Francis N.D. and others v. State of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 1ST DAY OF AUGUST 2018 / 10TH SRAVANA, 1940** **WP(C).No. 8691 of 2013** **----------------------** ## **PETITIONERS:** ## **-----------** |**1.**|**FRANCIS N.D,**| |---|---| ||**NADUVILAPARAMBIL HOUSE, CAREER STATION ROAD,**| ||**ERNAKULAM SOUTH, KOCHI-682016.**| |**2.**|**SISILY BABY, KARAKKAT HOUSE,**| ||**CAREER STATION ROAD, ERNAKULAM SOUTH,**| ||**KOCHI-682016.**| |**3.**|**PHILOMINA VARGHESE,PARATHARA HOUSE,**| ||**CAREER STATION ROAD, ERNAKULAM SOUTH,**| ||**KOCHI-682016.**| |**4.**|**SUNIL KUMAR.K.A, AGED 35 YEARS,**| ||**S/O.K.P.ANANTHAN, KILIKKODAN PARAMBU HOUSE,**| ||**CAREER STATION ROAD, ERNAKULAM SOUTH,**| ||**KOCHI-682016.**| ||**BY SRI.K.RAMAKUMAR (SENIOR ADVOCATE)**| ||**ADVS.SRI.S.M.PRASANTH**| ||**SMT.SMITHA GEORGE**| |**RESPONDENTS:**|| |**------------**|| |**1.**|**STATE OF KERALA, REPRESENTED BY**| ||**THE SECRETARY TO THE DEPARTMENT OF REVENUE,**| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM, PIN-695001.**| |**2.**|**THE DISTRICT COLLECTOR,**| ||**ERNAKULAM,KOCHI-682030.**| |**3.**|**THE TAHSILDAR, KANAYANNUR TALUK,**| ||**ERNAKULAM,KOCHI-682011.**| |**4.**|**THE CORPORATION OF KOCHI,**| ||**REPRESENTED BY ITS SECRETARY,**| ||**ERNAKULAM, KOCHI-682011.**| ||**R1 TO R3 BY SENIOR GOVERNMENT PLEADER SMT.MARY BEENA JOSEPH**| ||**R4 BY SRI.RAAJESH S.SUBRAHMANIAN, SC**| ||**SRI.V.V.JOSHI, SC**| ||**SRI.P.K.SOYUZ, SC**| ||**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD**| ||**ON 01-08-2018 ALONG WITH WPC.17823/2013, THE COURT**| ||**ON THE SAME DAY DELIVERED THE FOLLOWING:**| |**mbr/**|| **WP(C).No. 8691 of 2013 (J) -------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** ## **---------------------** |**EXHIBIT-P1(A):**|**TRUE COPY OF THE SHOW CAUSE NOTICE DATED 4.1.2013**| |---|---| ||**ISSUED TO THE IST PETITIONER.**| |**EXHIBIT-P1(B):**|**TRUE COPY OF THE SHOW CAUSE NOTICE DATED 4.1.2013**| ||**TO THE 2ND PETITIONER.**| |**EXHIBIT-P1(C:**|**TRUE COPY OF THE SHOW CAUSE NOTICE DATED 4.1.2013**| ||**ISSUED TO THE 3RD PETITIONER.**| |**EXHIBIT-P1(D):**|**TRUE COPY OF THE SHOW CAUSE NOTICE DATED 4.1.2013**| ||**TO THE 4TH PETITIONER.**| |**EXHIBIT-P2:**|**TRUE COPY OF THE INTERIM ORDER DATED 14.2.2013 IN**| ||**WP(C)21701 OF 2012.**| |**EXHIBIT-P3(A):**|**TRUE COPY OF THE REPLY DATED 17.1.2013 GIVEN BY THE**| ||**IST PETITIONER.**| |**EXHIBIT-P3(B):**|**TRUE COPY OF THE REPLY DATED 17.1.2013 GIVEN BY THE**| ||**2ND PETITIONER.**| |**EXHIBIT-P3(C):**|**TRUE COPY OF THE REPLY DATED 17.1.2013 GIVEN BY THE**| ||**3RD PETITIONER.**| |**EXHIBIT-P3(D):**|**TRUE COPY OF THE REPLY DATED 17.1.2013 GIVEN BY THE**| ||**4TH PETITIONER.**| |**EXHIBIT-P4: **|**TRUE COPY OF THE COMMUNICATION DATED 18.2.2013 ISSUED**| ||**BY THE 4TH RESPONDENT TO THE 4TH PETITIONER.**| |**EXHIBIT-P5(A):**|**TRUE COPY OF THE IDENTITY CARD ISSUED TO THE**| ||**IST PETITIONER BY THE 4TH RESPONDENT.**| |**EXHIBIT5-P5(B):**|**TRUE COPY OF THE IDENTITY CARD ISSUED TO THE**| ||**2ND PETITIONER BY THE 4TH RESPONDENT.**| |**EXHIBIT-P5(C):**|**TRUE COPY OF THE IDENTITY CARD ISSUED TO THE**| ||**3RD PETITIONER BY THE 4TH RESPONDENT.**| |**EXHIBIT-P5(D):**|**TRUE COPY OF THE IDENTITY CARD ISSUED TO THE**| ||**4TH PETITIONER BY THE 4TH RESPONDENT.**| |**RESPONDENTS' EXHIBITS:**<br>**NIL**|| |**----------------------**|| **/TRUE COPY/** **P.S.TO JUDGE** **mbr/ 06.08.2018.** ## **P.V.ASHA J.** ## **-----------------------------------W.P.(C).Nos.8691 & 17823 of 2013** **-------------------------------------** Dated this the 1[st] day of August, 2018 ## **J U D G M E N T** Petitioners in W.P.(C).No.17823 of 2013, who are permanent contingent employees working in the Corporation of Kochi in Circle Nos.17, 13 and 6 respectively, are aggrieved by the inaction of the respondent Corporation in allotting them quarters. They pointed out that respondents 4 to 7, who are the petitioners in W.P.(C) No.8691 of 2013 are unauthorizedly occupying the quarters, which are constructed for the purpose of accommodating the permanent contingent employees of the Corporation. The parties and documents referred to in this judgment are as described in the W.P.(C) No.17823 of 2013, unless otherwise specified. W.P.