Kerala High Court
P.S.Krishna Iyer vs Manjeri Municipality on 16 August, 2007
Author: M.Sasidharan Nambiar
Bench: M.Sasidharan Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 500 of 1994()
1. P.S.KRISHNA IYER
... Petitioner
Vs
1. MANJERI MUNICIPALITY
... Respondent
For Petitioner :SRI.N.NANDAKUMARA MENON
For Respondent :SRI.TPM.IBRAHIM KHAN
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :16/08/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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S.A. NO. 500 OF 1994
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Dated this the 16th day of August, 2007
JUDGMENT
Plaintiffs in O.S.569/1986 on the file of Munsiff Court, Manjeri are the appellants. Defendants are the respondents. Appellants instituted the suit seeking a decree for realisation of Rs.3200/- of which Rs.700/- being value of articles and Rs.2500/- value of fittings. The allegation in the plaint was that second appellant obtained room No.3 of K.S.S. Building owned by Manjeri Municipality and it was originally in the possession of Hamsa as per a lease arrangement with the Panchayat and Hamsa had put up temporary fittings like glass panel, hard board locker etc. to protect the room from the sun and rain without making structural alteration and it was done with the permission of Manjeri Panchayat and subsequently Panchayat merged with the Municipality and on 22.3.1986 at about 12.30 S.A.No.500/1994 2 p.m. respondents 2 to 6 the officials of the Municipality forcibly took away the articles kept by the appellants and demolished the structure, which was originally put up by Hamsa and as a result appellants sustained a damage of Rs.3200/-. It was contended that Municipality did not serve any notice on the appellants calling upon them to remove or demolish the fittings and in such circumstance, the removal was in violation of the provisions of the Act and so appellants are entitled to damages. Respondents resisted the suit contending that Kurikkal Smaraka Soudham belonging to the Municipality was leased out to several persons on license arrangement and the arrangement is only a licence and not a lease and the backyard portions of the building was not granted to the licensees and second appellant is only a licensee of room No.3 and has no right over S.A.No.500/1994 3 the backyard portion and the removal of the unauthorised and illegal temporary construction is part of the duties of the Municipal authorities and such removal is done in obedience to the Acts and Rules and therefore appellants are not entitled to seek any damages. It was also contended that appellants did not sustain any damage and therefore the suit is to be dismissed.
2. Learned Munsiff on the evidence of Pws.1 and 2 and Exts.A1 to A7 and Exts.B1 and B2 and Exts.C1 and C2 found that room No.3 alone was granted to the second appellant as per Ext.B2 licence arrangement and appellants have no right over the backyard portion and though it was contended that Hamsa had earlier put up the structure, which was demolished, after obtaining permission from the Panchayat, no evidence was adduced to establish that fact and Ext.A6 produced by the appellants S.A.No.500/1994 4 shows that Muhammedali another licensee had obtained permission to use the backyard portion and appellants did not produce any such permission to Hamsa or to them and in such circumstance, possession of the backyard by them was illegal. Learned Munsiff also found that under section 212 of Kerala Municipalities Act, the Commissioner has got very power to remove the encroachments. Though it was found that no written notice was issued before the demolition, from the evidence of PW1 itself it was found that there was oral notice and PW1 admitted that other occupants of the building who have put up illegal constructions have demolished the structure after intimation was given by the Municipality and therefore held that there was no violation of the provisions of the Act. Learned Munsiff on the evidence also found that there is no evidence to prove that articles S.A.No.500/1994 5 worth Rs.700/- as claimed was damaged or to show the value of the demolished structure and Exts.C1 and C2 are insufficient to hold that appellants sustained damages. The suit was dismissed. Appellants challenged the decree and judgment before the District Court in A.S.730/1989. Learned District Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal.
3. The second appeal was admitted formulating the following substantial questions of law.
1) Whether a statutory notice as contemplated under section 217(3) of Muncipalities Act is mandatory before an order of demolition of unauthorised structure is made.
2) Whether first defendant Muncipality should afford an opportunity to the plaintiff, for being S.A.No.500/1994 6 heard, before the order of demolition of additional or unauthorised structure is made?
4. Even according to appellants, they obtained only room No.3 from the Muncipality under Ext.B2 licence arrangement. Under Ext.B2 second appellant had only the right to occupy room No.3 and not the backyard space. The case of appellants was that room No.3 was originally occupied by Hamsa under a licence arrangement with the former Panchayat and while so he put up the additional structure in the backyard and subsequent to Ext.B2 licence arrangement appellants have been enjoying that privilege and it was demolished without serving any notice to show cause why it shall not be demolished. Courts below on the evidence found that appellants did not adduce any evidence to prove that Hamza was either granted a licence or put up the structure as claimed. Courts S.A.No.500/1994 7 below relying on Ext.A6 found that when another licensee Muhammedali had put up structure on the backyard portion of the building, permission was granted under Ext.A6 and if either Hamza or appellants was granted any such permission, it would have been evidenced by a written document and in the absence of any evidence disbelieved that case. It was on the evidence, courts below found that no permission was granted by the Muncipality to the appellants or Hamza to use the backyard portion of the building. That factual finding cannot be interfered in exercise of the powers of this court under section 100 of Code of Civil Procedure.
5. The fact that the unauthorised construction on the backyard was demolished by the Muncipality on 22.3.1986 was not disputed. It is also admitted that no written notice was issued. S.A.No.500/1994 8 Though a substantial question of law was formulated on want of a notice under sub section (3) of Section 217 of Kerala Muncipalities Act, in the facts and circumstance of the case, Section 217 has no application. It applies to occupation of a poramboke land without licence. Appelants have no case that they were occupying puramboke land without licence warranting a notice as provided under sub section (3) before eviction. Even according to appellants, second appellant is only a licensee of a shop room No.3 and backyard portion is not puramboke in her occupation. Therefore though substantial questions of law were formulated, on the facts it is not involved in the appeal.
6. Though section 212 provides for serving notice before the Commissioner exercise the power of removal of unlawful encroachment, on the S.A.No.500/1994 9 evidence courts below found that oral notice was issued to the appellants. PW1 himself admitted that person who had put up similar structures had demolished the structures when the Muncipality directed them to do so and those structures which were not demolished were demolished by the Muncipality. In the light of that evidence, courts below found that there was no violation of the provision under section 212 .
7. Moreover, as fairly pointed out by the learned counsel appearing for appellants clause (4) of Ext.B2 agreement enables the Municipality to remove any encroachment or additional structure made by a licensee. In such circumstance, appellants are not entitled to seek damages for demolition of the illegal structure. On appreciating the evidence, courts below found that there is no evidence also to prove that appellants S.A.No.500/1994 10 sustained damages. In such circumstance, there is no merit in the appeal. Appeal is dismissed. No costs.
M.SASIDHARAN NAMBIAR JUDGE tpl/-
M.SASIDHARAN NAMBIAR, J.
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S.A..NO.387 /1993
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JUDGMENT 17th August,2007