KERALA REVENUE TOWER SHOP USERS ASSOCIATION v. KERALA STATE HOUSING BOARD and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 27TH DAY OF MARCH 2017/6TH CHAITHRA, 1939** ## **WP(C).No. 28369 of 2007 (B)** **----------------------------** **PETITIONER(S):** - **----------------------** **KERALA REVENUE TOWER SHOP USERS ASSOCIATION, REPRESENTED BY ITS SECRETARY, GF 71, REVENUE TOWER, ADOOR, PATHANAMTHITTA.** **BY ADVS.DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR** - **RESPONDENT(S): -----------------------** **1. KERALA STATE HOUSING BOARD, REPRESENTED BY ITS SECRETARY, SANTHI NAGAR, THIRUVANANTHAPURAM.** **2. THE EXECUTIVE ENGINEER, (COMPETENT AUTHORITY), KERALA STATE HOUSING BOARD, PATHANAMTHITTA DIVISION, THIRUVALLA.** **3. THE ASSISTANT ENGINEER, KERALA STATE HOUSE BOARD, IN CHARGE OF REVENUE TOWER, ADOOR, PATHANAMTHITTA DIVISION, THIRUVALLA.** **R1 TO R3 BY ADV. POOVAPPALLY M.RAMACHANDRAN NAIR,SC.K.S.H.B. R1 TO R3 BY ADV. SRI.K.DENNY DEVASSY, SC, K.S.H.B.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 28369 of 2007 (B)** **----------------------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXT.P1 TRUE COPY OF THE LIST OF NAMES OF THE MEMBERS OF THE ASSOCIATION AND THE RESPECTIVE ROOMS UNDER THEIR OCCUPATION. EXT.P2 TRUE COPY OF ONE LEASE AGREEMENT EXECUTED BETWEEN THE FIRST RESPONDENT AND OCCUPANT OF ONE OF THE ROOM DATED 26-5-2004 EXT.P3 TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT TO ONE OF THE OCCUPANTS DATED 23-8-2007 EXT.P4 TRUE COPY OF THE REPRESENTATION FILED BY THE SECRETARY OF THE PETITIONERS' ASSOCIATION BEFORE THE CHAIRMAN OF THE FIRST RESPONDENT DATED 23-7-2007 EXT.P5 TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE FIRST RESPONDENT DATED 21-8-2007** ## **RESPONDENTS' EXHIBITS** ## **NIL** **//True Copy//** **P.A. To Judge** ## **Bb** ## **ANIL K.NARENDRAN, J.** ......................................................... **W.P.(C)No.28369 of 2007** ......................................................... **Dated this, the 27[th] day of March, 2017** ## **JUDGMENT** The petitioner is stated to be an association of shop users in the Revenue Tower at Adoor in Pathanamthitta District, constructed by the Kerala State Housing Board (for brevity, 'the Board'). The petitioner has approached this Court in this writ petition seeking for a writ of mandamus commanding the first respondent to consider and pass appropriate orders on Exts.P4 and P5 representations, within a time limit, and for a declaration that the members of the petitioner association are not liable to pay any contribution towards common area expenditure. The petitioner has also sought for a declaration that the members of the association are entitled to get renewal of lease for a further period of 3 years with enhancement of rent by 20% as provided in Ext.P2. The further relief sought for is a writ of mandamus commanding the second and third respondents not to evict the members of the petitioner association by the use of force or otherwise. 2. The reliefs sought for in the writ petition are opposed by the respondents by filing a counter affidavit dated 05.11.2007. 3. I heard the arguments of the learned counsel for the petitioner and also the learned Standing Counsel for the Kerala State Housing Board representing respondents 1 to 3. W.P.(C)No.28369 of 2007 : 2 : 4. The pleadings and materials on record would show that the first respondent Board has constructed a Revenue Tower at Adoor in Pathanamthitta District consisting of nearly 100 rooms in cellar, ground floor and first floor. According to the petitioner, Ext.P1 list contains the name of the its members, who are occupants of shop rooms in the said Revenue Tower. Ext.P2 is a copy of lease agreement dated 26.05.2004 executed between the first respondent Board and one Shri.S.Chandrangathan, who is an occupant of Shop Room No.70 in the ground floor of the Revenue Tower at Adoor. 5. The petitioner is mainly aggrieved by the notices issued by the second respondent to the occupants of the Revenue Tower demanding arrears of rent as well as payment towards common amenity charges. Ext.P3 is one such notice issued to Shri.P.R.Raju, who is in occupation of shop room No.CF-3, by which he was directed to pay a total sum of Rs.13,900/- together with interest, which consists of a sum of Rs.7,070/- towards arrears of rent at the rate of Rs.1,010/- for seven months and a further sum of Rs.6,830/- towards arrears of common amenity charges at the rate of Rs.295/- for 23 months. In Ext.P3, it has been stated that, if the occupant concerned fails to pay the arrears, he will be treated as an unauthorised occupant in the Board's premises and will be evicted therefrom under Section 85(5) of the Kerala State Housing Board W.P.(C)No.28369 of 2007 : 3 : Act, 1971 (for brevity, 'the Act'). 6. On receipt of Ext.P3 and similar notices, the petitioner association submitted Ext.P4 representation dated 23.07.2007 before the Chairman of the first respondent Board. The petitioner association has also released Ext.P5 notice dated 21.08.2007, highlighting the grievances of the occupants of the Revenue Tower at Adoor. Thereafter, the petitioner association has approached this Court in this writ petition seeking various reliefs. 7. Despite several adjournments no statement has been filed on behalf of the respondents. Therefore, on 30.10.2007, this Court granted an order of status quo until further orders. The said order is still in force. 