Malabar Chamber of Commerce v State of Kerala & Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ``` WEDNESDAY, THE 14[TH] DAY OF JUNE 2023 / 24TH JYAISHTA, 1945 ``` ## **`WP(C) NO. 20463 OF 2012`** ## **`PETITIONER:`** ``` THE MALABAR CHAMBER OF COMMERCE (INCORPORATED AS PER CERTIFICATE OF INCORPORATION NO.5 OF 1930-31 UNDER THE INDIAN COMPANIES ACT, 1931) CHEROOTY ROAD, KOZHIKODE, REPRESENTED BY ITS HONORARY SECRETARY, ``` ``` BY ADVS. SRINATH GIRISH V.NAMITHA ``` ## **`RESPONDENTS:`** ``` 1THE STATE OF KERALA REPRESENTED BY THE SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2HOSPITAL DEVELOPMENT COMMITTEE, I.M.C.H., KOZHIKODE (MEDICAL COLLEGE), (INSTITUTE OF MATERNAL AND CHILD HEALTH), KOZHIKODE, REPRESENTED BY ITS SECRETARY, THE SUPERINTENDENT, I.M.C.H., KOZHIKODE-673011. 3THE SUPERINTENDENT I.M.C.H. MEDICAL COLLEGE, KOZHIKODE-673011. BY ADV. SRI.JUSTIN JACOB, SR.GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 20463 OF 2012 -2- ``` ## **`JUDGMENT`** Vide Ext.P1 dated 09.04.1979 petitioner was inducted as a licensee in the premises owned by the Medical College for constructing a comfort station including shelter at the instance of the Corporation of Calicut and on 10.08.2007 Superintendent I.M.C.H. Medical College, Kozhikode sent a notice to vacate the premises. 2. Petitioner preferred a suit as O.S.No.405 of 2007 before the Munsiff Court, Kozhikode Ext.P6. Hospital Development Committee vide Ext.P7 filed a written statement and raised various objections qua maintainability and contentions on merit and thereafter vide additional statement, stated that the notice Ext.P5 dated 10.08.2007 was withdrawn. In this view of the matter, the suit No.405 of 2007 vide Ext.P10 was withdrawn. Health and Family Welfare Department, Government of Kerala vide order dated 29.07.2009 ``` WP(C) NO. 20463 OF 2012 -3- ``` Ext.P11 ordered the eviction of the petitioner which was assailed in this Court in Writ Petition (C)No.22920 of 2009. This Court vide judgment dated 23.06.2010 disposed of the writ petition by quashing Ext.P11, by giving opportunity to the Government to pass fresh orders in accordance with law. It is in that background impugned order Ext.P15 has been passed after considering the reply filed by the petitioner. 3. Learned counsel appearing on behalf of the petitioner submitted that the licence was irrevocable in view of the provisions of Section 60(b) of the Indian Easement Act, 1882 for the reason that the petitioner had, during the period of licence, raised the construction. In support of the contention, relied upon the judgment of the honourable Supreme Court in **Ram Sarup Gupta (Dead) By Lrs vs Bishun Narain Inter College & Ors** (1987 AIR 1242). Even otherwise the notice by Medical College for eviction was not sustainable as there was no relationship of grantor and grantee. Government cannot ``` WP(C) NO. 20463 OF 2012 -4- ``` pass the eviction order in the manner and mode as has been done vide impugned order Ext.P15 dated 01.08.2012 as they are required to first revoke the licence and then seek possession on instituting a suit within a reasonable period for mandatory injunction alleging breach of obligation as per the provisions of Section 39 of the Specific Relief Act, 1963. 4. On the other hand, Mr.Justin Jacob submitted that opportunity of hearing in pursuance to the direction of this Court was afforded and it was found that the licence was revoked as the status of the petitioner was only of a licensee and cannot be permitted to retain the centre for the land belong to the Medical Collage. The eviction order has been passed by the Secretary for the reason that the licence was granted by the government and urged this Court for dismissal of the writ petition. 5. I have heard learned counsel for the parties and appraised the paper book. ``` WP(C) NO. 20463 OF 2012 -5- ``` 6. Law with regard to giving a permissive possession as a licensee and its revocation much less possession is no longer res integra in view of the finding rendered in **Th. Milka Singh and others v Th. Diana and others** (AIR 1964 J&K 99) and reiterated by honourable Supreme Court in **Sant Lal Jain** v. **Avtar Singh** (AIR 1985 SC 857) and approved by Supreme Court in **Bharat Bhushan Gupta v. Pratap Narain Verma** {(2022) 8 SCC 333}. Section 60(b) of the Easement Act reads as under: ## “Section 60 in The Indian Easements Act, 1882 60. License when revocable.