Kerala High Court
Bharat Sanchar Nigam Ltd vs State Of Kerala on 10 October, 2018
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY,THE 10TH DAY OF OCTOBER 2018 / 18TH ASWINA, 1940
WP(C).No. 16655 of 2009
PETITIONER:
BHARAT SANCHAR NIGAM LTD.
AGED 50 YEARS
BSNL, ALAPPUZHA.
BY ADV. SRI.C.S.RAMANATHAN
RESPONDENT/S:
1 STATE OF KERALA
CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM.
2 PRINCIPAL SECRETARY
INDUSTRIES DEPARTMENT, GOVERNMENT OF KERALA,, TRIVANDRUM.
3 SECRETARY
REVENUE DEPARTMENT, GOVERNMENT OF KERALA,, TRIVANDRUM.
4 DISTRICT COLLECTOR
COLLECTORATE, ALAPPUZHA.
5 DIRECTOR
INDUSTRIES AND COMMERCE, TRIVANDRUM.
6 GENERAL MANAGER
DISTRICT INDUSTRIES CENTRE, ALAPPUZHA.
7 M.S.ANAZ SO. SAITHU MUHAMMED
MANALUMPARAMBU HOUSE, AROOR, ALAPPUZHA.
BY ADVS.
SMT.M.A.VAHEEDA BABU
SRI.BABU KARUKAPADATH
SRI.P.G.PRAMOD
OTHER PRESENT:
GP-SRI. N.B.SUNILNATH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.10.2018, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 16655 of 2009
2
J U D G M E N T
The Bharath Sanchar Nigam Limited (BSNL for short) challenges Exts.P19 and P20 orders of the Government of Kerala; the former of which constitutes a committee to look into their grievances regarding the resumption of certain extent of land in the Industrial Development Area, Aroor, from them; and the latter which concludes that such resumption is in order.
2. The pleadings on record would show that the assertion of the BSNL is that they were given on lease the said extent of land in the year 1971 for the purpose of establishing a Telephone Exchange. According to them, subsequently in the year 1983, they wanted to purchase this property by assignment and that they had remitted an amount of Rs.46,926.80/- towards the cost of the land. They allege that the competent Authority did nothing thereafter and that while so, through an allegedly illegal order, the General Manager, District Industries Centre (DIC), Alappuzha, resumed the same from them, against which they filed an appeal before WP(C).No. 16655 of 2009 3 the Government, which was also, however, rejected by order dated 17.10.2005.
3. The BSNL says that they had approached this Court challenging the afore order of the Government by filing W.P. (C)No.613/2006, in which an interim order was initially granted and finally disposed of through Ext.P16 judgment, directing the Government to constitute a committee to look into the disputes raised by them and then take a decision, ignoring all the earlier orders. The learned counsel for the BSNL, therefore, asserts that what was directed by this Court through Ext.P16 was to take a fresh look into the whole matter, ignoring the orders of resumption earlier issued.
4. It transpires that pursuant to the directions of this Court, Ext.P19 order was issued by the Government on 04.02.2009, constituting a committee and thereafter, that the Government issued Ext.P20 order rejecting all the contentions of the petitioner against the resumption of the land from them. The petitioner says that the constitution of the committee and the conclusions in Ext.P20 are illegal and unlawful and on such basis, they assail the same in this writ WP(C).No. 16655 of 2009 4 petition.
5. I notice that this writ petition was filed in the year 2009 and that an interim order was granted by this Court on 17.06.2009 staying Ext.P20. This interim order has been extended from time to time and it thus still holds force.
6. When this case was taken up, Smt.Vaheeda Babu, the learned counsel appearing for the 7th respondent submits that, as has been stated in her client's pleadings and as is also recorded by the Government in Ext.P20 order, her client had been allotted the said land even before the interim order had been granted by this Court staying the said order. She says that her client has produced on record the order of allotment in his client's favour as Ext.R6(a), which is dated 09.01.2006 and she asserts that it is clear, therefore, that the allotment was, in fact, before the interim order of this Court.
7. Even though, I hear the submissions of Smt.Vaheeda Babu as afore, I cannot immediately hold or conclude that merely because Ext.R6(a) allotment was made to her client before the interim order had been issued, this writ petition WP(C).No. 16655 of 2009 5 has become irrelevant or that the petitioner would not be entitled to contend against the merits of the impugned orders. This is because, through Ext.P16 judgment, this Court has directed the Government to constitute a Committee for consideration of all the issues involved, ignoring all the earlier proceedings; and therefore, had Ext.P20 been to the benefit of BSNL, then certainly the factum of allotment of the land to the 7th respondent, through Ext.R6(a), would not have been an impediment for this Court in considering the validity of the said order.
