Merchant Navy Club v. Kerala Maritime Board and Others

``` 2025:KER:26747 ``` **==> picture [58 x 57] intentionally omitted <==** WP(C) NO. 12826 of 2025 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` FRIDAY, THE 28[TH] DAY OF MARCH 2025 / 7TH CHAITHRA, 1947 ``` ``` WP(C) NO. 12826 OF 2025 ``` ## **`PETITIONER:`** ``` MERCHANT NAVY CLUB REPRESENTED BY ITS VICE PRESINDENT- CAPT EP RADHAKRISHNAN AGED 58 YEARS CALICUT LIGHT HOUSE, VELLAYILBEACH ROAD KOZHIKODE, PIN - 673032 BY ADVS. V.J.MATHEW (SR.) ADARSH MATHEW ANIRUDH G. KAMATH AGUSTHO NORBERT ANNA B. MEGHA MADHAVAN VIPIN P.VARGHESE ``` ## **`RESPONDENTS:`** ``` 1KERALA MARITIME BOARD REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER TC XXII/1666 (4&5), 1ST FLOOR MULAMOOTTIL BUILDING PAIPINMOODU SASTHAMANGALAM THIRUVANANTHAPURAM, PIN – 695010. 2PORT OFFICER PORT OF KOZHIKODE, BEYPORE P.O., PIN - 673015 3STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY FISHERIES & PORTS DEPARTMENT. GOVT OF KERALA SECRETARIAT, THIRUVANTHAPURAM, KERALA, PIN – 695001 SC SRI.K.P.SUDHEER GP SRI.B.S.SYAMANTHAK ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2025:KER:26747 ``` WP(C) NO. 12826 of 2025 2 **==> picture [58 x 57] intentionally omitted <==** ## Dated this the 28[th] day of March, 2025 ## **JUDGMENT** The petitioner is a Society registered under the Societies Registration Act, 1860. In 1996, three sheds were given on lease to the petitioner as per Ext. P6 lease deed. The ownership of the shed vests with the second respondent and the property vests with the first respondent. The petitioner renovated the sheds in 1997. By Ext. P12 lease deed, the lease was renewed in 2015. In 2016, the sheds were again renovated using the petitioner’s funds. Pursuant to Ext. P18 letter issued by the second respondent, the petitioner remitted Rs. 75,933/- towards revised license fees. While so, the petitioner received Ext. P23 order from the Kozhikode Corporation to demolish the renovated building. Since the building is owned by the second respondent, he submitted an application for regularisation of the ``` 2025:KER:26747 ``` **==> picture [58 x 57] intentionally omitted <==** WP(C) NO. 12826 of 2025 3 construction. In the meantime, on 31.03.2023, the lease was again renewed by Ext. P30 lease deed. To the petitioner’s shock, the CEO of the first respondent has issued Ext. P32 notice to the second respondent, directing him to issue an eviction notice to the petitioner. The allegations raised in Ext. P32 are without any basis. The second respondent has clarified that the land and building were leased to the petitioner, and the building was renovated after getting approval from the Port Department, Government of Kerala. On 15.01.2025, the petitioner was served with Ext. P40 show cause notice by the first respondent under Section 4 of the Kerala Public Buildings (Eviction of Unauthorised Occupants) Act (‘Act’, for short), 1968, directing the petitioner to show cause why they should not be evicted from the premises. The petitioner had submitted Ext. P41 reply, inter alia, contending that the Estate Officer is incompetent to initiate the proceeding. While so, without considering ``` 2025:KER:26747 ``` **==> picture [58 x 57] intentionally omitted <==** WP(C) NO. 12826 of 2025 4 the contentions in Ext. P41 reply or conducting any hearing, the first respondent has passed Ext. P42 order. Ext. P42 order is illegal and arbitrary. Hence, the writ petition. 2. Heard; the learned Senior Counsel for the petitioner, the learned Standing Counsel appearing for the respondents 1 and 2 and the learned Government Pleader. 