-A license may be revoked by the grantor, unless- (a) xxxx (b) the licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution.” It provides that if a licensee, during the period of licence has raised/ or raises construction to the knowledge of the grantor – licensor, can always take the plea of ``` WP(C) NO. 20463 OF 2012 -6- ``` irrevocability of the licence. But the fact remains whether the Government in the manner or mode can pass an order of eviction without resorting to the procedure of eviction claiming the breach of obligation under the provision Section 39 of the Specific Relief Act. In the judgment **Th. Milka Singh supra** it has been held that in case the licensor within a reasonable period revokes licence, can institution of a suit for recovery of possession and mandatory injunction without paying ad valorem court fees. But in case it is filed after the expiry of reasonable period the suit for possession would lie of course subject to payment of the ad valorem court fees. However in the instant case the veracity and the jurisdiction of the Government for passing eviction order was not deliberated/pondered in the judgment of this Court. While giving opportunity to the petitioner to contest action of the state conferred by virtue of a licence Ext.P1 would not take away valuable right of taking defence of irrevocability of the licence, but that ``` WP(C) NO. 20463 OF 2012 -7- ``` could be only in a proceedings instituted before a competent court having jurisdiction. 7. Without delving further on the merit and demerit of the matter, I am of the view that the order Ext.P15 is not sustainable and is quashed accordingly. Writ petition is allowed. However this will not prevent the state to institute suit for revocation of the licence and claim the possession by resorting to the remedy in view of the observations herein, in accordance with law and claim damages as per market rent regarding alleged illegal possession of the petitioner. ``` Sd/- ``` ``` AMIT RAWAL JUDGE ``` ``` vv ``` ``` WP(C) NO. 20463 OF 2012 -8- ``` ## **`APPENDIX OF W.P.(C) NO. 20463/2012`** ## **`PETITIONER’S EXHIBITS`** |`EXHIBIT-P1`|`TRUE COPY OF THE G.O.RT-1292/79/HD`|`TRUE COPY OF THE G.O.RT-1292/79/HD`| |---|---|---| ||`DATED 09.04.1979.`|| |`EXHIBIT-P2`|`TRUE COPY OF THE LETTER `|`DATED`| ||`04.05.1979.`|| |`EXHIBIT-P3`|`TRUE COPY OF THE LETTER `|`DATED`| ||`01.06.1979`|| |`EXHIBIT-P4`|`TRUE COPY OF THE LETTER `|`DATED`| ||`04.06.1979.`|| |`EXHIBIT-P5`|`TRUE COPY OF THE NOTICE `|`DATED`| ||`10.08.2007`<br>`ISSUED`<br>`BY`|`THE`| ||`SUPERINTENDENT, I.M.C.H. TO THE`|| ||`PETITIONER.`|| |`EXHIBIT-P6`|`TRUE COPY OF THE PLAINT `|`DATED`| ||`23.08.2007 IN O.S.405/2007`|`ON THE`| ||`FILE OF THE MUNSIFF `|`COURT,`| ||`KOZHIKODE-II A`|| |`EXHIBIT-P7`|`TRUE COPY OF THE WRITTEN STATEMENT`|| ||`DATED 24.10.2007 SUBMITTED IN`|| ||`O.S.405/2007 ON THE FILE`|`OF THE`| ||`MUNSIFF COURT, KOZHIKODE-II A`|| |`EXHIBIT-P8`|`TRUE COPY OF THE LETTER `|`DATED`| ||`22.09.2007`<br>`ISSUED`<br>`BY`|`THE`| ||`SUPERINTENDENT, I.M.C.H. TO THE`|| ||`PETITIONER.`|| ``` WP(C) NO. 20463 OF 2012 -9- ``` ``` EXHIBIT-P9TRUE COPY OF THE ADDITIONAL STATEMENTDATED13.06.2008 SUBMITTED IN O.S.405/2007 BEFORE THE MUNSIFF COURT, KOZHIKODE- II A EXHIBIT-P10TRUE COPY OF THE STATEMENT DATED 17.02.2009SUBMITTEDBYTHE PETITIONER IN O.S.405/2007 BEFORE THE MUNSIFF COURT, KOZHIKODE-II A EXHIBIT-P11TRUE COPY OF THE ORDER DATED 29.07.2009(GO(MS)NO.269/2009 H&FWD) ISSUED BY THE JOINT SECRETARY HEALTH AND WELFARE DEPARTMENT, GOVERNMENT OF KERALA TO THE PETITIONER. EXHIBIT-P12TRUE COPY OF THE JUDGMENT IN WP (C) NO: 22920/2009 DATED 23.06.10. EXHIBIT-P13TRUE COPY OF THE LETTER ISSUED BY THE3RDRESPONDENTTOTHE PETITIONER DATED 15.09.10. EXHIBIT-P14TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 5.10.10. EXHIBIT-P15TRUE COPY OF THE ORDER NO. GO(MS) NO: 250/12/H&F WD DATED 1.08.12. ```