NATARAJAN & OTHERS v. SAJI.K.B & THE SECRETARY, NALLEPPILLY GRAMA PANCHAYATH

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **FRIDAY, THE 11TH DAY OF OCTOBER 2013/19TH ASWINA, 1935** **RSA.No. 613 of 2013 (F)** **-----------------------** **AGAINST THE JUDGMENT IN AS 414/2009 of II ADDL.DISTRICT COURT, PALAKKAD DATED 26-02-2013** **AGAINST THE JUDGMENT IN OS 237/2008 of MUNSIFF COURT, CHITTUR DATED 08-10-2009** **APPELLANT(S)/APPELLANTS 1 TO 3, 5 & 6 AND LRS OF THE APPELLANT NO.4/PLAINTIFFS NO.2 TO 4, 6 AND 7 AND LRS OF PLAINTIFF NO.5.:** **---------------------------------------------------------------------------------------------------** **1. NATARAJAN,AGED 52 YEARS S/O.LATE JANAKI, MANIKKATH KALAM, KAMBILICHUNGAM NALLEPPILLY P.O., THEKKEDESOM VILLAGE, CHITTUR TALUK PALAKKAD DISTRICT.** **2. PREMA, AGED 58 YEARS D/O.LATE JANAKI, MANIKKATH KALAM, KAMBILICHUNGAM NALLEPPILLY P.O., THEKKEDESOM VILLAGE, CHITTUR TALUK PALAKKAD DISTRICT.** **3. RUGMANI, AGED 56 YEARS D/O.LATE JANAKI, MANIKKATH KALAM, KAMBILICHUNGAM NALLEPPILLY P.O., THEKKEDESOM VILLAGE, CHITTUR TALUK PALAKKAD DISTRICT.** **4. SAROJA DEVI, AGED 54 YEARS D/O.LATE JANAKI, MANIKKATH KALAM, KAMBILICHUNGAM NALLEPPILLY P.O., THEKKEDESOM VILLAGE, CHITTUR TALUK PALAKKAD DISTRICT.** **5. VIJAYAKUMARI, AGED 53 YEARS D/O.LATE JANAKI, MANIKKATH KALAM, KAMBILICHUNGAM NALLEPPILLY P.O., THEKKEDESOM VILLAGE, CHITTUR TALUK PALAKKAD DISTRICT.** **6. PREMA, AGED 51 YEARS W/O.LATE UNNIKRISHNAN, MANIKKATH KALAM, KAMBILICHUNGAM NALLEPPILLY P.O., THEKKEDESOM VILLAGE, CHITTUR TALUK PALAKKAD DISTRICT.** **...2** **-2-** ## **RSA.No. 613 of 2013 (F)** **7. SURYAKRISHNAN, AGED 20 YEARS S/O.LATE UNNIKRISHNAN, MANIKKATH KALAM, KAMBILICHUNGAM NALLEPPILLY P.O., THEKKEDESOM VILLAGE, CHITTUR TALUK PALAKKAD DISTRICT.** ## **8. RAMAKRISHNAN, AGED 20 YEARS** **S/O.LATE UNNIKRISHNAN, MANIKKATH KALAM, KAMBILICHUNGAM NALLEPPILLY P.O., THEKKEDESOM VILLAGE, CHITTUR TALUK PALAKKAD DISTRICT.** **BY ADVS.SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** **--------------------------------------------------------------------------** ## **1. SAJI.K.B, AGED 42 YEARS** - **S/O.BALAKRISHNAN, VATTAMPOTTA HOUSE, KAMBILICHUNGAM NALLEPPILLY P.O., THEKKEDESOM VILLAGE, CHITTUR TALUK PALAKKAD DISTRICT. 678 553** ## **2. THE SECRETARY** **NALLEPPILLY GRAMA PANCHAYAT, NALLEPPILLY P.O. CHITTUR TALUK, PALAKKAD DISTRICT. 678 553** **R1 BY ADVS. SRI.M.AJAY** **SRI.K.R.RAJKUMAR SRI.V.P.PRASAD R2 BY ADVS. SRI.H.BADARUDDIN SMT.B.SHAMEERA** **APPELLANTS 6 TO 8 WHO ARE ALREADY INCLUDED IN THE PARTY ARRAY ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED APPELLANT NO.4 IN THE LOWER APPELLATE COURT AS PER ORDER DATED 10.9.2013 IN I.A. NO.1477/2013** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **JJJ** ## **N.K. BALAKRISHNAN, J.** ------------------------------------------ R.S.A. No. 613 of 2013 -----------------------------------------Dated this the 11[th] day of October, 2013 ## **J U D G M E N T** The legal representatives of the original 1[st] plaintiff in a suit for injunction are the appellants. The suit was filed for injunction restraining the respondents, including the Secretary of Panchayath, from dispossessing the plaintiffs. The 1[st] plaintiff and her son- the 2[nd] plaintiff died pending suit and their legal representatives were brought on record as supplemental plaintiffs 3 to 7. 2. It was contended that the plaint schedule property is a petty shop bearing no.2/352 constructed in the Panchayath land. The 1[st] plaintiff's husband-Velayudhan was stated to be an Ex-service man and he was handicapped. According to the plaintiffs, the plaint schedule shop was allotted by the Panchayath to Velayudhan for **R.S.A. No. 613/2013** **-2-** running a petty shop and he was running that shop. It is stated that as per Ext.A1 order dated 11.2.1999, the Deputy Director of Panchayath accorded sanction for granting lease of the shop building to the 1[st] plaintiff -Janaki (wife of Velayudhan) and since then she was in possession of the said shop, running it as a Milma stall. It was stated that the fee payable to the Panchayath was regularly paid. The 1[st] plaintiff alleged that at the instance of the 1[st] defendant, the 2[nd] defendant – Panchayath initiated action to evict her. Hence, the suit was filed stating that the defendants were trying to dispossess the plaintiff. 3. The 1[st] defendant, who is a private party, filed written statement contending that the plaintiffs were doing business in the petty shop unauthorisedly encroaching into the Panchayath property and that the plaintiffs have no right to construct a petty shop in the property of the Panchayath. ## **R.S.A. No. 613/2013** **-3-** The 1[st] defendant's father is the owner in possession of the adjacent property. It was further contended that the petty shop and the structures were constructed by the plaintiff utilizing the major front portion of the property of the 1[st] defendant's father and thereby the plaintiffs obstructed the free ingress and egress to the property of the 1[st] defendant's father. It was further contended that the action taken by the Panchayath is in conformity with the Rules and as such a suit without a notice under section 249 of Panchayath Raj Act is unsustainable. 