Sajad A. and Shyja v Vizhinjam International Sea Port Limited and Adani Vizhinjam Port Private Limited

_**OP(C).191/21**_ 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 6[TH] DAY OF JANUARY 2022 / 16TH POUSHA, 1943 OP(C) NO. 191 OF 2021** **AGAINST THE ORDER/JUDGMENT IN OS 798/2019 OF I ADDITIONAL MUNSIFF COURT ,NEYYATTINKARA CMA 7/2020 OF SUB COURT,NEYYATTINKARA** ## **PETITIONER/S:** 1 SAJAD.A., AGED 53 YEARS, S/O. AHAMMED KHAN, ARABIAN HOUSE, MULLORTHOTTAM, VIZHINJAM VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. 2 SHYJA, AGED 44 YEARS W/O. SAJAD.A., ARABIAN HOUSE, MULLORTHOTTAM, VIZHINJAM VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADVS. G.P.SHINOD SRI.GOVIND PADMANAABHAN SHRI.AJIT G ANJARLEKAR ## **RESPONDENT/S:** 1 MANAGING DIRECTOR VIZHINJAM INTERNATIONAL SEA PORT LIMITED VISSIL OFFICE, 9TH FLOOR, KSRTC, TERMINAL COMPLEX, THAMPANOOR, THIRUVANANTHAPURAM 695 001. 2 PROJECT MANAGER, ADANI VIZHINJAM PORT PRIVATE LIMITED, VAZHUTHAVAUD, THIRUVANANTHAPURAM 695 014. BY ADVS. SRI.ROSHEN.D.ALEXANDER _**OP(C).191/21**_ 2 SMT.TINA ALEX THOMAS SHRI.HARIMOHAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23.11.2021, THE COURT ON 06.01.2022 DELIVERED THE FOLLOWING: _**OP(C).191/21**_ 3 ## **V.G.ARUN, J.** ## **----------------------------------------------O.P(C).No. 191 of 2021 ----------------------------------------------Dated this the 6[th] day of January, 2022** ## **JUDGMENT** Petitioners are the plaintiffs in O.S.No. 798 of 2019 on the files of the Munsiff's Court, Neyyattinkara. Briefly stated, the averments in the plaint are to the following effect; The petitioners are the owners and in possession of plaint A schedule property, an extent of 21 cents of land with buildings thereon, comprised in re-survey No.761/17 in Block No.14 of Vizhinjam Village. The petitioners are conducting a home stay in the property by name 'Karikkathi Beach Resort'. The properties on the west of A schedule and described as B schedule in the plaint, were purchased by the defendants. C schedule road having 4 metres width starting from the Poovar-Mulloor Nagar Temple Road reaches up to plaint A schedule, after passing through B schedule. The petitioners have perfected their right of easement by prescription over C schedule by continuous and uninterrupted user of the way as access to their property. After purchasing B schedule, defendants attempted to obstruct the petitioners from using C schedule and thereupon the suit _**OP(C).191/21**_ 4 was filed seeking permanent prohibitory injunction restraining the respondents from obstructing the petitioners user of C schedule road. 2. Along with the plaint, petitioners moved Exhibit P2 application for injunction to which the 2[nd] respondent filed Exhibit P3 counter affidavit, raising the following contentions. The 2[nd] respondent was selected as the Concessionaire for the Design, Build, Finance, Operate and Transfer of Vizhinjam Seaport Project, which is a major infrastructure project of the Government of Kerala. The 1[st] respondent was entrusted as the nodal agency for taking care of the preparatory works of the Port. Accordingly, land for the project, including B schedule, was acquired and leased to the 2[nd] respondent for construction and management of the harbour for a fixed period. Construction of the boundary wall for the leased land, which is in progress, is essential for the security of the Port. The Mulloor Nagar Bhagavathy Temple and surrounding area was avoided from acquisition. In order to facilitate the 'Vavubali Pooja' by the local people on the Karikkathi beach, a temporary path was provided from the temple premises to the beach. Other than this temporary path, no other way is in existence. The petitioners are attempting to get free road access to their resort through the harbour project area. When Vizhinjam Seaport is operational, B schedule and surrounding _**OP(C).191/21**_ 5 properties will become high security zone and therefore, it is impossible to grant right of user of a pathway through the harbour area. 3. On _prima facie_ appreciation of the materials on record, the trial court found the existence of the pathway starting from the Vizhinjam Poovar Road and proceeding to Mulloor Nagar Temple and from there, to the plaint A schedule property. After entering such finding, trial court relied on Section 41 (ha) and Entry 1(c) of the Schedule to the Specific Relief Act, 1963 to hold that, no injunction impeding the progress of the Vizhinjam Port Project, which is an infrastructure project could be granted. It was further held that the servient tenement, namely B schedule, having been acquired, petitioners have to ventilate their grievances before either the forum provided under the Land Acquisition Act, 1984 or the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short, 'the 2013 Act'). Based on the findings the application for injunction was dismissed and the _ad interim_ injunction, vacated. Aggrieved, the petitioners preferred appeal and by Exhibit P6 judgment, the appeal was dismissed, affirming the findings of the trial court and also finding that the easement right claimed by the petitioners got extinguished on the _**OP(C).191/21**_ 6 land being acquired by the Government. Hence, this original petition. 4. Heard Advocate Shinod G.P., for the petitioners, Advocate Vipin P Varghese, for the 1[st] respondent and Advocate Roshen B Alexander, for the 2[nd] respondent. 