attained its finality. The petitioner has no case that the acquisition proceedings are initiated for any purpose other than public purpose. Therefore, the purpose of the acquisition is also not challenged by the petitioner. On the other hand, the personal loss and inconvenience alone are the grounds raised in this writ petition. I do not find that those reasons are sufficient grounds to challenge the ## **W.P.(C) No.10602 of 2012** ## **-: 13 :-** acquisition proceedings initiated under law for the public purpose, and the 1[st] relief sought for cannot be allowed on the grounds raised in this writ petition. 11. Coming to the reliefs sought for against the 3[rd] respondent, I am of the opinion that the petitioner has availed of a huge loan of Rs.10,03,00,000/-, by way of mortgaging his property. The loan transaction is governed by the terms and conditions in the mortgage agreement and the rights and liabilities of the parties are confined to the same only. As regards the proceedings initiated under the SARFAESI Act, the petitioner has no case that, that proceedings are vitiated by irregularity or impropriety. More importantly, the petitioner has not sought for statutory remedies provided under the SARFAESI Act. Though, the availability of alternative remedy would ## **W.P.(C) No.10602 of 2012** **-: 14 :-** not be a bar to entertain writ petition, the rule of exclusion of writ jurisdiction, on availability of alternative and efficacious statutory remedy is a rule of discretion only. The court in extraordinary circumstances, may exercise the power, if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted. I do not find any such extraordinary circumstances, for the invocation of writ jurisdiction, despite the existence of alternative remedy. The above view is is supported by the decisions of the Apex Court in _**State of H.P. v. Gujarat Ambuja Cement Ltd. and Another**_ [2005(6) SCC 499 and _**K.S. Rashid v. Income Tax Investigation Commission**_ [AIR 1954 SC 207]. 12. In the above view, this Court declines jurisdiction and there is no circumstance, warranting interference under Article 226 of the **W.P.(C) No.10602 of 2012** **-: 15 :-** Constitution of India and none of the reliefs sought for are allowable under the writ jurisdiction. This writ petition will stand dismissed accordingly. Sd/- DST **K. HARILAL,** //True copy// P.A. To Judge **JUDGE**