C.K. Sreedharan v. Estate Officer, Government Medical College Kozhikode and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **MONDAY, THE 24TH DAY OF JUNE 2013/3RD ASHADHA, 1935** ## **WP(C).No. 23404 of 2012 (A)** **---------------------------------------** ## **PETITIONER:** ## **-------------------** **C.K.SREEDHARAN, S/O.RAMAN, AGED 67 YEARS, TRADER, RESIDING AT AYATTPOYIL SANTHI NAGAR, EKAROOL POST, KOZHIKODE.** **BY ADVS.SRI.B.KRISHNAN SRI.R.PARTHASARATHY** ## **RESPONDENT(S):** ## **--------------------------** ## **1. THE ESTATE OFFICER, GOVERNMENT MEDICAL COLLEGE, KOZHIKODE-673008.** **2. THE DISTRICT COLLECTOR, KOZHIKODE-673020.** ## **3. THE STATE OF KERALA,** - **WITH ADDRESS FOR SERVICE, THE SECRETARY (HEALTH), SECRETARIAT, THIRUVANANTHAPURAM-695001.** **4. HOSPITAL DEVELOPMENT COMMITTEE, I.M.C.H. MEDICAL COLLEGE HOSPITAL KOZHIKODE WITH ADDRESS FOR SERVICE-SECRETARY & TREASURER, THE SUPERINTENDENT I.M.C.H. KOZHIKODE-673008.** ## *** ADDL.R5 IMPLEADED** ## **R5. T.M.KOYA, S/O.KUNHIKOYA, AGED 51 YEARS, NOORIMASKAN HOUSE, PUTHIYANGADI AMSOM DESOM KOZHIKODE.** ## **IMPLEADED AS PER ORDER DATED 28/11/12 INIA.15802/12.** **BY GOVERNMENT PLEADER SMT.LALLY K.T. ADDL.5 BY ADV. SRI.R.RAMADAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 23404 of 2012 (A) ---------------------------------------** ## APPENDIX ## **PETITIONER(S) EXHIBITS** **EXHIBIT P1: TRUE COPY OF THE PROCEEDINGS OF R1 DATED 19-3-2012.** **EXHIBIT P2: TRUE COPY OF THE PROCEEDINGS OF R2 DATED 4-9-2012.** **EXHIBIT P3: TRUE COPY OF THE INDENTURE DATED 8TH JANUARY 2004. EXHIBIT P4: TRUE COPY OF THE INDENTURE DATED 11TH OCTOBER 2006.** **EXHIBIT P5: TRUE COPY OF THE ORDER IN IA 1343/2008 IN OS 183/2008 BY THE SUBORDINATE JUDGE, KOZHIKODE DATED 8TH APRIL 2009.** **EXHIBIT P6: TRUE COPY OF THE ORDER IN CM APPEALS 52/2009 & 53/2009 BY THE DISTRICT JUDGE, KOZHIKODE DATED 22ND DECEMBER 2009.** **EXHIBIT P7: TRUE COPY OF THE JUDGMENT IN WPC 16292 OF 2010 BY THE HON'BLE HIGH COURT OF KERALA DATED 31ST MAY 2010.** **EXHIBIT P8: TRUE COPY OF THE NOTIFICATION BY GOVERNMENT OF KERALA DATED 29TH DECEMBER 1993.** **EXHIBIT P9: TRUE COPY OF THE NOTIFICATION BY THE GOVERNMENT OF KERALA.** ## **RESPONDENTS' EXHIBITS** **NIL.** **TRUE COPY** **P.S.TO JUDGE** **PJ** ## **A.M.SHAFFIQUE, J * * * * * * * * * * * * *** W.P.C.No.23404 of 2012 ---------------------------------------Dated this the 24[th] day of June 2013 ## **J U D G M E N T** This writ petition is filed challenging the order passed by Estate Officer appointed under the Kerala Public Buildings (Eviction of Unauthorised Occupants) Act, 1968 (hereinafter referred as the Act) directing eviction of the petitioner from the premises occupied by him and the appellate order confirming the same. The authorities under the Act had also directed the petitioner to pay an amount of Rs.87,86,096/as damages to the 4[th] respondent. 2. It is not in dispute that the petitioner was occupying the premises of the Hospital Development Committee, Institute of Maternal & Child Health, Medical College Hospital, Kozhikode for running a canteen. According to him, he came into possession of the said premises from 11/10/2003 as per Ext.P3 agreement for a period of three years. It was later extended by another 3 W.P.C.No.23404/2012 2 months as per Ext.P4. Petitioner continued in possession and the rent was paid upto 11/6/2008. When there was an attempt to evict the petitioner, he filed O.S.No.183/2008 before the Sub Court and obtained an interim injunction restraining the respondent from dispossessing the petitioner. The said order had been confirmed and as per Ext.P7 judgment in W.P.C.No.16292/2010 the Sub Court was directed to dispose of the suit. 3. Thereafter, after issuing notice the Estate Officer had taken proceedings for taking possession under the Act which resulted in Ext.P1 order. Though the matter was carried in appeal by the petitioner the same was dismissed as per Ext.P2 and challenging the same, this writ petition is filed. 4. The main ground alleged by the petitioner is that in so far as the suit filed by him is pending consideration by a Civil Court wherein he had raised a specific plea that the transaction between the parties is that of a lease and the petitioner was a tenant holding over it, he cannot be evicted W.P.C.No.23404/2012 3 by resorting to the proceedings envisaged under the Act. The main contention is that if the transaction is that of a lease, there is no notice terminating the lease and the notice issued by the Estate officer under the Act will not suffice. 5. Still further it is argued that quantification of damages without issuing notice under Section 8 of the Act is bad in law. 6. The additional 5[th] respondent has filed a counter affidavit. He is a person who had submitted tender for the subsequent year and since the petitioner had not vacated the premises he is unable to execute agreement with the concerned department. 7. The Learned Government Pleader appearing on behalf of the official respondents placed the file containing the proceedings of the Estate Officer and the appellate authority. 