Kerala High Court
Althaf V.B vs The District Collector on 5 March, 2020
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
THURSDAY, THE 05TH DAY OF MARCH 2020 / 15TH PHALGUNA, 1941
WP(C).No.5685 OF 2020(I)
PETITIONERS:
1 ALTHAF V.B.,
AGED 31 YEARS
S/O.BASHEER, VALIYAVEETTIL HOUSE, KOTTAI,
NEDUMBASSERY P.O., PIN - 683 585.
2 JADHEER C.J.,
AGED 31 YEARS
S/O.JALEEL, CHUNGATH HOUSE,
CHUNGAM, ADUVASSERY P.O.
3 RENJITH P.G.,
AGED 33 YEARS
S/O.GOPALAKRISHNAN, PUTHEN PURAKKAL HOUSE,
MAIKKAD P.O., PALLIPADI.
4 V.EMARALD STEEFAN,
AGED 28 YEARS
S/O.VARGHESE, PARAYAN VILAI, THIRUVATTOOR P.O.,
KANYAKUMARI DIST., TAMIL NADU, PIN - 629 177.
5 ANSAR M.A.,
AGED 42 YEARS
S/O.ABDUL KHADER, MANICHERY HOUSE, PUTHUVASSERY,
NEDUMBASSERY P.O., PIN - 683 585.
6 VIJU P.G.,
AGED 48 YEARS
S/O.GOPALAN, PINDIYATHUPADI, KOTTAI,
NEDUMBASSERY P.O., PIN - 683 585.
7 ASHARAF P.K.,
AGED 55 YEARS
S/O.KAZIM, PADIKKAMUTTATHU HOUSE, PURAYAR,
DESOM, ALUVA, PIN - 683 102.
8 KUNJU MUHAMMED,
AGED 54 YEARS
S/O.KAZIM,KALLAMKOTTIL HOUSE, PURAYAR,
DESOM P.O., ALUVA, PIN - 683 102.
WP(C).No.5685 OF 2020
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9 RAJAN A.K.,
AGED 54 YEARS
S/O.KILUMATHI, ILIPARAMBIL HOUSE, KOTTAI,
NEDUMBASSERY P.O., PIN - 683 585.
10 AJEEB C.A.,
AGED 32 YEARS
S/O.LATE ASHARAF,13/609, CHITTUPARAMBU ROAD,
CHULLICKAL,COCHIN - 692 005.
BY ADVS.
SRI.AJIT G.ANJARLEKAR
SRI.B.SURJITH
RESPONDENTS:
1 THE DISTRICT COLLECTOR,
ERNAKULAM, CIVIL STATION, KAKKANAD,
ERNAKULAM - 682 030.
2 THE TAHSILDAR ALUVA (ESTATE OFFICER),
TAHSILDAR OFFICE, ALUVA,
ERNAKULAM DISTRICT, PIN - 683 101.
3 THE KERALA STATE CO-OPERATIVE MARKETING FEDERATION
LTD., GANDHI NAGAR, KADAVANTHARA P.O., KOCHI,
ERNAKULAM DISTRICT, PIN - 682 020.
4 UMMER,
AGED 53 YEARS,
S/O.MOIDEEN, PUTHUVAAYIL (H), MUTTOM,
ALUVA, ERNAKULAM - 683 106.
SRI.C.C.ABRAHAM
SRI.ALEX ABRAHAM
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.5685 OF 2020
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JUDGMENT
This writ petition is filed seeking the following relief:
"(i) Issue a writ of certiorari or other appropriate writ, order or diretion calling for the records leading to Exhibit P1 and P4 and quash the same."
2. Heard the learned counsel for the petitioners, the learned Government Pleader and the learned counsel for the 3 rd respondent.
3. The essential contention of the learned counsel for the petitioners is that the action of the respondents in evicting the petitioners from the building in question is illegal and unsustainable in view of the provisions contained in Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (for short 'the Act'). It is contended that the petitioners are subtenants of the original tenant, the 4th respondent, and that they also come under the definition of unauthorized occupant in terms of Section 2(g) of the Act. It is therefore contended that the action of the Estate Officer in ordering eviction of the petitioners without issuance of the mandatory notice as provided in Section 4 of the Act is illegal and unsustainable.