(C).Nos.8691 & 17823 of 2013 **==> picture [7 x 9] intentionally omitted <==** 2. Petitioners who are contingent employees in the Corporation are required to work in early hours. They are residing in rented accommodations and are reporting for duty with much difficulty. Petitioners point out that it is the requirement of the Corporation also to see that they are accommodated near to their work place. Corporation is having quarters for the Contingent employees at Ezhumury Colony in career Station Road, Mattancherry, etc. Based on applications submitted by petitioners for allotment of quarters, they are included in Ext.P2 list of eligible contingent workers for allotment of quarters at Sl.Nos.4, 5 and 20. This list was published as early as on 02.04.2012. 3. Petitioners point out that even though the quarters were available, as the respondents were not taking any action to allot the same, one W.P.(C).Nos.8691 & 17823 of 2013 **==> picture [7 x 10] intentionally omitted <==** Smt.K.R.Elizebath, who is Sl.No.9 in Ext.P1 list, filed W.P.(C).No.21701 of 2012. When her writ petition came up for consideration, the Standing Counsel for the Corporation submitted that the quarters for the permanent contingent employees are occupied unauthorisedly by several persons. This Court, had, as per Ext.P2 interim order dated 14.02.2013, recorded the submission of the learned Standing Counsel that steps were being taken to evict unauthorised occupants and accordingly, the Corporation was directed to allot quarter No.456 in Ward No.57 of Ezhumuri Colony, Career Station Road to the petitioner therein, within a period of one week. Thereafter that writ petition was disposed of, as per Ext.P3 judgment dated 18.03.2013, recording the compliance of the interim order. 4. It is pointed out by the learned counsel W.P.(C).Nos.8691 & 17823 of 2013 **==> picture [7 x 9] intentionally omitted <==** for the petitioners that only one among themSmt.K.R.Elizebath could get accommodation, that too on account of the interference of this Court. Petitioners also pointed out that Ext.P4 list issued by the respondents, which contains the details of the contingent workers' family quarters would show the names of several persons who are not in any way connected with the Corporation. It is pointed out that in Circle No.17 (Ezhumury Colony) Sl.No.2, 3 and 5, are persons who are not working in the Corporation; their spouses or family members do not work in the Corporation and they are occupying the quarters unauthorisedly. It is also pointed out that 6[th] respondent is a Government employee and the party respondents are having other buildings to reside. Even though, the petitioners had a case that the 7[th] respondent, who is Sl.No.1 in Circle No.17 in Ext.P4 W.P.(C).Nos.8691 & 17823 of 2013 **==> picture [7 x 10] intentionally omitted <==** list, was also an unauthorised occupant, petitioners point out that the he has since been made a permanent contingent employee and therefore they do not press the contention as against the 7[th] respondent. 5. The case of the petitioners is that respondents 4 to 7 are unauthorised occupants whom the Corporation is not evicting and in the event of such eviction, petitioners would be able to get those quarters allotted to them. Even though, petitioners had submitted representations Exts.P5 to P7, the respondent Corporation did not take any positive action. Petitioners point out that the Corporation is not taking action under the Kerala Public Buildings (Eviction of Unauthorised occupants) Act, 1968 and is permitting the strangers to occupy the quarters in violation of the Rules for allotment and Occupation of Government Servants' Quarters in Kerala. W.P.(C).Nos.8691 & 17823 of 2013 **==> picture [7 x 10] intentionally omitted <==** 6. Respondent 2 and 3 filed a counter affidavit stating that there are only 149 quarters as against 823 permanent contingent employees in the Corporation and quarters are allotted in accordance with priority. At the same time, it is stated that a few of the quarters are occupied by legal heirs of the deceased employees. It is also stated that a sub committee appointed by the Corporation had submitted a report in which it was stated that unauthorised occupants are residing in a few quarters. It is also stated that respondents 4 to 7 are occupying the quarters unauthorisedly and that Corporation is taking steps to evict them and to allocate the quarters to deserving contingent employees. 