8. A counter affidavit has been filed on behalf of the respondents, justifying the demand for arrears of rent and also the common amenity charges. In order to substantiate the said contention, the respondents would rely on various provisions under Ext.P2 lease agreement. 9. The first question that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P3 and similar notices issued by the second respondent against the occupants of the Revenue Tower at Adoor. 10. As evident from Ext.P3, such notices were issued to the occupants, as there was arrears of rent and non payment of W.P.(C)No.28369 of 2007 : 4 : common amenity charges. One of the contentions raised by the petitioner association is that, under Ext.P2 lease agreement the first respondent Board is not entitled to claim any common amenity charges. The said contention of the petitioner is devoid of merit in view of the specific provision under Clause 12 of Ext.P2 lease agreement, which reads thus: “12. The proportionate amount of various charges such as lift, electricity charges and cleaning charges etc. shall be remitted to the Housing Board by the Lessee along with the rent on demand.” 11. The aforesaid provision in Ext.P2 lease agreement makes it explicitly clear that a person in occupation of shop room in the Revenue Tower in question is bound to pay the proportionate amount of common amenity charges. In such circumstances, the contention of the petitioner that, the members of the association are not liable to pay any amount to the first respondent Board towards common amenity charges can only be repelled and I do so. 12. In the counter affidavit, the specific stand taken by the first respondent Board is that, the members of the petitioner association have not filed any objection to the show cause notice issued by the competent authority as required under Section 85(2) of the Act. Though a copy of the counter affidavit was served on the learned counsel for the petitioner on 07.11.2007, the petitioner association has not chosen to file any reply affidavit refuting the W.P.(C)No.28369 of 2007 : 5 : specific allegations contained therein. 13. The learned Standing Counsel for the first respondent Board would also point out that, the persons who are listed in Ext.P1 as occupants of shop rooms in the Revenue Tower at Adoor are not the actual allottees of such shop rooms and as such, they have absolutely no legal right to occupy those rooms in view of the specific conditions in the lease deed executed by the original allottees. This Court is not expressing anything on the said submission made by the learned Standing Counsel for the Board. However, it is made clear that, if any such persons are in unauthorised occupation of the shop rooms under the cover of the interim order granted by this Court in this writ petition, it is for the second respondent to take necessary steps in accordance with law to evict such unauthorised occupants. 14. Admittedly, the occupants of the shop room, who are stated to be members of the petitioner association, have defaulted payment of rent and also the common amenity charges. In such circumstances, the second respondent cannot be found fault with in issuing Ext.P3 and similar notices to the members of the petitioner association, invoking the provisions under Section 85 of the Act. 15. In **State of Orissa v. Ram Chandra Dev (AIR 1964 SC 685)** a Constitution Bench of the Apex Court held that, though the jurisdiction of the High Court under Article 226 of the W.P.(C)No.28369 of 2007 : 6 : Constitution is wide, the concluding words of that Article clearly indicate that before a writ or an appropriate order can be issued in favour of a party, it must be established that the party has a right and the said right is illegally invaded or threatened. Para.8 of the judgment reads thus; "8. .... Under Article 226 of the Constitution, the jurisdiction of the High Court is undoubtedly very wide. Appropriate writs can be issued by the High Court under the said article even for purposes other than the enforcement of the fundamental rights and in that sense, a party who invokes the special jurisdiction of the High Court under Article 226 is not confined to cases of illegal invasion of his fundamental rights alone. But though the jurisdiction of the High Court under Article 226 is wide in that sense, the concluding words of the article clearly indicate that before a writ or an appropriate order can be issued in favour of a party, it must be established that the party has a right and the said right is illegally invaded or threatened. The existence of a right is thus the foundation of a petition under Article 226. ......." 16. In **Vinoy Kumar v. State of U. P. (2001 (4) SCC 734)** the Apex Court held that, the relief under Article 226 of the Constitution is based on the existence of a right in favour of the person invoking the jurisdiction. The exception to the general rule is only in cases where the writ applied for is a writ of habeas corpus or quo warranto or filed in public interest. It is a matter of prudence, that the Court confines the exercise of writ jurisdiction to cases where legal wrong or legal injuries caused to a particular person or W.P.