InfoCom Software Pvt. Ltd. and others v. State of Kerala and Smart City (Kochi) Infrastructure Pvt. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 20TH DAY OF AUGUST 2020 / 29TH SRAVANA, 1942** ## **WP(C).No.11935 OF 2020(N)** ## **- PETITIONERS :** - **1 M/S.INFOCOM SOFTWARE PVT.LTD. C114 GROUND FLOOR SOUTHERN WING, SMART CITY, KAKKANAD, KOCHI, KERALA-682 042, REPRESENTED BY ITS MANAGING DIRECTOR ARUN SOMAN., S/O.S.G.SOMAN, RESIDING AT 4A, APPLE HEIGHTS, VAZHAKKALA, KAKKANAD, KOCHI.** - **2 M/S. LEGACIT INFOTECH PVT.LTD., C 110, FIRST FLOOR, B WING, SMART CITY PHASE I, KAKKANAD-682 030, REPRESENTED BY ITS DIRECTOR SRI.SIRJITH, S/O.RAVINDRAN, RESIDING AT KUNNEL HOUSE, EZHUPUNNA SOUTH, CHERTHALA, ALAPPUZHA.** - **3 M/S. WEFT TECHNOLOGIES (OPC) PVT.LTD., 202, 2ND FLOOR, A BLOCK, SMART CITY, KAKKANAD-682 030, REPRESENTED BY ITS DIRECTOR,NIDHIN RAVI, S/O.E.M.RAVINDRAN, RESIDING AT 65, ELAVANAPARAMBIL HOUSE, PULIKKAKADAVU ROAD, P.O.CHERUVALOOR, KORATTY, THRISSUR-682 321.** - **4 M/S. NAICO INFORMATION TECHNOLOGY SERVICES PVT.LTD., OFFICE NO.0405B, 4TH FLOOR, SCK 01, SMARTCITY, KOCHI, SEZ, KAKKANAD, KOXHI-682 042, REPRESENTED BY ITS MANAGING DIRECTOR NAAZIM C ABDULLA, S/O.ABDULLA RESIDING AT EVRA 75, POYYACHIRA ROAD, CSEZ P.O., KAKKANAD, ERNAKULAM-682 549.** - **5 M/S. LITEBREEZE INFOTECH PVT.LTD., 0405 A, SCK, 01, SMARTCITY, KOCHI, INFOPARK ROAD, KAKKANAD-682 042, REPRESENTED BY ITS MANAGING DIRECTOR AJITH.D., S/O.DINESAN RESIDING AT CHERUPOZHIL HOUSE, MARARIKULAM NORTH P.O., ALAPPUZHA-688 549.** **6 M/S. DYNAMICNEXT TECHNOLOGIES PVT.LTD., OFFICE NO.0214, 2ND FLOOR, BUILDING SCK 01, SMART CITY KOCHI SPECIAL ECONOMIC ZONE, KAKKANAD, KOCHI, ERNAKULAM-682 030, REPRESENTED BY ITS OPERATIONAL MANAGER SRI.JOICE GEORGE, S/O.GEORGE.V.V., FLAT NO.4E, BLUE BRICKS APARTMENT, NILAMPATHINJAMUKAL, KAKKANADU, PIN-682 039.** WP(C).No.11935 OF 2020(N) -: 2 :- **7 M/S. THITS TECHNOLOGIES PRIVATE LIMITED, ROOM NO.B2, 2ND FLOOR, THAPASYA INFOPARK, KAKKANAD, COCHIN-682 042, REPRESENTED BY ITS MANAGING DIRECTOR, MR.JOSHY CYRIAC, S/O.C.L.CYRIAC, B-8, WEST ROCK APARTMENTS, PJ ANTONY ROAD, POTTAKKUZHI, KALOOR-682 012.** **BY ADV. SRI.JOBY CYRIAC** ## **- RESPONDENTS :** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS PRINCIPAL SECRETARY,**| ||**DEPARTMENT OF ELECTRONICS AND INFORMATION,**| ||**SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.**| |**2**|**SMART CITY(KOCHI) INFRASTRUCTURE PVT LTD**| ||**SMART CITY PAVILION, BRAMMAPURAM P.O., KOCHI,**| ||**KERALA-682 303, REPRESENTED BY ITS CEO.**| ||**BY ADV. ANURADHA MUKHERJEE**| ||**BY ADV. SRI.SANDEEP GOPALAKRISHNAN**| ||**BY ADV. SMT.JINNU SARA GEORGE**| ||**BY ADV. GYANDRA KUMAR**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 0708-2020, THE COURT ON 20-08-2020 DELIVERED THE FOLLOWING:** WP(C).No.11935 OF 2020(N) -: 3 :- ## **JUDGMENT** ## **Dated this the 20th day of August 2020** This writ petition is filed seeking the following reliefs :- - “(1) Issue a writ of mandamus or any other appropriate writ, order declaring that IT companies operating from Smart City (Kochi) shall be entitled to any privileges, subsidies or concessions as may be applicable or are extended to such companies under the IT policy of the Government from time to time in view of 5.5 of Ext.P1 agreement. - (2) Issue a writ of mandamus or any other appropriate writ, order directing the 1[st] respondent to take appropriate steps to extend the same financial benefits covered by Ext P3 to the petitioners, which are operating from Smart City (Kochi). - (3) Issue a writ of mandamus or any other appropriate writ, order directing the 1[st] respondent to consider and pass appropriate order on Ext.P5 representation after affording an opportunity of being heard to the petitioners either in the same meeting scheduled vide Ext.P7 or any other day that may be fixed by this Hon'ble Court.” 