Kondanath Beeran Haji S/o.Ahammed v. Thirurangady Grama Panchayat, Estate Officer, Thirurangady Grama Panchayat & District Collector, Malappuram District

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 28TH OCTOBER 2008 / 6TH KARTHIKA 1930 WP(C).No. 23802 of 2008(H) -------------------------- PETITIONER(S): --------------- KONDANATH BEERAN HAJI S/O.AHAMMED, AGED 58 YEARS, KAONDANATH HOUSE , THIRURANGADY POST 676 306 MALAPPURAM. BY ADV. SRI.MILLU DANDAPANI RESPONDENT(S): --------------- 1. THE THIRURANGADY GRAMA PANCHAYAT THIRURANGADY, MALAPPURAM DISTRICT REPRESENTED BY ITS SECRETARY. 2. THE ESTATE OFFICER THIRURANGADY GRAMA PANCHAYAT THIRURANGADY, MALAPPURAM DISTRICT . 3. THE DISTRICT COLLECTOR MALAPPURAM DISTRICT ADV. SRI.T.SETHUMADHAVAN FOR R1 SRI.PUSHPARAJAN KODOTH FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN HEARD ON 28/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= **==> picture [176 x 12] intentionally omitted <==** **==> picture [255 x 23] intentionally omitted <==** **==> picture [102 x 12] intentionally omitted <==** The petitioner was a lessee of a shop room in a shopping complex owned by the 1[st] respondent-Panchayat. On allegations of making alterations in the shop room without prior permission of the Panchayat, the Panchayat decided not to renew the lease after 31-32007. On the ground that since the lease period has expired which has not been renewed, the petitioners continued occupation of the shop room is unauthorised, the estate officer of the Panchayat initiated proceedings under the Kerala Buildings (Eviction of Unauthorised Occupants) Act, 1968, which resulted in Ext. P6 order, whereby the petitioner was directed to vacate the unauthorised occupation and to put the Panchayat in vacant possession of the shop room. The petitioner challenged Ext. P6 order before this Court, which resulted in Ext. P7 judgment, whereby the petitioner was directed to avail of alternate remedy by way of appeal before the District Collector. The petitioner filed Ext. P8 appeal, which was dismissed by the District Collector by Ext. P9 order. The petitioner is challenging Exts.P 6 and P9 orders. 2. The contention of the petitioner is that the very non-renewal of the lease itself is unsustainable in so far as although the petitioner had originally constructed a pit, which is required for the business of the petitioner in the shop room as per the directions of the Panchayat, the same had been filled up and the shop room has been brought to its original condition, and therefore the reason for non-renewal of lease is no more in existence. Therefore, the petitioner submits that the petitioner is entitled to have the lease extended and consequently Exts.P 6 and P9 orders are liable to be set aside. The petitioner therefore seeks the following reliefs: “1. Call for the records leading to the case and issue a writ of W.P.C. No. 23802/08 -: 2 :- Certiorari or any other appropriate writ, order or direction to quash Exhibit P4 order passed by the 2[nd] respondent and Exhibit P9 order passed by the 3[rd] respondent; 2. Issue a writ of mandamus or any other appropriate writ, order or direction directing the 1[st] respondent to produce the copy of the lease Deed executed between the petitioner and the 1[st] respondent to substantiate and appreciate the contentions of the lease and also clause 2(4) of the lease; 3. Declare that the respondent 2 and 3 have no jurisdiction to deal with the case of the petitioner treating the petitioner as an unauthorized occupant coming within the purviews of the Kerala Public Buildings (Eviction of Unauthorized Occupants) Act, 25 of 1968; 4. Issue a writ of mandamus or any other appropriate writ, order or direction directing the 3[rd] respondent to pass fresh speaking orders in the Exhibit P8 Appeal, if it is found that he is a competent officer to deal with the appeal under the said Act.” 3. A counter affidavit has been filed by the 1[st] respondent Panchayat. According to them, the petitioner effected material alterations to the shop building by digging a pit inside the shop room. The petitioner was given notice in writing to bring the shop room to its original condition. But, he refused to do the same. In spite of several written notices, the petitioner failed to comply with the direction. It is under the said circumstances the Panchayat decided to terminate the lease and to call upon the petitioner to vacate the premises. According to the 1[st] respondent, the petitioner has not so far challenged the non-renewal of the lease. Therefore, the lease period having expired on 31-3-2007, continued occupation of the shop room by the petitioner amounts to unauthorised occupation attracting the provisions of the Kerala Public Buildings (Eviction of Unauthorised Occupants) Act, 1968. In this respect, the 1[st] respondent Panchayat relies on the decision of the Supreme Court in **Corporation of Calicut** v. **Sreenivasan** , 2002(2) KLT 291 (SC) for the proposition that even though originally the occupation was authorised, on W.P.C. No. 23802/08 -: 3 :- cancellation or non-renewal of lease of licence, the continued occupation becomes unauthorised, attracting the provisions of the Kerala Public Buildings (Eviction of Unauthorised Occupants) Act, 1968. 4. I have considered the rival contentions in detail. 