4. It is further submitted that the Estate Officer was WP(C).No.5685 OF 2020 4 incompetent in view of the fact that there was no specific order appointing the 2nd respondent as the Estate Officer in respect of buildings belonging to the 3rd respondent. It is further contended that the 3 rd respondent is not a statutory authority or a public authority and that as such, the invocations of the provisions of the Act itself was incompetent. It is submitted by the learned counsel for the petitioners that the issue is covered by binding judgment of the Apex Court in as much as the specific legal requirement of issuance of a notice to the unauthorized occupants has been flouted in the instant case.
5. A counter affidavit has been placed on record by the 3 rd respondent. It is stated therein that the 3 rd respondent is an apex society registered under the Kerala Co-Operative Societies Act and is running almost entirely on capital provided by the Kerala Government and it comes within the definition of public authority as provided in the Act. It is further contended that there is a general notification issued in the year 1969 with regard to the Kerala Public Buildings (Eviction of Unauthorized Occupants) Act, 1968 by which Tahsildars of Taluks had been appointed as Estate Officers for the purpose of the said Act in respect of all public buildings other than those belonging to or taken on lease or acquisition by or on behalf of local authorities. It is further contended that specific orders of appointment of Estate Officers in WP(C).No.5685 OF 2020 5 respect of each public authority is not contemplated by the Act. Further it is contended that the petitioners are admittedly subtenants of the 4 th respondent and the terms of the lease between the 3 rd respondent and the 4th respondent specifically prohibited any such sublease. It is also contended that the 4th respondent had filed a suit specifically contending that he was conducting the businesses in the premises in question. It is stated that the 4th respondent had been put on notice and eviction proceedings has been issued against him, which were subject to challenge before this Court. It is submitted that the petitioners had also approached this Court challenging the order of eviction issued by the Estate Officer and by Ext.P2 judgment, the writ petition was disposed of directing the consideration of the contentions in the appeal preferred by the petitioners. Though the matter was taken in appeal by the 3 rd respondent, the said direction was deferred. It is thereafter that Ext.P4 order has been passed. It is submitted that all the factual aspects of the matter including the contention that the petitioners had not been put on notice before the eviction orders were passed had been considered by the appellate authority. It was found by the appellate authority that the agreement was between the 3rd and 4th respondents and that the alleged sublessees of the 4th respondent would have no independent right to claim possession of the properties and would also have no independent WP(C).No.5685 OF 2020 6 case to put up with regard to such possession. It was therefore held that the contention raised by the petitioners that they had not been separately put on notice under Section 4 of the Act was found against and Ext.P4 order was passed.
6. Having considered the contentions advanced on either side, I find that Section 4 of the Act specifically provides for issuance of notice upon persons in unauthorized occupation calling upon them to show- cause why an order of eviction should not be made. Therefore, the contentions of the petitioners that the petitioners who were admittedly unauthorized occupants ought to have been put on notice before the eviction orders were passed is an attractive contention. However, the facts of the case are otherwise. It is an admitted fact that the lease was between the 3rd and 4th respondents. The 4th respondent had been put on notice under Section 4 of the Act and it is stated in Ext.P4 order that the 4th respondent had surrendered vacant possession of the property to the 3rd respondent. The petitioners. who were admittedly sublessees of the 4th respondent, which is their specific case in the writ petition also, cannot have any right independent from the right of the 4 th respondent to contend that they are also unauthorized occupants and should therefore be put on notice separately and heard under Section 4 of the Act before action is initiated against them. After the eviction order was WP(C).No.5685 OF 2020 7 passed, the petitioners had approached this Court. This Court did not consider the challenge against the eviction order and directed the consideration of the appeal preferred by the petitioners. Thereafter, it is clear from Ext.P4 that the said contention of the petitioners has also been considered by the appellate authority and Ext.P4 order has been passed.
In the facts and circumstances of the instant case and in view of the specific contentions raised, I am of the opinion that the non-issuance of separate notices to the petitioners in this writ petition would not be fatal to the orders of eviction. In the above view of the matter, the contention that the impugned orders are vitiated by non-issuance of notice to the petitioners separately cannot be accepted. The writ petition thus fails and the same is accordingly dismissed. However, the respondents shall grant two weeks time to the petitioners to hand over vacant possession of the premises.
Sd/-
ANU SIVARAMAN JUDGE np WP(C).No.5685 OF 2020 8 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE ORDER DATED 30/09/2019 IN B3-9621/17 ON THE FILES OF TAHSILDAR ALUVA (ESTATE OFFICER).