2. Heard the learned counsel for the petitioners and the learned counsel appearing for the 2[nd] respondent. 3. The learned counsel for the petitioners submits that the petitioners have approached the Government submitting Ext.P5 representation. By Ext.P6 judgment, this Court had directed the 1[st] respondent Government to take a decision on Ext.P5 representation preferred by the petitioners therein. It is submitted that the claim raised in Ext.P5 representation preferred by the petitioners is WP(C).No.11935 OF 2020(N) -: 4 :- identical to the claim raised in Ext.P6 judgment and that as such, the 1[st] respondent is duty bound to take a decision on the petitioners' representation as well. It is submitted that pursuant to Ext.P6 judgment, Ext.P7 notice has been issued by the Government to the petitioners therein for hearing and that no orders had been passed on the representation thereafter. It is therefore contended that de hors the submissions made by the 2[nd] respondent with regard to the maintainability of the writ petition as also the fact that the petitioners have approached a civil court against the 2[nd] respondent, the same relief as has been granted in Ext.P6 judgment is liable to be extended in the petitioners' case as well. It is submitted that the contentions with regard to maintainability cannot stand in the way of the consideration of Ext.P5 representation by the State Government. 4. An affidavit has been placed on record by the 2[nd] respondent. It is submitted that the 2[nd] respondent is a private limited company and that the writ petition with the prayers as sought for is not maintainable as against the 2[nd] respondent. It is submitted that Ext.P3 Government Order applies only to Government IT Parks and that the same has specifically not been made applicable to the 2[nd] respondent, which is a private entity and is completely outside the purview of Ext.P3. Moreover, it is submitted that the petitioners in this writ petition have already filed separate suits before the Munsiff WP(C).No.11935 OF 2020(N) -: 5 :- Court - III, Ernakulam and have obtained ex parte orders of injunction as against their eviction from the properties in question. It is therefore contended that the action of the respondents in having approached this Court and on an objection being raised as to the maintainability of the writ petition, having filed civil suits and obtained orders of injunction without informing this Court amounts to forum shopping and that the writ petition is liable to be dismissed on that short ground. 5. The learned counsel for the 2[nd] respondent places reliance on the decisions of the Apex Court in **Union of India (UOI) and Ors** v. **Cipla Ltd. and Ors.** [(2017) 5 SCC 262], **Udyami Evam Khadi Gramodyog Welfare Sanstha and Ors** v. **State of U.P. and Ors.** [(2008) 1 SCC 560] and **M/s Chetak Construction Ltd.** v. **Om Prakash & Ors** [(1998) 4 SCC 577] to contend that the attempt by the petitioners is liable to be interdicted by this Court and that the petitioners cannot seek the discretionary remedy before this Court in the light of their conduct. 