5. As rightly pointed out by the learned counsel for the Panchayat, the lease period expired on 31-3-2007 and the petitioner has not till date challenged the non-renewal of the lease. In fact, in Ext. P6 order itself, it is specifically stated that the tenancy itself has been terminated by issuing a notice under Section 106 of the Transfer of Property Act. Even in this writ petition, the petitioner does not specifically challenge the order of non-renewal of the lease. As far as the contention of the petitioner that the non-renewal of lease is not sustainable, in order to decide the same, ascertainment of facts on evidence would be necessary in so far as the petitioner alleges that immediately on receipt of notice the petitioner had restored the shop room to its original status whereas the Panchayat would contend that in spite or repeated notices, the petitioner refused to restore the shop room to its original state. That being so, even assuming that the petitioner's indirect challenge against the non-refusal of the lease can be countenanced, in view of the disputed facts, I do not think that I can consider that question in this writ petition. 6. The Panchayat has produced the lease deed issued in favour of the petitioner wherein clause 4 specifically states thus: “(4) Not to make or permit to be made under any circumstances any alterations in or additions to the demised buildings without the previous consent in writing of the lessor or its duly authorized officers PROVIDED ALWAYS that if the lessee is permitted to make my alternations by the lessor its duly authorized officers and the lessee shall not be entitled to any compensation thereof.” The petitioner has no case that before constructing the pit in the W.P.C. No. 23802/08 -: 4 :- room, the petitioner had obtained previous consent in writing of the Panchayat. That being so, construction of pit is a direct violation of the above condition in the lease deed. The petitioner himself has admitted that he had dug the pit without previous permission which is a violation of the lease condition. That being so, I do not think that the action of the Panchayat in refusing to renew the lease on account of the violation of the terms and conditions of the lease can be faulted. 7. In the above circumstances, although, originally the petitioner's occupation was authorised on expiry of the lease period on 31-3-2007, the occupation of the shop room by the petitioner becomes unauthorised. In the decision in **Sreenivasan's case** (supra), in paragraphs 6 and 17, the Supreme Court had held thus: “6. The necessity of enacting Kerala Public buildings (Eviction of Unauthorised Occupants) Act, 1968 by the Kerala Legislature appears to be that the tendency to unauthorisedly occupy public buildings, either from its very inception without any authority whatsoever or continuing in its occupation after the authority under which a person was allowed to occupy had either expired or had been determined for any reason whatsoever, was galloping fast and keeping in mind the time taken for eviction under ordinary law by resorting to civil suit in a protracted litigation, a speedy remedy has been provided by enacting such special legislation therefore. 'Public building' has been defined under S. 2(d) of the Act to mean 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. 'Corporation' has been defined under S. 2(aa) to mean a corporation established or constituted by or under any Central or State Act and owned or controlled by the Government of Kerala. Under S. 3 of the Act, the State Government is empowered to appoint any Gazetted Officer below the rank of District Collector as estate officer for exercising the powers under the Act and S.4 empowers the estate officer to initiate a proceeding for eviction of those persons who are found to be in unauthorised occupation of any public building whereas under S. 5 he is competent to pass an order of eviction. S. 10 provides for an appeal against the order of eviction. S. 15 of the Act creates a bar to the institution of a suit challenging the order of eviction passed by the estate officer as well as that passed in appeal. S. 2(f) of the Act which defines the expression 'unauthorised occupation' may be usefully quoted hereinbelow: W.P.C. No. 23802/08 -: 5 :- “S. 2(f) “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 another mode of transfer) under which he was allowed to occupy the building has expired or has been determined for any reason whatsoever. (Emphasis supplied) The definition of expression 'unauthorised occupation' contained in S. 2(f) of the Act is in two parts. In the first part, the said expression has been defined to mean the occupation by any person of the public building without authority for such occupation. It implies occupation by a person who has entered in occupation of any public building without lawful authority as well as occupation which was permissive at the inception but has ceased to be so. The second part of the definition is inclusive in nature and it expressly covers 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. This part covers a case where a person had entered into occupation legally under valid authority, but who continues in occupation after the authority under which he was put in occupation has expired or has been determined. The words 'whether by way of lease or any other mode of transfer' in this part of the definition are very wide in amplitude and would, undoubtedly cover a case where a person has come into occupation of a public building under an authority granted in his favour by the licence as a licensee, which has expired or has been determined. **==> picture [226 x 6] intentionally omitted <==** 17. It is true that a licensee does not acquire any interest in the property by virtue of grant of licence in his favour in relation to any