8. The short question to be considered in the above writ petition is the validity of Exts.P1 and P2 orders. W.P.C.No.23404/2012 4 9. A reference to the definition of unauthorised occupation under Section 2(f) of the Act would substantially answer the issue involved in the case which reads as under: “unauthorised occupation” in relation to any public building, means the occupation by any person of the building without authority for such occupation and includes the continuance in occupation by any person of the public building after the authority (whether by way of lease or any other mode of transfer) under which he was allowed to occupy the building has expired or has been determined for any reason whatsoever.” 10. The contention raised by the petitioner is that since the transaction involved in the case is a lease and the rent was accepted upto 11/06/2008 that is even after the period of the agreement Exts.P3 and P4, the petitioner is a tenant holding over and in the absence of a notice to terminate the lease, his occupation is not “unauthorised”. 11. According to the Estate Officer as well as the appellate authority the arrangement between the parties is W.P.C.No.23404/2012 5 that of a licence. If it is so, such a contention may not arise at all as a licencee has no legal right to continue in possession after the expiry of the period of the licence and he becomes an unauthorised occupant despite the fact that he continued to pay the licence fee or the licensor received the licence fee. 12. Exts.P3 and P4 are the main documents relied upon by the petitioner. Its nomenclature is that of an agreement. Ext.P3 indicates that it was an extension of an earlier agreement “to run the light refreshment stall and counter”. The consideration to be paid is referred as “rent”. The period described under Ext.P3 read with Ext.P4 expired on 09/01/2007. The agreement has not been renewed thereafter. Public building is defined u/s 2(d) of the Act as under: _“Public building” means any building or part of a building belonging to, or taken on lease or requisitioned by, or on behalf of, the Government or a local authority or a company or a Corporation and includes-_ W.P.C.No.23404/2012 6 - _(i) XXXX_ - _(ii) XXXX (iii) XXXXX_ 13. There cannot be any dispute that the premises held by the 4[th] respondent herein is a public premises as it is a property of the Government purported to be used by the 4[th] respondent. Rent is defined under Section 2(e) as under: “Rent”, in relation to any public building, means the consideration payable periodically for the authorised occupation of the building, and includes- - (1) XXXXX - (2) XXXXX 14. Section 4 (1) of the Act is the initial notice that is to be issued by the Estate Officer before taking proceedings under the Act. Section 4 reads as under: ## _**4. Issue of notice to show cause against order of eviction.-**_ _(1) If the estate officer is of opinion that any persons are in unauthorised occupation of any public building and that they should be evicted, the estate officer_ W.P.C.No.23404/2012 7 _shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made._ _(2) The notice shall -_ _(a) specify the grounds on which the order of eviction is proposed to be made; and_ _(b) require all persons concerned, that is to say, all persons who are, or may be, in occupation of, or claim interests in, the public building, to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not earlier than ten days from the date of issue thereof._ _(3) The estate officer shall cause the notice to be served by having it affixed on the outer door or some other conspicuous part of the public building, and in such other manner as may be prescribed, whereupon the notice shall be deemed to have been duly given to all persons concerned._ _(4) Where the estate officer knows or has reason to believe that any persons are in occupation of the public building, then,_ W.P.C.No.23404/2012 8 _without prejudice to the provisions of subsection (3), he shall cause a copy of the notice to be served on every such person by post or by delivering or tendering it to that person in such other manner as may be prescribed.”_ A reading of Section 4 by itself would indicate that the Estate Officer has to form an opinion, that any persons are in unauthorised occupation of any public building, before issuing notice. The notice dated 01/11/2010 issued by the Estate Officer is part of the file produced by the Learned Government Pleader. It indicates that the possession of the premises was given as per a licence agreement dated 07/10/1999 for a period of one year from 10/10/1999 and thereafter by virtue of separate agreement it was being extended. When the agreement was extended as per Ext.P4 the condition was that the petitioner could continue for a period of three months or until the tender is finalised whichever is earlier or until ordered otherwise by the Government/HDC. A operative portion of Ext.P4 at Clause 5 W.P.C.No.23404/2012 9 reads as under: _“This period of this agreement shall be for a period of three months from 11/10/2006 or tender finalised whichever is earlier or until ordered otherwise by the Government/HDC.”_ 15. Notice further indicates that the tender proceedings commenced only in 2008 and when a writ petition was filed by the petitioner before the High Court, there was a direction issued to consider his representation. Thereafter the petitioner had approached the Civil court and the order of interim injunction is only restraining the respondents from forcibly evicting the petitioner. According to the estate officer, the possession of the premises by the petitioner from 10/01/2007 is without valid permission and therefore unauthorised and that he is liable to pay an amount of Rs.49,98,276/- as licence fee for the unauthorised occupation. 