(C)No.28369 of 2007 : 7 : his fundamental rights are violated, and not to entertain cases of individual wrong or injury at the instance of third party where there is an effective legal aid organisation which can take care of such cases. Para.2 of the judgment reads thus; "2. Generally speaking, a person shall have no locus standi to file a writ petition if he is not personally affected by the impugned order or his fundamental rights have neither been directly or substantially invaded nor is there any imminent danger of such rights being invaded or his acquired interests have been violated ignoring the applicable rules. The relief under Art.226 of the Constitution is based on the existence of a right in favour of the person invoking the jurisdiction. The exception to the general rule is only in cases where the writ applied for is a writ of habeas corpus or quo warranto or filed in public interest. It is a matter of prudence, that the Court confines the exercise of writ jurisdiction to cases where legal wrong or legal injuries caused to a particular person or his fundamental rights are violated, and not to entertain cases of individual wrong or injury at the instance of third party where there is an effective legal aid organisation which can take care of such cases. Even in cases filed in public interest, the Court can exercise the writ jurisdiction at the instance of a third party only when it is shown that the legal wrong or legal injury or illegal burden is threatened and such person or determined class of persons is, by reason or poverty, helplessness or disability or socially or economically disadvantages W.P.(C)No.28369 of 2007 : 8 : ## position, unable to approach the Court for relief." 17. In **Pournamy Mohan v. State of Kerala (2012 (1) KLT 686)** a learned Judge of this Court deprecated the practice of filing writ petitions by 'associations' and 'federations' of the Managements of Colleges without the individual Managements figuring as petitioners. In the said decision it was held that, the makers of the Constitution have advisedly made a clear distinction between a fundamental right available to 'any person' and those guaranteed to 'all citizens'. Part III of the Constitution of India deals with the same and all citizens are persons, even though all persons are not citizens. A registered federation might be a person entitled to file a writ petition and is not a citizen who alone can complain of violation of Article 19(1)(g) of the Constitution of India. 18. Admittedly, the present writ petition is not one filed in public interest. Even in cases filed in public interest, this Court can exercise the writ jurisdiction at the instance of a third party only when it is shown that, the person or a determined class of persons who suffered legal injury or legal wrong is, by reason or poverty, helplessness or disability or socially or economically disadvantages position, unable to approach this Court for relief. In the instant case, it cannot be said that the members of the petitioner Association are prevented by any such reason to approach this Court under Article 226 of the Constitution seeking appropriate W.P.(C)No.28369 of 2007 : 9 : relief. 19. In that view of the matter, the petitioner association has no locus standi to approach this Court under Article 226 of the Constitution seeking seeking a declaration that the members of the association are entitled to get renewal of lease for a further period of 3 years with enhancement of rent by 20% as provided in Ext.P2, or seeking a writ of mandamus commanding the second and third respondents not to evict the members of the petitioner association by the use of force or otherwise. 20. Admittedly, a lease deed similar to Ext.P2 entered into between the first respondent Board and the allottee of the shop room in the Revenue Tower is a non-statutory contract. If that be so, the rights and liberties of the parties to such a lease deed are governed by the terms of the contract. In **Noble Resources Ltd. v.** **State of Orissa (2006 (10) SCC 236)** the Apex Court held that, ordinarily, a specific performance of contract would not be enforced by issuing a writ of or in the nature of mandamus, particularly when keeping in view the provisions of the Specific Relief Act, 1963 damages may be an adequate remedy for breach of contract. In that view of the matter, if the members of the petitioner association have a case that there is violation of the terms of the respective lease deed, the proper remedy is not to approach this Court in a writ petition filed under Article 226 of the Constitution of India. W.P.(C)No.28369 of 2007 : 10 : 21. In such circumstances, I find absolutely no grounds to interfere with the proceedings initiated by the second respondent based on Ext.P3 and similar notices issued to the members of the petitioner association, who are occupants of the shop rooms in the Revenue Tower at Adoor, who have defaulted payment of monthly rent as well as the common amenity charges. In view of the specific provisions in Ext.P2 lease agreement, which is binding on the occupants of the shop rooms, the petitioner association cannot contend that the occupants of the shop rooms are not liable to pay any common amenity charges to the first respondent Board. In case of any default in remitting the common amenity charges or the monthly rent, it would be open to the second respondent to evict such unauthosied occupants from the shop rooms in the Revenue Tower at Adoor, after initiating proceedings in accordance with law, with notice to such occupants. In the result, the writ petition fails and the same is accordingly dismissed. No order as to costs. Sd/- **ANIL K.NARENDRAN, JUDGE** Bb/28/03/2017 ## _**[True copy]**_ _**P.A to Judge**_