immovable property, but once the authority to occupy and use the same is granted in his fafour by way or licence, he continues to exercise that right so long the authority has not expired or has not been determined for any reason whatsoever,meaning thereby so long the period of licence has not expired or the same has not been determined on the grounds permissible under the contract or law. Occupation of licensee is permissive by virtue of the grant of licence in his favour, though he does not acquire any right in the property and the property remains in possession and control of the grantor, but by virtue of such a grant, he acquires a right to remain in occupation so long the licence is not revoked and/or he is not evicted from its occupation either in accordance with law or other wise. Main thrust of S. 2(f) of the Act is upon the expression 'occupation' with authority or without authority. If a person ## W.P.C. No. 23802/08 ## -: 6 :- without any authority occupies any public building, he would be trespassed and his case would be covered by first part of S. 2(f) and would be liable to be evicted under the provisions of the Act instead of taking recourse to ordinary law by filing a properly constituted suit which is dragged on for years together. Second part of S. 2(f) deals with cases where a person is in occupation by virtue of an authority granted in his favour irrespective of the fact whether the authority is in the form of lease or licence or in any other form. So far as case of lease of a public building is concerned, upon expiry of the period limited thereby or its determination in accordance with law, the special procedure prescribed under the Act providing speedy remedy for eviction would apply even though some interest in the immovable property is created in favour of the lessee by virtue of creation of lease in his favour. But in a case of licence, no interest in the property is created by virtue of the grant but a person acquires a right to continue his occupation by virtue of the authority granted in his favour under the licence unless the period of licence has expired or the same has been determined or licence has been revoked and/or the licensee is evicted by the grantor. If it is held that S. 2 (f) would apply only in case of lease and not in the case of licence, the position will be very incongruous as in the case of lease, though a lessee acquires interest in the property which is a higher right, but the can be evicted under the special procedure prescribed under the law providing much speedy remedy whereas in case of licence, a licensee, who does not acquire any interest in the property and has only some sort of right of occupation by virtue of the nature of grant in his favour so long as he is not evicted, can be evicted through long drawn ordinary procedure of filing a civil suit. This could not have been the intention of the Legislature. Apart from that, out of the expressions 'whether by way of lease' or 'any other mode of transfer' the expression 'any other mode of transfer' is very wide and would not necessarily mean only that mode of transfer whereby a right has been created in immovable property. The expression 'transfer under the Transfer of Property Act connotes creation of some interest in immovable property. But under S.2(f) of the Act, such a restricted meaning would defeat the purpose of legislation which is impermissible. The expression “any other mode of transfer” would definitely bring within its sweep the case of a licensee where right of the grantor to occupy and continue to occupy immovable property is transferred though under law, the property remains in possession and control of the grantor. In view of the foregoing discussions, we hold that the expression 'unauthorised occupation' within the meaning of S. 2(f) of the Act would embrace within its ambit the case of licensee as well after expiry of the period of licence or upon its determination for any reason whatsoever, as such the estate officer was quite justified in initiating proceeding under the Act and passing eviction order therein.” W.P.C. No. 23802/08 -: 7 :- Therefore, the reliance by the Panchayat on the above decision is apposite in this case. Once it is held that the petitioner's continued occupation of the shop room on 31-3-2007 is unauthorised, then the petitioner cannot validly challenge Exts.P 6 and P9 orders since the Panchayat is perfectly entitled to take action under the above said Act for eviction of the petitioner from the unauthorised occupation of the shop building, as held by the Supreme Court in the above decision. 8. Apart from that, I am not inclined to exercise my discretionary jurisdiction in favour of the petitioner, since the Panchayat submits that the petitioner is the owner of a shopping complex wherein there are 68 shop rooms. Of course, the petitioner would contend that, that shopping complex is not his alone, and it belongs to the family consisting of his brothers and sisters also and he is managing the same only as a power of attorney holder. Even assuming the same to be true, since the shopping complex is under his control by virtue of the power of attorney held by him, nothing prevents the petitioner from occupying one of the rooms therein for the purpose of his business. For the above reasons, I do not find any merit in the challenge against Exts.P 6 and P9. Accordingly, the writ petition is dismissed. However, the Panchayat shall grant the petitioner one month's time to vacate the building in question, pursuant to the impugned orders. Sd/- S. Siri Jagan, Judge. Tds/