3. The learned Senior Counsel for the petitioner reiterated the contentions raised in the writ petition. He also argued that the Estate Officer has no authority to issue a show cause notice invoking the provisions of the Act because the property belongs to the Government of Kerala. Moreover, as per the various enactments, it is obligatory on the part of the state to provide facilities to seafarers. The entire procedure leading to Ext. P42 is tainted with malafides. Therefore, Ext. P42 may be quashed. ``` 2025:KER:26747 ``` **==> picture [58 x 57] intentionally omitted <==** WP(C) NO. 12826 of 2025 5 4. The learned Standing Counsel for the respondents 1 and 2 refuted the submissions of the learned Senior Counsel for the petitioner. He argued that the writ petition is not entertainable in view of the alternative statutory remedy provided under Section 10 of the Act, which provides for an appeal against Ext. P42 order. Hence, the writ petition may be dismissed on the sole ground. He also argued that the Estate Officer has the authority to issue Exts. P38 and P40 show cause notices and pass the eviction order because the petitioner has consciously executed Exts. P6, P12, P17 and P30 license deeds with the second respondent. Therefore, the petitioner is estopped from contending that the second respondent has no authority to pass Ext. P42 order, particularly in view of the explicit covenants in Ext. P30 license deed. Hence, the writ petition may be dismissed. 5. The pleadings and the materials on record, ``` 2025:KER:26747 ``` **==> picture [58 x 57] intentionally omitted <==** WP(C) NO. 12826 of 2025 6 unambiguously substantiate that the petitioner and the second respondent have entered into Ext. P30 license deed on 31.03.2023. 6. It is alleging violation of the covenants in Ext. P30, the Estate Officer, who as per the materials on record is the second respondent, has issued Ext. P40 show cause notice invoking the provisions of the Act. The second respondent has alleged that the petitioner had carried out unauthorised construction in the premises which tantamounts to the unauthorised occupation. 7. The petitioner has submitted Ext. P41 reply to Ext. P40 show cause notice, inter alia, contending that the Estate Officer is incompetent to initiate the proceedings under the Act. 8. Notwithstanding the objections raised by the petitioner in Ext. P41 reply, the second respondent has passed Ext. P42 eviction order, directing the petitioner to vacate the premises. ``` 2025:KER:26747 ``` WP(C) NO. 12826 of 2025 7 **==> picture [58 x 57] intentionally omitted <==** ## 9. In the above context, it is apposite to refer to Section 5 of the Act, which reads as follows: “5. Eviction of unauthorised occupants.—(1) If, after considering the cause, if any, shown by any person in pursuance of a notice under section 4 and any evidence produced by such person in support of the same and after giving him a reasonable opportunity of being heard, the estate officer is satisfied that the public building is in unauthorised occupation, the estate officer may, on a date to be fixed for the purpose, make an order of eviction, for reasons to be recorded therein, directing that the public building shall be vacated by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be published by affixing it on the outer door or some other conspicuous part of the public building. (2) If any person refuses or fails to comply with the order of eviction within thirty days of the date of its publication under sub-section (1), the estate officer or any other officer duly authorised by him in this behalf may evict that person from, and take possession of, the public building and may, for that purpose, use such force as may be necessary.” ## 10. A reading of Section 5(1) of the Act undoubtedly mandates that, if any person shows cause to a notice issued under Section 4 of the Act, the Estate ``` 2025:KER:26747 ``` **==> picture [58 x 57] intentionally omitted <==** WP(C) NO. 12826 of 2025 8 Officer is bound to afford the alleged unauthorised occupant a reasonable opportunity of being heard; and only after the Estate Officer is satisfied that the public building is an unauthorised occupation, an order of eviction can be passed. 