6. The learned counsel for the petitioners points out that the prayers raised by the petitioners in this writ petition and the reliefs claimed in the suits before the Munsiff Court are distinct and different and that as such, there is no merit in the allegation of forum WP(C).No.11935 OF 2020(N) -: 6 :- shopping. It is contended that since Ext.P6 judgment has been issued in respect of identically situated petitioners, this Court is duty bound to pass an order in the nature of Ext.P6 in the instant case as well. It is stated that such a relief could not have been prayed before the civil court and no such prayer has been raised as well. It is stated that since the reliefs are distinct and different, the writ petition is liable to be allowed. 7. I have considered the contentions advanced on either side. The specific prayer in the writ petition is to the effect that the petitioners are entitled to the benefit of Ext.P3 Government Order in the light of clause 5.5 of Ext.P1 agreement. It is stated that the financial benefits provided in Ext.P3 are liable to be extended to the petitioners also, who are operating under the 2[nd] respondent. Ext.P5 is a representation preferred before the Government seeking the extension of the financial support provided in Ext.P3 to the petitioners as well. Ext.P5 ends with the following request :- “You are also requested to give appropriate direction to SCK not to take any coercive action against the IT Companies for not paying monthly rent for the Month of April, May, June, 2020 until a decision is taken by your good-self in this representation.” 8. The writ petition was filed on 16.6.2020. The 2[nd] respondent appeared through counsel and sought time to place a WP(C).No.11935 OF 2020(N) -: 7 :- statement on record. The 2[nd] respondent had also raised an issue of maintainability of the writ petition. It is thereafter that an interlocutory application has been filed on 30.7.2020 seeking dismissal of the writ petition with exemplary costs. Along with the I.A., copies of the plaints filed by the petitioners herein before the Munsiff Court - III, Ernakulam as well as the interim orders in one of the suits is produced. The learned counsel for the petitioners does not dispute the fact that after filing of this writ petition, the suits had been filed by the petitioners and interim orders of injunction against eviction of the petitioners had been rendered by the civil court in the said suits. It is evident from the plaints produced by the respondents that the fact that the petitioners had approached this Court has not been mentioned in any of the plaints. The plaints reveal that the very contention of the petitioners is that the 2[nd] respondent is a private limited company incorporated for developing and running self contained knlowledge based special economic zones like IT parks. The specific case in the plaint is to the effect that the petitioners are also entitled to the benefit of the Government Order dated 27.04.2020. The prayers sought for as under :- - “(i) Issue a permanent prohibitory injunction and thereby restrain the defendant and its men and agents from forcefully evicting the Plaintiff from the plaint schedule property without adopting due process of the law. WP(C).No.11935 OF 2020(N) -: 8 :- - (ii) Pass a permanent prohibitory injunction restraining the defendant from terminating or discontinuing any of the services which are essential for running the day to day affairs of the office/ work place of the Plaintiff company including electricity, air condition facility, water supply, network and internet, car park, bike park, access card for new employees and common area for dining, visitor's pass, visitor's park, lighting of common area, lift etc. to the rented premises/plaint schedule property which are being provided presently as per the terms of the deed of sub-lease.” 