8. That said, however the fact remains that Ext.P20 order is to the detriment of the BSNL. I therefore, now proceed to consider the merits of the contentions of the BSNL against that order.
9. As I have already indicated above, the petitioner's contentions in this case are two fold: a) that the constitution of the committee, as ordered in Ext.P19 order, is bad in law; and b) Ext.P20 order has not taken into account the true and relevant facts.
10. As regards Ext.P19 order is concerned, it only WP(C).No. 16655 of 2009 6 constituted a committee in terms of the directions of this Court in Ext.P16 judgment and since this Court had not directed the constitution of such committee in any particular manner, I cannot find Ext.P19 to be per se improper or illegal. I am of course aware that the submissions of the learned standing counsel for the petitioner-BSNL is that the composition of the committee, made through Ext.P19, is lopsided, since there is no proper representation for the BSNL and his assertion is made on the contention that when inter-departmental disputes are considered, both departments should have equal weightage in the committee and the BSNL relies on various judgments of the Hon'ble Supreme Court for this purpose. Even though the submissions of the BSNL may, at first glance, obtain some favour, the fact remains that this is not a case where the disputes between the parties are in the nature of inter-departmental disputes. The singular question for consideration is whether the resumption of land from the BSNL was proper or otherwise and this being an essential question of fact, which has been decided weighing in the relevant and germane factual inputs, I do not think WP(C).No. 16655 of 2009 7 that merely because there is only one member of the BSNL in the said committee, the said committee itself should be found to be untenable in law.
11. I therefore, now move on to consider the validity of Ext.P20 on the touchstone of the submissions made before me by the learned Standing counsel for the BSNL. On examination of Ext.P20, I notice that after considering all the factual circumstances, that have also been narrated by the BSNL in the pleadings of this case, the committee found that even though the petitioner was granted lease of this extent of land as early as in the year 1971, they occupied this premises only after 1983; in which year they made the proposal to purchase the same under assignment. It is further recorded in the order that the petitioner, thereafter, shifted their office from the said premises and that the building constructed thereon was kept idle for more than ten years subsequently. The General Manager, DIC is stated to have, therefore, factually verified and found that the BSNL had no intention of establishing a Telephone Exchange and that their intention was to use it for certain other WP(C).No. 16655 of 2009 8 purposes. The order says that it is in such circumstances, that the General Manager had resumed the land as per proceedings bearing number D/8113/93.
12. The factual narrations in the Ext.P20 order would further make it discernible that the land in question, allotted to the petitioner-BSNL on lease, had been thus left unutilzed by them for more than 33 years leading to a complete waste of public money and it is, therefore, that the General Manager, District Industries Centre, had allotted 15.12 cents out of it and the building thereon to the 7 th respondent. The order further says that the 7th respondent thereafter executed a formal agreement and occupied the building thereon, which continues even till date.
13. I further notice from Ext.P20 order that the views of the BSNL as well as the 7th respondent were specifically noticed by the committee. The 7th respondent was clearly found to have completely utilized the land, along with an additional land allotted to him later and that this project had found acceptance by the DIC after proper scrutiny. The committee thereafter, entered a decision in Ext.P20 that the WP(C).No. 16655 of 2009 9 action of the General Manager, DIC, in resuming the land from the petitioner was in order but that the said Authority had committed an error in not releasing the amount remitted by BSNL before such resumption. Therefore, as adscitious direction has been given in Ext.P20 to return the money to the BSNL and to initiate urgent action for such purpose consequent to the resumption of land.
14. Once I analyse the contents of Ext.P20 as afore, I am afraid that I cannot accede to any of the contentions of the BSNL in this writ petition, because the undeniable fact is that, apart from an evasive explanation, the BSNL does not say in what manner they had utilized the land and building in the 33 years, when it is allegedly kept in their possession. Even though the pleadings on record do not show how the BSNL had used this premises, in ground C of the writ petition they say as under:
"C)The land and building was allotted for operational requirement of the Assistant Engineer Telephone and continues to be used for the operational requirement of the BSNL. At no point of time the said land and building was unutilized as stated in the order. It is further pointed out that the petitioner has given an under taking to the 2nd respondent that immediately when the land and building being assigned to the petitioner a telephone exchange catering to the need of mobile services will be constructed at the site. All the above aspects were pointed out during the committee meeting WP(C).No. 16655 of 2009 10 but were ignored."
15. The afore extracted averments would, in fact, fortify the case of the official Authoritiues that the petitioner-BSNL had not used the premises for the purposes it was intended because the averments merely states that the "land and building continues to be used for operational requirement of the BSNL", without mentioning what they mean by this "operational requirement". This is pertinent because the BSNL concedes that its office and exchange was shifted in the year 1983, but they assert that some machinery was kept in the building, which, according to them, would construe the building as having been used for their "operational requirements".
