CIBY GEORGE Vs. KOCHI METRO RAIL LIMITED

JUDGEMENT

(1.) The petitioner is a retired Army Officer. He purchased an apartment in a residential complex put up by the Army Welfare Housing Organisation (hereinafter referred to as 'AWHO') and known as 'AWHO CHANDERKUNJ' at Silver Sand Island, Vyttila, Ernakulam District. The AWHO is stated to be an organisation completely under the management and control of the Indian Army. According to the petitioner, the petitioner had purchased the apartment together with undivided rights in the land on which the apartment was constructed in the month of May 2018. The petitioner has approached this court with a grievance that without the knowledge of the petitioner and other apartment owners, about 30 cents of land forming part of the larger extent of 4.24 Acres on which several apartment blocks have been constructed by AWHO had been taken over and used by the Kochi Metro Rail Limited (KMRL) without subjecting the land to any process of acquisition under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (In short 'the 2013 Act') and without the payment of any compensation.

(2.) The petitioner has filed several complaints before the AWHO and to the KMRL and has also sought details from KMRL regarding the authority given to them to occupy the land in question. The petitioner also approached the District Collector, who also acts as the Zila Sainik Welfare Officer and also sought the exercise of jurisdiction of the District Collector as Executive Magistrate to evict the illegal encroachments etc. The petitioner also addressed the AWHO to remove all encumbrances over the land in question on account of illegal occupation by the KMRL. Though not relevant for the purposes of this case, the petitioner also claims to have filed a criminal complaint against the AWHO alleging serious incidents of cheating, criminal breach of trust etc., in the execution of the project for the construction of the residential apartment complex in question. The petitioner has thereafter approached this court by filing the above writ petition and seeking the following reliefs;

(3.) The petitioner appears in person. He contends that the entire sequence of events leading to the occupation of the land by the KMRL and the construction activities carried out by KMRL clearly indicate that the action of the KMRL in occupying the land without any permission or legal authority is illegal and unsustainable in law. He submits with reference to the pleadings in the reply filed to the counter affidavit filed by the KMRL that, the KMRL has no case that there was any notification or proceedings under the 2013 Act enabling the 1st respondent to occupy and use the land for its own purposes. It is submitted that the reliance placed by the 1st respondent on Ext.R1 (a) communication itself shows that the AWHO had initially asked for compensation of Rs.2.64 Crores. It is submitted that Exts.P25 and 26 documents produced, along with the reply filed to the counter affidavit filed by the KMRL show that the AWHO had clearly asked for compensation. It is submitted that Exts.P35 and P36 letters indicate that the only proposal on paper at that time was that the land would be taken over subject to payment of compensation. It is submitted that under the Memorandum of Understanding (MoU) thereafter proposed to be executed between the AWHO and KMRL (after giving up the earlier arrangements whereby compensation would be payable by KMRL for the land required for the purposes of its project), a completely new arrangement had been entered to /proposed which provided for handing over the land free of cost on condition that the KMRL would at its cost construct a Foot Over Bridge from the Vyttila Metro Station / Mobility Hub to the apartment complex crossing the water channel along with KMRL Via-duct for the easy passage of residents of the apartment complex to the Vyttila Metro Station and the Mobility Hub. It is submitted that the said MoU itself is very vague and provides for the construction of a Foot Over Bridge in 3 months, which was practically an impossibility. It is submitted that the MoU contains vague and absurd clauses, and at any rate, it is illegal as in every contract, 'time is the essence of contract'. It is submitted that in such circumstances, even disregarding the contentions taken in the counter affidavit filed by the 1st respondent that the land would now be made subject matter of acquisition, and compensation would be paid to owners of the land, this court must direct the 1st respondent to immediately vacate the land by demolishing the pillars constructed on it to enable the passage of the Metro through the Via-duct. In other words, it is contended that this court should not close its eyes to gross illegality and permit the 1st respondent to continue in illegal occupation of the land, and notwithstanding the fact that the Metro project has already been completed, all constructions must be demolished and the land must be handed over back to the apartment owners who have undivided interests over it.