11. On a careful reading of Ext. P42 order, I find that the Estate Officer has not adverted to the contentions raised by the petitioner in Ext. P41 reply and that the petitioner was not afforded an opportunity of being heard before Ext. P42 order was passed. 12. It well settled judicial review under Article 226 of the Constitution of India is directed, not against the decision, but the decision-making process [Read the decision of the Hon’ble Supreme Court in **Sarvepalli Ramaiah v. District Collector, Chittor** [(2019) 4 SCC 500]). 13. On an overall consideration of the facts and materials on record, especially that the second ``` 2025:KER:26747 ``` **==> picture [58 x 57] intentionally omitted <==** WP(C) NO. 12826 of 2025 9 respondent has not adverted to any of the contentions raised and the petitioner was not afforded an opportunity of being heard, without expressing any thing on the merits of the contentions raised by the petitioner before the second respondent, I am satisfied that Ext. P42 order is liable to be quashed, and the second respondent be directed to re-consider Ext. P40 show cause notice, after adverting to the contentions raised by the petitioner and affording the petitioner an opportunity of being heard as contemplated under the provisions of the Act. In the afore said circumstances, I allow the writ petition in the following manner: i. Ext. P42 order is quashed. ii. The second respondent is at liberty to issue a fresh hearing notice to the petitioner, on which date the petitioner shall be afforded an opportunity of being heard. It is clarified ``` 2025:KER:26747 ``` **==> picture [58 x 57] intentionally omitted <==** WP(C) NO. 12826 of 2025 10 that, the second respondent shall finalise the proceedings after adverting to the petitioner’s contentions in Ext. P41 reply, and pass a reasoned order, in accordance with the law. iii. Until such time orders are passed in Ext. P40 show cause, the parties are directed to maintain the status quo in respect of the premises mentioned in the show cause notice. The writ petition is ordered accordingly. mtk/26.03.25 Sd/- **C.S.DIAS, JUDGE** ``` 2025:KER:26747 ``` WP(C) NO. 12826 of 2025 11 **==> picture [58 x 57] intentionally omitted <==** ## **`APPENDIX OF WP(C) 12826/2025`** ## **`PETITIONER EXHIBITS`** - **`Exhibit P1`** ``` THE TRUE COPY OF THE CERTIFICATE OF REGISTRATION DATED 14.03.2019 ISSUED BY THE OFFICE OF THE DISTRICT REGISTRAR OF SOCIETIES. ``` - **`Exhibit P2 THE TRUE COPY OF THE WALK IN INTERVIEW PAMPHLET FROM THE YEAR 2017 EVIDENCING THE RECRUITMENT DRIVES HOSTED BY THE PETITIONER CLUB`** - **`Exhibit P3 THE TRUE COPY OF MEMORANDUM OF ASSOCIATION OF PETITIONER`** - **`Exhibit P4 THE TRUE COPY OF RULES AND REGULATIONS OF PETITIONER`** - **`Exhibit P5 THE TRUE COPY OF LIST OF MEMBERS`** - **`Exhibit P6 THE TRUE COPY OF THE LEASE DEED DATED 15TH MARCH, 1996 EXECUTED BETWEEN THE PORT OFFICER, KOZHIKODE, AND THE PETITIONER`** - **`Exhibit P7 THE TRUE COPY OF THE INVITATION CARD OF THE INAUGURATION OF THE MERCHANT NAVY CLUB`** - **`Exhibit P8 THE TRUE COPY OF THE ARREAR DEMAND NOTICE DATED 06.05.2021 ISSUED BY THE CORPORATION OF KOZHIKODE`** - **`Exhibit P9 THE TRUE COPY OF THE LETTER DATED 01.09.2021 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER`** - **`Exhibit P10 THE TRUE COPY OF THE PREMISES METER CARD ISSUED BY KSEB IN THE NAME OF PORT OFFICER, KOZHIKODE`** ``` 2025:KER:26747 ``` **==> picture [58 x 57] intentionally omitted <==** ## WP(C) NO. 12826 of 2025 12 - **`Exhibit P11 THE TRUE COPY OF THE PHOTOGRAPHS EVIDENCING THE RENOVATION CARRIED OUT BY THE PETITIONER OF THE SHED`** - **`Exhibit P12 THE TRUE COPY OF THE LEASE DEED DATED 05.02.2015 BETWEEN PETITIONER AND 2ND RESPONDENT`** - **`Exhibit P13 THE TRUE COPY OF THE LETTER DATED 12.08.2015 ISSUED BY DIRECTOR OF PORTS TO 2ND RESPONDENT`** - **`Exhibit P14 THE TRUE COPY OF THE LETTER DATED 09.05.2016 SEND BY THE PETITIONER TO DIRECTOR OF PORTS, THEN PORT DIRECTORATE ALONG WITH THE SITE AND BUILDING PLAN OF THE