Relief Under Article 226 Discretionary, Subject To Public Interest: High Court Dismisses Plea Challenging 'Encroachment' By Kochi Metro Rail

The Kerala High Court recently dismissed a writ petition filed by a resident of an apartment developed by the Army Welfare Housing Organisation (AWHO) challenging land occupation by the Kochi Metro Rail Limited (KMRL) observing that the plea had potential adverse effects on public interest.

Justice Gopinath P acknowledged that while it is not disputed that KMRL's occupation of private land without due acquisition process is unlawful, granting relief under Article 226 is discretionary in writs of certiorari and mandamus.

"That KMRL could not have occupied any land belonging to private parties (here, the AWHO / Apartment Owners) without subjecting the said land to a process of acquisition is not in dispute. However, in the peculiar facts of this case, the said finding does not mean that this Court must grant relief to the petitioner since the grant of relief under Article 226 is discretionary, and even if the applicant for a writ has made out a case for grant of the relief sought it can be withheld." 

The petitioner, a retired Army Officer, purchased an apartment in a residential complex developed by AWHO. The petitioner alleged that a portion of land belonging to the AWHO, on which apartment blocks were built, was taken over by KMRL without proper acquisition procedures under the Right to Fair Compensation and Transparency in Land Acquisition Act, 2013. He sought a direction from the court to the competent authorities to remove the 'encroachment by KMRL' and to demolish the construction activities carried out by the KMRL on the property in question.

He lodged complaints with various authorities, including the AWHO and KMRL, seeking resolution on the issue of unauthorised land occupation, but to no avail. Aggrieved by the inaction, the petitioner moved the High Court seeking writs of mandamus to address pending complaints and grievances against the respondents.

The petitioner appeared in person and contended that the actions of KMRL in occupying and developing the land without proper authorisation are unlawful. He urged the Court to address the alleged illegality, insisting on the removal of constructed pillars to restore the land to the apartment owners.

Senior Advocate K. Jaju Babu, Advocates M.U Vijayalakshmi, George Cherian, P.T. Mohankumar and Rajesh Cherian Karippaparambil appearing for KMRL claimed that the AWHO had initially agreed to hand over the land to KMRL in exchange for the construction of a Foot Over Bridge, but this arrangement did not materialise due to objections from some apartment owners. KMRL subsequently decided to acquire the land under the provisions of the 2013 Act.

After hearing both parties' arguments, the Court observed that the documents clearly indicated that KMRL was permitted to occupy the land. 

Justice Gopinath held that while KMRL's possession might not have been in accordance with the usual acquisition process, the fact that KMRL had used the land for its metro project and that property rights are no longer a fundamental right influenced its decision.

"Considering the fact that the land has already been utilized by the 1st respondent and considering the fact that the Right to Property is no longer a Fundamental Right, the facts and circumstances of this case compel me to hold that the petitioner and other apartment owners will not be prejudiced in any manner if the land is now made the subject matter of acquisition and compensation is paid to the persons entitled to the same in accordance with the provisions of the 2013 Act."

The Court then emphasised that relief under Article 226 is discretionary and that this discretion is rooted in supervening public interest, ensuring that the rules for its exercise are clearly understood.

"The constitutional justification and the jurisprudential basis for retaining discretion with the constitutional courts to refuse relief (even if a ground has been made out) is supervening public interest."

It was also found that in this case, where relief seeking the demolition of KMRL's constructions was not specifically prayed for, it was deemed inappropriate due to potential adverse effects on public interest, especially considering the existing metro viaduct resting on the land's pillars.

Given the public interest involved, the Court refused to grant the relief sought by the petitioner.

Accordingly, the court dismissed the writ petition but directed KMRL and the District Collector to ensure that land acquisition proceedings are completed within 12 months in accordance with the law.

Case Title: Ciby George v. Kochi Metro Rail Ltd.

Citation: 2023 LiveLaw (Ker) 403

Click Here To Read/Download The Order