5. Learned Counsel for the petitioners contended that the trial court committed gross illegality by refusing to grant interim injunction after finding _prima facie_ case in favour of the petitioners. According to the learned Counsel, the other two factors for granting injunction, namely, balance of convenience and irreparable injury, are also in the petitioners' favour. It is contended that B schedule and surrounding properties are to be utilised only as a buffer zone of the Port and cannot therefore be treated as part of the infrastructure project. It is contended that Section 41(ha) of the Specific Relief Act would come into play only if grant of injunction would impede or delay the progress or completion of an infrastructure project. Therefore, before refusing to grant injunction, the courts below ought to have considered whether the grant of injunction would either 'impede' or 'delay' the progress or completion of the Vizhinjam Port project. Assailing the finding of the appellate court that the easementary rights claimed by the petitioners got extinguished by the servient tenement being acquired, learned Counsel submitted that B schedule _**OP(C).191/21**_ 7 property was not acquired by the Government, but was purchased through negotiation. Hence, Section 16 of the Land Acquisition Act, 1894, which stipulates that, on the Collector taking possession of the land, it shall vest absolutely on the Government 'free from all encumbrances', has no application. On the other hand, Section 38 of the 2013, Act, which alone will apply, makes no mention about vesting of the land free from all encumbrances. It is argued that the grounds on which the courts below refused injunction being legally unsustainable, the orders/judgment should be set aside and the trial court directed to consider the applications afresh. 6. Learned Counsel for the respondents contended that the trial court having refused injunction for valid reasons and the appellate court having affirmed those findings, no interference is warranted in exercise of the supervisory power under Article 227 of the Constitution of India. It is argued that as per Schedule I(b) to the Specific Relief Act, ports have been included in the infrastructure subsector under transport category. By the Specific Relief Amendment Act,2018, Section 41(ha) was introduced fettering the power of courts to grant injunction, if it would impede or delay the progress or completion of any infrastructure project. Being so, no injunction could have been granted even on the trial court finding the pathway to be in _**OP(C).191/21**_ 8 existence. It is contended that the findings of the trial court regarding existence of B schedule way is factually incorrect and that finding was not challenged, since the injunction application was dismissed. It is contended that the B schedule properties were acquired by the Government and hence Section 16 of the Land Acquisition Act, 1894 will apply. According to the learned counsel, the appellate court had rightly relied on the decision in _**H.P.State Electricity Board and Others v. Shiv K.Sharma and Others**_ [(2005) 2 SCC 164] to find that upon acquisition, easementary rights over the land gets extinguished. 7. Having heard the learned coounsel on both sides and having scrutinised the impugned order/judgment, I find _prima facie_ merit in the contention that injunction was denied banking upon Section 41(ha) of the Specific Relief Act, without considering whether B schedule is part of an infrastructure project and in what manner the injunction would impede or delay the progress or completion of the Vizhinjam Port project. Such consideration assumes relevance in the light of the contention that B schedule falls in the buffer zone of the project and leaving open a road through B schedule will not in any manner impede or delay the completion of the project. Likewise, the contention that the lands falling in B schedule were purchased by the _**OP(C).191/21**_ 9 Government through negotiation and hence Section 16 of the Land Acquisition Act, 1894, has no application, is also liable to be addressed. At the same time, I find the above reasons to be insufficient to set aside the impugned order/judgment in exercise of the supervisory power. It is settled law that the power under Article 227 is to be exercised for keeping the subordinate courts within its limits and not to correct factual or legal errors in the orders of the courts below. In the result, the original petition is disposed of directing the trial court to decide the suit within an outer limit of six months, untrammelled by the observations/findings in the impugned order/judgment and uninfluenced by the observations herein. **Sd/-** **V.G.ARUN, JUDGE** ## _vgs_ _**OP(C).191/21**_ 10 ## **APPENDIX OF OP(C) 191/2021** PETITIONER EXHIBITS EXHIBIT P1 - TRUE COPY OF PLAINT IN OS. 798/2019OF THE MUNSIFF COURT, NEYYATTINKARA. EXHIBIT P2 TRUE COPY OF THE INJUNCTION PETITION IA NO. 5320/2019 IN OS. NO. 798/2019 OF THE MUNSIFF COURT, NEYYATTINKARA. EXHIBIT P3 TRUE COPY OF THE OBJECTION DATED 3.9.2019. EXHIBIT P4 TRUE COPY OF THE LEGAL OPINION OF THE ADVOCATE GENERAL DATED 29.1.2018. EXHIBIT P5 TRUE COPY OF THE SALE DEED NO. 1479/2018 DATED 12.10.2018. EXHIBIT P6 TRUE COPY OF THE ORDER IN IA 5320/19 AND IA 55272019 IN OS. 798/2019 OF THE ADDITIONAL MUNSIFF COURT, NEYYATTINKARA. EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 16.3.2020 IN CMA. NO. 7/2020 OF THE SUB COURT NEYYATTINKARA.