EXHIBIT P2 A TRUE COPY OF THE JUDGMENT DATED 29/10/2019 IN W.P.(C) NO.28242/2019 ON THE FILES O THIS HON'BLE COURT.
EXHIBIT P3 A TRUE COPY OF THE JUDGMENT DATED 18/11/2019 IN W.A.NO.2323/2019 OF THIS HON'BLE COURT.
EXHIBIT P4 A TRUE COPY OF THE ORDER DATED 24/02/2020 ISSUED BY 1ST RESPONDENT.
EXHIBIT P5 A TRUE COPY OF THE JUDGMENT DATED 09/08/2019 IN W.P.(C) NO.21955/2019 ON THE FILES OF THIS HON'BLE COURT.
EXHIBIT P6 A TRUE COPY OF THE CAVEAT ORIGINAL PETITION FILED BEFORE THE HONOURABLE MUNSIFF COURT, AT ALUVA ERNAKULAM, BY 3RD RESPONDENT, AGAINST 2ND PETITIONER.
EXHIBIT P6 (A) A TRUE COPY OF THE CAVEAT ORIGINAL PETITION FILED BEFORE THE HONOURABLE MUNSIFF COURT, AT ALUVA ERNAKULAM, BY 3RD RESPONDENT, AGAINST 3RD PETITIONER.
EXHIBIT P6 (B) A TRUE COPY OF THE CAVEAT ORIGINAL PETITION FILED BEFORE THE HONOURABLE MUNSIFF COURT, AT ALUVA ERNAKULAM, BY 3RD RESPONDENT, AGAINST 5TH PETITIONER.
EXHIBIT P6 (C) A TRUE COPY OF THE CAVEAT ORIGINAL PETITION FILED BEFORE THE HONOURABLE MUNSIFF COURT, AT ALUVA ERNAKULAM, BY 3RD RESPONDENT, AGAINST 6TH PETITIONER.
EXHIBIT P6 (D) A TRUE COPY OF THE CAVEAT ORIGINAL PETITION FILED BEFORE THE HONOURABLE MUNSIFF COURT, AT ALUVA ERNAKULAM, BY 3RD RESPONDENT, AGAINST 7TH PETITIONER.
WP(C).No.5685 OF 2020 9 EXHIBIT P6 (E) A TRUE COPY OF THE CAVEAT ORIGINAL PETITION FILED BEFORE THE HONOURABLE MUNSIFF COURT, AT ALUVA ERNAKULAM, BY 3RD RESPONDENT, AGAINST 9TH PETITIONER.
EXHIBIT P7 A TRUE COPY OF THE REPORT DATED 28/12/2016 OF THE VILLAGE OFFICER, CHENGAMANAD, ADDRESSED TO 2ND RESPONDENT.
EXHIBIT P8 A TRUE COPY OF THE REPORT OF THE VILLAGE OFFICER, CHENGAMANAD DATED 17/07/2019, ADDRESSED TO 2ND RESPONDENT.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R3(A) TRUE COPY OF THE LICENSE DEED DATED 28.10.2015 EXECUTED BETWEEN THE 3RD RESPONDENT AND THE 4TH RESPONDENT EXHIBIT R3(B) TRUE COPY OF THE JUDGMENT IN WPC NO 20053/2016 DATED 16.8.2019 BY THIS HON'BLE COURT EXHIBIT R3(C) TRUE COPY OF THE ORDER NO B3.9621/17 DATED 30.9.2019 ISSUED BY THE HON'BLE ESTATE OFFICER EXHIBIT R3(D) TRUE COPY OF THE LETTER DATED 21.11.2019 ISSUED BY THE 4TH RESPONDENT HEREIN TO THE 3RD RESPONDENT EXHIBIT R3(E) TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 4TH RESPONDENT HEREIN IN IA NO 2107/2019 IN OS NO 367/2019 EXHIBIT R3(F) TRUE COPY OF THE ADVOCATE COMMISSION REPORT IN I.A. NO 2493/2019 IN OS NO 367/2019 BEFORE THE HON'BLE MUNSIFF COURT ALUVA EXHIBIT R3(G) TRUE COPY OF THE PLAINT IN OS NO 504/2016 FILED BY THE 4TH RESPONDENT BEFORE THE HON'BLE MUNSIFFS COURT ALUVA