7. Respondents 4 to 7 have filed a counter affidavit. According to them the Corporation does not have any authority to evict them from the premises as 7 ## W.P.(C).Nos.8691 & 17823 of 2013 they are in possession of the property for decades and on account their continuous occupation Corporation has lost rights, if any, over the property. The proceedings initiated by the Corporation to evict them are stayed by this court in W.P.(C).No.8691 of 2013. 8. Respondents 4 to 7 have filed W.P. (C).No.8691 of 2013 challenging the proceedings initiated by the Corporation to evict them. In that writ petition, their case is that the Corporation had issued them notices dated 04.01.2013 (which are produced as Ext.P1 series therein), asking them to give vacant possession of the quarters which are illegally occupied by them. The notices were issued referring to an order passed by this Court in W.P. (C).No.21701 of 2012 (produced as Ext.P2). In this notice, the Health Officer of the Corporation had W.P.(C).Nos.8691 & 17823 of 2013 **==> picture [7 x 10] intentionally omitted <==** stated that they were unauthorisedly occupying the said quarters, which are to be allotted in accordance with the order of this Court in W.P.(C).No.21701 of 2012. 9. Pursuant to Ext.P1 series of notice they had submitted their replies (produced as Ext.P3 series therein) stating that their ancestors who were Scavengers of the Cochin corporation started residing in the premises along with their family members several years ago and their generations continue to occupy the same, along with the members of their families for the last several years. They also pointed out that they were not parties to W.P. (C).No.21707 of 2012 and any order passed in the said writ petition would not affect them. They claimed that they have got all documents to prove their right to continue there. The Corporation thereafter issued W.P.(C).Nos.8691 & 17823 of 2013 **==> picture [7 x 10] intentionally omitted <==** Ext.P4 notice dated 18.02.2013, directing them to produce the relevant documents in proof of their title over the property, within 3 days. The respondents 4 to 7 claim that they have produced Exts.P5 series of identity cards issued by Cochin Corporation to the residents of Cochin Corporation Puramboke. It is pointed out that in these identity cards issued in the name of the house holders, the number of years of residence, the name and age of the members in the family (including their names), etc are given. According to them, their families started residing there from 1946, 1943, 1938 and 1968 respectively, as stated in the identity cards and therefore they are not liable to be evicted, though they are not employed in the Corporation. It is their further contention that when they have been occupying the premises for more than 30 years, the respondent W.P.(C).Nos.8691 & 17823 of 2013 **==> picture [13 x 10] intentionally omitted <==** Corporation cannot evict them. 10. The learned counsel for the petitioners submits that on account of the stay order passed by this Court in W.P.(C).No.8691 of 2013, the Corporation has not taken any action to allot them quarters. The learned Standing Counsel for the Corporation also submits that they are not in a position to proceed further on account of the interim order passed by this Court. 11. Heard the respective learned Counsel appearing for the petitioners in both the cases and the learned Standing Counsel for the Corporation. 12. The respondents 4 to 7 do not have a case that they are employees of the Corporation. They do not have a case that any of their family members are presently working in the Corporation. However their claim is that their predecessors were working as W.P.(C).Nos.8691 & 17823 of 2013 **==> picture [13 x 9] intentionally omitted <==** Scavengers and they started occupation of the premises and therefore, on account of their continued possession of the premises, they are not liable to be evicted. As their claim is based on Ext.P5 series of identity cards (in W.P.