16. I am afraid that I cannot countenance the above submissions for a moment because, factually the committee, as well as the Government have found that the BSNL had not used the premises for 33 years continually. This being an essential question of fact, it would not be proper or available to this Court, while acting under Article 226 of the Constitution of India, to affirmatively state upon it, WP(C).No. 16655 of 2009 11 owing to the well recognized constraints of jurisdiction of this Court in dealing with disputations of facts.
17. In the result, I am compelled, being without any other option, to dismiss this writ petition, confirming Exts.P19 and P20 orders and consequently the action of the General Manager, District Industries Centre, for resumption of the land in question from the petitioner-BSNL, as is recorded in Ext.P20 order is granted imprimatur.
This writ petition is thus dismissed.
Sd/-
DEVAN RAMACHANDRAN
rp-10.10 JUDGE
WP(C).No. 16655 of 2009
12
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 COPY OF THE APPLICATION FILED BY THE
PETITIONER
EXHIBIT P2 COPY OF THE LETTER DATED 23.12.1993
EXHIBIT P3 THE COPY OF THE LETTER DATED 28.1.1994 OF
THE 6TH RESPONDENT
EXHIBIT P4 THE COPY OF THE LETTER FORWARDING THE
DOCUMENTS TO THE 6TH RESPONDENT
EXHIBIT P5 THE COPY OF THE LETTER ADDRESSED TO THE 2ND
RESPONDENT
EXHIBIT P6 THE COPY OF THE LETTER DATED 3.8.1994
ADDRESSED TO THE 6TH RESPONDENT
EXHIBIT P7 THE COVERING LETTER DATED 7/1/1995
EXHIBIT P8 THE COPY OF LETTER DATED 28.6.1996
EXHIBIT P9 THE COPY OF LETTER DATED 21.01.2004
EXHIBIT P10 THE COPY OF LETTER DATED 30.9.2004
EXHIBIT P11 THE COPY OF ORDER DATED 28.12.2004
EXHIBIT P12 THE COPY OF APPEAL MEMORANDUM DATED
17.2.2005
EXHIBIT P13 THE COPY OF LETTER DATED 26.7.2005
EXHIBIT P14 THE COPY OF LETTER DATED 30.7.2005
EXHIBIT P15 THE COPY OF ORDER DATED 17.10.2005
EXHIBIT P16 THE COPY OF JUDGMENT DATED 5.11.2008
EXHIBIT P17 THE COPY OF THE JUDGMENT DATED 16.2.2009 IN
REVIEW PETITION 141/2009
EXHIBIT P18 THE COPY OF THE JUDGMENT DATED 23.3.2009
WP(C).No. 16655 of 2009
13
EXHIBIT P19 THE COPY OF THE ORDER DATED 4.2.2009 FORMING
THE COMMITTEE
EXHIBIT P20 THE COPY OF ORDER ISSUED BY THE 2ND
RESPONDENT
EXHIBIT P21 NOTIFICATION NO.G.O.(P) NO.220/RAV. DATED
30.03.1964 ISSUED BY THE GOVT. OF KERALA
EXHIBIT P22 LETTER MS/PLG/CIVIL/40/GBT/ALP SSA/2012-13/4
DATED 29.6.2012 ISSUED BY AGM(NP), O/O
GM(NP-CM)TVM
EXHIBIT P23 COPY OF THE BUILDING TAX PAID RECEIPT ISSUED
BY THE ARROR GRAMA PANCHAYAT, AROOR
EXHIBIT P24 COPY OF THE POSSESSION CERTIFICATE DATED
13.04.2012 ISSUED BY THE VILLAGE OFFICER, AROOR EXHIBIT P25 COPY OF THE OWNERSHIP CERTIFICATE DATED 13.4.2012 ISSUED BY THE AROOR GRAMA PANCHAYATH, AROOR EXHIBIT P26 COPY OF THE NOTE DATED 10.1.2013 SUBMITTED BY SDE(CIVIL),BSNL, ALAPPUZHA EXHIBIT P27 COPY OF THE COMPLAINT DATED 02.02.2013 FILED BEFORE THE SUPDT. OF POLICE, ALAPPUZHA RESPONDENT'S/S EXHIBITS:
EXHIBIT R6 A TRUE COPY OF THE ORDER DATED 09.01.2006 OF THE 6TH RESPONDENT, RE-ASSIGNING THE LAND AND BUILDING IN QUESTION IN FAVOUR OF M/S.THAHIRA CHEMICALS, DEVELOPMENT AREA, AROOR.
EXHIBIT R7 B A TRUE COPY OF THE COMPLAINT DATED 09.1.2013 SUBMITTED BY THE 7TH RESPONDENT BEFORE THE SUB INSPECTOR OF POLICE, AROOR ALONG WITH THE RECEIPT