Harris.T.K v Greater Cochin Development Authority

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P. FRIDAY, THE 10[TH] DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944 WP(C) NO. 4542 OF 2023`** ## **`PETITIONER/S:`** ``` HARRIS.T.K, AGED 42 YEARS S/O AN GILLATH ABOOBACKER, T.K HOUSE, CHANDERA, POST MANIYEKAT, TRIKARIPUR VIA, KODAKKAD, KASARAGAOD, PIN - 671310 BY ADVS. THAYYIB SHA P.S. NABIL KHADER ``` ## **`RESPONDENT/S:`** ``` 1GREATER COCHIN DEVELOPMENT AUTHORITY REPRESENTED BY THE SECRETARY, KADAVANTHRA P.O, ERNAKULAM, PIN - 682020 2ACCOUNTS OFFICER(REVENUE) GCDA, KADAVANTHRA P.O, ERNAKULAM, PIN - 682020 SRI. PHILIP T. VARGHESE – SC, GCDA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` `WP(C) NO. 4542 OF 2023` 2 ## **`JUDGMENT`** Petitioner has approached this Court being aggrieved by Ext.P5 notice issued to the petitioner by the Greater Cochin Development Authority (the GCDA’). 2. The petitioner is a tenant under the GCDA. Ext.P5 notice has been issued to the petitioner, essentially requiring the petitioner to ensure that the petitioner's business must be confined to the area allotted to him under Ext.P.1 licence agreement and directing that all encroachments into common areas and any illegal extensions etc. must be removed. It is the case of the petitioner is that Ext.P5 has not been preceded by any show cause notice. Reference is made in this regard to Clause IV (9) of Ext.P1 lease deed where, according to the petitioner, it is stipulated that any action for eviction of the petitioner shall be in accordance with the provisions contained in **Kerala Public Building (Eviction of unauthorised** **Occupants) Act, 1968** (hereinafter referred to as ‘the Act’). 3. Learned counsel appearing for the petitioner `WP(C) NO. 4542 OF 2023` 3 places reliance on the judgment of the Hon’ble Supreme Court in **Cantonment Board, Meerut and Another V. Afzal [2019 KHC 6479]** , to contend that any action taken by the respondent without notice to the petitioner is clearly illegal and arbitrary. 4. Learned counsel appearing for the respondents would submit that Ext.P5 notice is only a notice requiring the petitioner to ensure that he conducts the business in the premises allotted to him in terms of Ext.P1 lease deed, that is, by confining his occupation to the area in respect of which Ext.P1 lease deed is executed. It is submitted that Ext.P5 cannot be construed as an action under the provisions of the Act. It is submitted that the petitioner has no right, as perExt.P1, to occupy any area other than the area allotted to him. Reference is made to Clause II (19) of Ext.P1 in this regard. 5. Having heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents, I am of the view that there is considerable merit in the contention taken by the learned counsel `WP(C) NO. 4542 OF 2023` 4 appearing for the respondents. Clause IV (9), which has been relied on by the learned counsel for the petitioner reads as follows:- ‘’9. If any of the covenants on the lessee’s part herein contained has not been performed or observed or if it is discovered that his deed has been obtained by suppression of any fact or by misstatement, misrepresentation or fraud or if there has been in the opinion of the Lessor whose decision shall be final, any breach by the Lessee or any person claiming under or through his if any of the covenants or conditions obtained herein, then and in any such case it shall be lawful for the Authority notwithstanding any waiver of any previous cause or right of re-entry upon the said Shop Room C- 1102 hereby demised to exercise the powers conferred on the Secretary under Kerala Public Building (Eviction of unauthorized Occupants) Act, 1968 and to re-enter upon the demised premises and thereupon this demise shall absolutely determine without prejudice to the right of action of the Authority in respect of the breach of any of the Lessee’s covenants herein contained and the Lessee shall be responsible for all the consequences resulting on accounts to such action and the Lessee shall be liable to pay the expenses incurred by the Authority on this account.’’ `WP(C) NO. 4542 OF 2023` 5 A reading of the said Clause makes it clear that action under the provisions of the Act is for the purposes mentioned therein. Ext.P5 cannot be constructed in any manner to be an action under the provisions of the Act. It only requires the petitioner to keep his activities confined to the area allotted to him in terms of Ext.P1 lease deed. A reading of Ext.P1 and, in particular, Clause II.(19) thereof makes it clear that the petitioner has no right to occupy any open space, and the entrance to the demised premises must always be free from all construction/obstructions. I am, therefore of the view that the reliefs sought in the writ petition, which is to quash Ext.P5 cannot be granted . The judgment of the Supreme Court in **Contonment Board (supra)** relates to the stoppage of unauthorised constructions. The Supreme Court has taken the view that such notice and order must comply with the principles of natural justice. There can be absolutely no quarrel whatsoever with the proposition laid down by the Supreme Court in the decision mentioned above. However, since I have already found that Ext.P5 cannot be construed to be an action against the petitioner either under the provisions of the Act or otherwise and since `WP(C) NO. 4542 OF 2023` 6 Ext.P.5 only requires the petitioner to confine his activities to the area allotted to him, there cannot be any dispute that such instructions given to the petitioner need not be preceded by any show-cause notice. The petitioner has absolutely no right, under the terms of Ext.P1, to occupy any space other than the area allotted to him. Therefore, even if the principles of natural justice were complied with, the petitioner cannot establish that he is entitled to occupy any area other than the area allotted to him. Therefore, absolutely no prejudice is caused to the petitioner by the issuance of Ext.P5. Futility or lack of prejudice is a ground to refuse relief even when a person complains of a violation of Natural Justice. In **M.C. Mehta v. Union of India** (1999) 6 SCC 237 it was held:- ‘22. … We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the courts can, in exercise of their “discretion”, refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma [State Bank of Patiala v. S.K. Sharma, (1996) 3 SCC 364 : 1996 SCC (L&S) `WP(C) NO. 4542 OF 2023` 7 717] , Rajendra Singh v. State of M.P. [Rajendra Singh v. State of M.P., (1996) 5 SCC 460] that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived.’ In **Board of Mining Examination and Chief Inspector of Mines v. Ramjee, (1977) 2 SCC 256** , it was held:- “Natural justice is no unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. **Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be — hit below the belt that is the conscience of the matter** . ” (emphasis is mine) `WP(C) NO. 4542 OF 2023` 8 I am clear in my mind that a person in permissive occupation of certain premises belonging to the GCDA cannot, at his whims and fancies, occupy other areas, including public spaces and common areas and then be heard to contend that action can be taken against him only in accordance with the principles of Natural Justice. The writ petition fails, and it is accordingly dismissed. **sd/-** **GOPINATH P. JUDGE** ajt `WP(C) NO. 4542 OF 2023` 9 ## **`APPENDIX OF WP(C) 4542/2023`** ``` PETITIONER EXHIBITS Exhibit P1 ``` ``` Exhibit P1TRUE COPY OF THE LEASE AGREEMENT DATED 28/09/2021 EXECUTED BETWEEN THE PETITIONER AND 1ST RESPONDENT Exhibit2 P2THE TRUE COPY OF THE REGISTRATION CERTIFICATE DATED 21/03/2022 Exhibit P3TRUE COPY OF THE LICENCE DATED 07/10/2022 ISSUED BY THE CORPORATION OF COCHIN Exhibit4 P4THE TRUE COPY OF THE REGISTRATION CERTIFICATE DATED 01/09/2022 Exhibit5 P5THE TRUE COPY OF THE ORDER DATED 03/02/2023 ```