(C) 8691/2013) issued to the residents of Cochin Corporation Puramboke, they admit that they are encroachers of the puramboke of Cochin Corporation. When unauthorised occupation is found in the property/puramboke of the Corporation it is for the Corporation to take action to evict the encroachers in accordance with law. If the quarters is meant for the contingent employees it is for the Corporation to see that it is allotted to those who are eligible, rather than permitting strangers to occupy the quarters while denying the facility of accommodation to the poor contingent employees who are to work in the early hours to keep the city 12 W.P.(C).Nos.8691 & 17823 of 2013 clean. 13. It is also relevant to note that the respondent Corporation has referred to the judgment of this Court, as a reason for issuing the notices. The contention of the respondents 4 to 7 that they are not liable to be proceeded against since they are not parties to the writ petition referred to in the notice, cannot be accepted. Corporation has every authority to evict those who are found to be occupying any of its properties unauthorisedly, even in the absence of any directions from any court of law. Though it is true that the respondents 4 to 7 were not parties to that writ petition, that by itself will not disable the Corporation from taking action against those who are occupying the quarters without allotment by the Corporation and those who are not employed in the Corporation. That will also W.P.(C).Nos.8691 & 17823 of 2013 **==> picture [13 x 10] intentionally omitted <==** not enable the respondents to continue possession in the quarters if it is unauthorised. The Corporation is bound to take action to protect its property from encroachment and to see that it is utilised for the purpose for which it is constructed. Though the learned Counsel for the respondents 4 to 7 relied on the judgment of this court in **Harrisons Malayalam Ltd v State of Kerala** [2014 (4) KLT 371] and argued that the Corporation can proceed with the notices only after coming to a finding that it has jurisdiction to proceed and on a finding that respondents 4 and 7 are not in legal possession, I find that the dictum in the said judgment is not applicable in this case where the claim of the respondents 4 to 7 is that they are residing in the Puramboke of Cochin Corporation. The factual circumstances in Harrison Malayalam Plantation case are entirely different; W.P.(C).Nos.8691 & 17823 of 2013 **==> picture [13 x 9] intentionally omitted <==** they did not have a case that they were occupying Puramboke land. The reliance on the judgment in **Thomas v Lonappan** [2016 (4) KLT 637] in a case arising from a suit for specific performance is also misplaced. Nobody can claim a right to encroach public property. 14. From the pleadings and the contentions, it is seen that the respondents 4 to 7 approached this Court immediately on receipt of the show cause notices. They claim that they have produced the materials in support of their claim, before the Corporation, pursuant to Ext.P4 notice. However without waiting for further action, they filed the W.P.(C).No.8691 of 2013 and thus the respondents 4 to 7 are continuing there on the strength of the stay order passed by this Court in the year 2013. 15. Since the respondents had already issued W.P.(C).Nos.8691 & 17823 of 2013 15 notices and directed them to produce the documents and the documents are before the Corporation it is for the Corporation to take further proceedings pursuant to the notices already issued. The respondent Corporation is free to take further action, in accordance with law, after considering the documents produced by the respondents 4 to 7 and after affording them an opportunity of hearing to them and and the petitioners, within a period of 'two months' from the date of receipt of a copy of the judgment. In case it is found that the respondents 4 to 7 are unauthorisedly occupying the quarters, the respondent Corporation shall take action to evict them and allot the quarters to the petitioners without any further delay, at any rate within a further period of 3 weeks. 16. The respondent Corporation shall also W.P.(C).Nos.8691 & 17823 of 2013 **==> picture [13 x 10] intentionally omitted <==** consider the case of the 3[rd] petitioner in W.P. (C).No.17823 of 2013 for allotment of quarters at Kochi. These writ petitions are disposed of accordingly. Sd/- **P.V.ASHA, JUDGE.** AS