16. Petitioner had given a reply on 12/11/2010 contending that he is a statutory tenant, that it is not a public building and that the proceedings are initiated only to W.P.C.No.23404/2012 10 harass him. A statement is also furnished to the petitioner relating to the damages for the unauthorised occupation of the premises. Proceedings were taken in terms of the procedure prescribed and final orders were passed by the Estate Officer. 17. In the impugned order, the Estate Officer has found that though the period expired on 10/01/2007 and the licence fee or rent was received upto June 2008 purportedly on the basis of the agreement conditions in terms of Ext.P4 as extracted above. 18. Therefore it is evident that the period of the agreement was valid only for three months from 11/10/2006 or till the tender is finalised or until ordered otherwise by the Government/HDC. If the rent or licence fee is collected by the hospital authorities it can only mean that they have extended the period until that time. Therefore after June 2008, the licence fee or rent has not been received which means that after the said date, the occupation of the premises by the petitioner is unauthorised. This exactly is W.P.C.No.23404/2012 11 the finding of the Estate Officer. Hence the contention of the petitioner that the lease was not terminated prior to issue of notice under Section 4 of the Act is not sustainable. There is a specific contract between the parties that the right to continue the premises shall cease on a particular day and receipt of rent or licence fee until June 2008 is only in terms of Clause 5 of Ext.P4 which is the contract between the parties. Thereafter definitely there is no holding over or there is no contract by which the petitioner can remain in possession. Hence the petitioner's possession in the premises after 10/06/2008 is absolutely unauthorised and it was open for the Estate Officer to have taken proceedings under the Act. 19. The contention of the petitioner that the Estate Officer's proceedings has to be kept in abeyance till the continuation of the proceedings taken before the civil court is absolutely unsustainable. The suit is only for an injunction to restrain the petitioner from being forcibly evicted. That apart, this Court at Ext.P7 judgment had clearly indicated W.P.C.No.23404/2012 12 that the order of injunction against forcible eviction will not clothe the petitioner herein with any authority to run the light refreshment stall, if he is not otherwise entitled to do so. In fact, it is after the aforesaid judgment that the proceedings were taken by the Estate Officer under the Act. 20. The question whether the arrangement between the parties was a lease or licence has been agitated by the petitioner before the Estate Officer. That apart, even in respect of a lease, if the period of lease had expired it will be open for the authorities under the Act to take proceedings in accordance with law. This position of law is covered by the judgment of the Supreme Court in **Corporation of Calicut v. Sreenivasan** _[2002(2) KLT 291 (SC)]_ wherein the Supreme Court has held that the word unauthorised occupation within the meaning of Section 2(f) of the Act includes within its ambit the case of licencee as well after the expiry of the period of licence. It is also held that it is not confined to a case of lease alone. Therefore considering the fact that, even if it is a lease, going by clause 5 of Ext.P4 W.P.C.No.23404/2012 13 referred above, the HDO, the other party to the agreement receiving rent upto June 2008, that is till the tenders were invited will not clothe the petitioner to contend that he is a tenant holding over and is not liable to be evicted without issuing notice terminating lease. Having regard to the aforesaid circumstances I am of the view that the petitioner is not entitled for any relief and the authorities below have properly considered the contentions of the petitioner. Exts.P1 and P2 orders does not suffer from any illegality and does not require interference. 21. Another ground raised is with regard to lack of notice under Section 8 of the Act. In fact, in the notice issued by the Estate Officer, specific claim has been made for usage of occupation of the premises for an amount of Rs.49,98,276/- which was the amount payable as on the said date and a statement was also furnished which includes interest as well. While passing the impugned order the amounts had been computed until the date of passing the order. The amounts were calculated during the pendency of W.P.C.No.23404/2012 14 the proceedings as well which cannot be found fault with. 22. Under these circumstances, I am of the view that none of the grounds raised by the petitioner is sufficient to invoke jurisdiction of this Court under Article 226 of the Constitution of India. The Act is a special Act promulgated only for the purpose of evicting unauthorised occupants of Government land without any delay. The petitioner was in a position to resist the proceedings for a considerably long period. The same should not be continued further. In the result, this writ petition is dismissed. (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.23404/2012 15 W.P.C.No.23404/2012 16