SEAMEN WELFARE CENTRE / MERCHANT NAVY CLUB`** - **`Exhibit P15 THE TRUE COPY OF THE LETTER NO. D22633/2016/DP DATED 16.07.2016 ISSUED BY THE DIRECTOR OF PORTS TO THE 2ND RESPONDENT`** - **`Exhibit P16 THE TRUE COPY OF THE LETTER DATED 24.11.2016 OF THE PORT OFFICER, KOZHIKODE TO PETITIONER`** - **`Exhibit P17 THE TRUE COPY OF THE RENEWED LEASE DEED DATED 01.12.2016 BETWEEN PETITIONER AND PORT OFFICER, KOZHIKODE`** - **`Exhibit P18 THE TRUE COPY OF THE LETTER DATED 27/12/2017 ISSUED BY PORT OFFICER, KOZHIKODE TO THE PETITIONER`** ``` Exhibit P19THE TRUE COPY OF THE NEWSPAPER ARTICLE DATED 20.07.2015 PUBLISHED IN MATHRUBHUMI DAILY ``` ``` Exhibit P20THE TRUE COPY OF THE LETTER DATED 26.12.2016 ISSUED BY DC KIZHAKEMURI FOUNDATION TO THE PETITIONER ``` ``` 2025:KER:26747 ``` **==> picture [58 x 57] intentionally omitted <==** ## WP(C) NO. 12826 of 2025 13 - **`Exhibit P21 THE TRUE COPY OF THE LETTER DATED 26.08.2017 ISSUED BY DISTRICT TOURISM PROMOTION COUNCIL TO THE PETITIONER`** - **`Exhibit P22 THE TRUE COPY OF THE NEWS WHICH WAS PUBLISHED IN VARIOUS NEWSPAPERS`** - **`Exhibit P23 THE TRUE COPY OF THE ORDER NO. TP9/104277/18 DATED 06.08.2021 OF THE SECRETARY, CORPORATION OF KOZHIKODE`** - **`Exhibit P24 THE TRUE COPY OF THE LETTER DATED 23/09/2021 ISSUED BY THE PETITIONER TO THE SECRETARY, MUNICIPAL CORPORATION, KOZHIKODE`** - **`Exhibit P25 THE TRUE COPY OF THE LETTER NO. A62044/14 DATED 27.10.2021 ISSUED BY THE PORT OFFICER TO MUNICIPAL CORPORATION, KOZHIKODE`** - **`Exhibit P26 THE TRUE COPY OF THE LETTER DATED 10/06/2022 ISSUED BY PORT OFFICER TO THE PETITIONER`** - **`Exhibit P27 THE TRUE COPY OF THE LETTER DATED 28.12.2022 ISSUED BY THE PETITIONER TO PORT OFFICER`** - **`Exhibit P28 THE TRUE COPY OF THE REMINDER NOTICE DATED 24/06/2023 ISSUED BY THE OFFICE OF MUNICIPAL CORPORATION, KOZHIKODE TO PETITIONER`** - **`Exhibit P29 THE TRUE COPY OF THE LETTER DATED 14/11/2023 ISSUED BY THE PORT OFFICER TO SECRETARY, KOZHIKODE CORPORATION`** - **`Exhibit P30 THE TRUE COPY OF THE LEASE DEED DATED 31.03.2023 EXECUTED BETWEEN PORT OFFICER, KOZHIKODE AND PETITIONER`** ``` Exhibit P31THE TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT ISSUED BY THE 1ST RESPONDENT TO ``` ``` 2025:KER:26747 ``` **==> picture [58 x 57] intentionally omitted <==** ## WP(C) NO. 12826 of 2025 14 ## **`THE PETITIONER`** - **`Exhibit P32 THE TRUE COPY OF THE LETTER NO. C325/2016 DATED 15/11/2023 ISSUED BY THE CHIEF EXECUTIVE OFFICER (CEO) OF THE KERALA MARITIME BOARD TO THE PORT OFFICER`** - **`Exhibit P33 THE TRUE COPY OF THE LETTER NO. A62044/2014 DATED 24/11/2023 ISSUED BY THE PORT OFFICER, KOZHIKODE TO THE CHIEF EXECUTIVE OFFICER (CEO) OF THE KERALA MARITIME BOARD`** - **`Exhibit P34 TRUE COPY OF THE REPRESENTATION DATED 25/11/2023 PREFERRED BY PETITIONER BEFORE MINISTER OF PORTS, KERALA ALONG WITH ACKNOWLEDGMENT RECEIPT`** - **`Exhibit P35 THE TRUE COPY OF THE REPLY LETTER DATED 28/11/2024 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT`** - **`Exhibit P36 THE TRUE COPY OF THE LETTER DATED 23/11/2024 ISSUED BY THE 1ST RESPONDENT TO 2ND RESPONDENT`** - **`Exhibit P37 THE TRUE COPY OF THE LETTER DATED 25/11/2024 ISSUED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT`** - **`Exhibit P38 THE TRUE COPY OF THE DRAFT OF SHOW CAUSE ISSUED BY THE 1ST RESPONDENT TO PETITIONER`** - **`Exhibit P39 THE TRUE COPY OF THE DRAFT OF EVICTION NOTICE ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER`** - **`Exhibit P40 THE TRUE COPY OF THE SHOW CAUSE DATED 15/01/2025 ISSUED BY 1ST RESPONDENT TO THE PETITIONER`** ``` Exhibit P41THE TRUE COPY OF REPLY TO SHOW CAUSE NOTICE DATED 27/01/2025 ISSUED BY ``` ``` 2025:KER:26747 ``` WP(C) NO. 12826 of 2025 15 **==> picture [58 x 57] intentionally omitted <==** ``` PETITIONER TO THE 1ST RESPONDENT ``` ``` Exhibit P42THE TRUE COPY OF THE EVICTION NOTICE ISSUED BY THE 1ST RESPONDENT Exhibit P43THE TRUE COPY OF THE BOARD RESOLUTION OF THE PETITIONER DATED 23/03/2025 ```