9. Having considered the contentions advanced, I find that the petitioners approached this Court seeking the consideration of their request for the benefit of Ext.P3 Government Order and thereafter approached the civil court without disclosing the fact of the filing of the writ petition is improper. The 2[nd] respondent had appeared through counsel at the time when the writ petition had come up for admission and had opposed the admission of the same raising an issue of maintainability. It is apparently thereafter that the suits have been filed without disclosing that this writ petition had already been preferred by the petitioners before this Court. Though the learned counsel for the petitioners submits that the writ petition and the suit are different in nature, from a perusal of the prayers and pleadings in this writ petition as well as the suits filed by the petitioners before the Munsiff Court, I am of the opinion that the WP(C).No.11935 OF 2020(N) -: 9 :- petitioners are not entitled to the reliefs claimed by them from this Court, which exercises discretionary jurisdiction under the Constitution of India. Their action in having approached the civil court and obtained orders without disclosing that this writ petition had already been filed before this Court is clearly an abuse of process of court. The conduct of the petitioners disentitles them to seek discretionary relief before this Court. In the result, this writ petition is dismissed. However, in view of the fact that the writ petition had not been admitted and in view of the fact that the petitioners had pleaded financial difficulties as a reason for the inability to pay the amounts due to the 2[nd] respondent, I refrain from imposing costs. It is made clear that the civil suit shall be decided on merits untrammelled by the observations made in this judgment. **Sd/ANU SIVARAMAN JUDGE** Jvt/11.8.2020 WP(C).No.11935 OF 2020(N) -: 10 :- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE AGREEMENT/LEASE DEED DATED 13.05.2007 ENTERED INTO BETWEEN GOK AND THREE OTHERS INCLUDING SMART CITY (KOCHI) INFRASTRUCTURE PVT.LTD.** - **EXHIBIT P2 TRUE COPY OF THE SUB-LEASE DEED EXECUTED BETWEEN THE 1ST PETITIONER AND THE 2ND RESPONDENT.** - **EXHIBIT P3 TRUE COPY OF THE GO(RT) NO.51/2020/ITD DATED 27.04.2020.** - **EXHIBIT P4 TRUE COPY OF THE JOINT REPRESENTATION DATED 14.05.2020 SUBMITTED BEFORE THE SCK INFRASTRUCTURE PVT.LTD.** - **EXHIBIT P4(a) TRUE COPY OF THE RESPONSE NO.SCK/F17/24/102/20 DATED 18.05.2020.** - **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 29.05.2020 SUBMITTED BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN WPC NO.10536 OF 2020 DATED 28.05.2020.** - **EXHIBIT P7 TRUE COPY OF THE COMMUNICATION NO.E & ITA1/59/2020/E & ITD DATED 15.06.2020.** ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R2-A : TRUE COPY OF THE PLAINT IN O.S.No.575/2020 FILED BY THE WRIT PETITIONER No.1 BEFORE THE HON'BLE MUNSIFF COURTIII, ERNAKULAM.** **EXHIBIT R2-A(i) : TRUE COPY OF THE PLAINT IN O.S.No.572/2020 FILED BY THE WRIT PETITIONER No.2 BEFORE THE HON'BLE MUNSIFF COURT-III AT ERNAKULAM.** **EXHIBIT R2-A(ii) : TRUE COPY OF THE PLAINT IN O.S.No.573/2020 FILED BY THE WRIT PETITIONER No.3 BEFORE THE HON'BLE MUNSIFF COURT-III AT ERNAKULAM.** **EXHIBIT R2-A(iii) : TRUE COPY OF THE PLAINT IN O.S.No.574/2020 FILED BY THE WRIT PETITIONER No.5 BEFORE THE HON'BLE MUNSIFF COURT-III AT ERNAKULAM.** WP(C).No.11935 OF 2020(N) -: 11 :- **EXHIBIT A(iv) : TRUE COPY OF THE PLAINT IN O.S.No.569/2020 FILED BY THE WRIT PETITIONER No.6 BEFORE THE HON'BLE MUNSIFF COURT-III AT ERNAKULAM.** **EXHIBIT R2-B : TRUE COPY OF THE INTERIM ORDER IN O.S.No.569/2020 PASSED BY THE HON'BLE MUNSIFF COURT-III AT ERNAKULAM ON JULY 17, 2020.** //TRUE COPY// P.A. TO JUDGE