4. The 2[nd] defendant – Secretary of the Panchayath filed written statement contending that the suit is not maintainable for want of notice under section 249 of Panchayath Raj Act. It was further stated that the plaintiffs did not reveal the right claimed by them over the suit property. The 1[st] plaintiff was permitted to conduct business ## **R.S.A. No. 613/2013** **-4-** in the property owned by the Panchayath under certain terms and conditions but the 1[st] plaintiff violated the terms and conditions. There were complaints against the plaintiff's unauthorised construction. 5. The 2[nd] defendant - Panchayath contended that notice was issued as per law and that the plaintiffs can very well submit their case before the Panchayath on receipt of the notice and that the suit is not maintainable. Thus the 2[nd] defendant prayed for dismissal of the suit. 6. Exhibits A1 to A13 were marked on the side of the plaintiffs and Exhibits B1 to B2(c) were marked on the side of the defendants. 7. The trial court found that the suit is bad for non issuance of notice required under section 249 of Panchayath Raj Act. Even though it was contended by the appellants that the plaintiff's husband was granted lease of the building that was found against by the trial court. It was found that ## **R.S.A. No. 613/2013** **-5-** under Ext.A1 the 1[st] plaintiff was granted only a license and not a lease. Though in Ext.A1 order the word used is 'lease' it was found by the trial court that a reading of Ext.A1 would make it clear that Panchayath had granted only a license to occupy the building and to run the business and no lease was granted. Since the Panchayath had already initiated action for eviction, the suit was dismissed. The lower appellate court concurred with the view taken by the trial court and dismissed the appeal. 8. Following are the questions of law which are seen formulated in this Regular Second Appeal filed by the appellants, who are the legal heirs of deceased 1[st] plaintiff: - i. Is the suit bad for want of statutory notice under section 249 of Panchayath Raj Act, 1994? - ii. Whether the entrustment of the plaint schedule property and the petty shop situated therein is a lease or license? If it is a lease, can the appellants be evicted ## **R.S.A. No. 613/2013** **-6-** without resorting to due process of law? - iii. Have the courts below committed legal perversity in the analysis of the evidence available in the case and consequently coming to proper conclusions? - iv. Are the judgments and decrees passed by the courts below legally sustainable? 9. The learned counsel for the respondents would submit that the points formulated by the appellant's counsel are not substantial questions of law. The question whether the 1[st] plaintiff was a lessee or licensee is to be decided based on the document evidencing the transaction. Admittedly, the original document as per which her husband Velayudhan was stated to have been granted lease or the document given to the 1[st] plaintiff was not produced by the appellants. What has been produced by them is Ext.A1 – the order passed by the Deputy Director of Panchayath, which only shows that the action of the Panchayath in granting 'lease' is approved. The word used therein is ## **R.S.A. No. 613/2013** **-7-** 'lease'. Based on that, the appellants contend that they were granted lease of the land or building. It would be a futile exercise to rely upon Ext.A1 to contend that Velayudhan or the deceased 1[st] plaintiff was granted lease of the land or building. It is for the Panchayath to grant lease or license. That document given by the Panchayath was not produced by the appellants. The reason is quite obvious. Admittedly, the land whereupon the shed was constructed is a Panchayath Puramboke land, which stood vested in the Panchayath. Even in Ext.A1 it was specifically mentioned that the Panchayath had liberty to take action as per Rule 6 (1)(b) of Kerala Panchayath (Acquisition and Transfer of Immovable Properties) Rules and Section 284(2)(i) of Kerala Panchayath Act. There is nothing on record to show that the 1[st] plaintiff was granted lease of the building or land. 10. The learned counsel for the respondents would submit that the relief claimed in the plaint is to the effect ## **R.S.A. No. 613/2013** **-8-** that the appellant shall not be dispossessed at all, as if the deceased 1[st] appellant was granted a lease in perpetuity. Admittedly, that is not the case of the appellants. There is no case for the appellants that the Panchayath had no authority to initiate action against the appellants for evicting them under due process of law but the relief claimed by the plaintiffs is otherwise. That itself is sufficient to non suit the plaintiff. 11. Section 249 of the Panchayath Raj Act says that no suit, or other civil proceedings against a Panchayath or against the President, the Vice-President or any other member, or employee thereof or against any other person acting under the direction of the Panchayat or any member or employee thereof for anything done or purporting to be done under the Act in its or his official capacity shall be instituted until the expiration of one month after the notice in writing stating the cause of action, the name and place of ## **R.S.A. No. 613/2013** **-9-** abode of the intending plaintiff and the nature of the relief which he claims. Admittedly no such notice was issued. The plaintiffs wanted to contend that there was an attempt to forcibly dispossess the deceased first plaintiff. That is found to be a travesty of truth. Even going by the plaint averments it is clear that the Panchayath was initiating action under the provisions of the Panchayath Raj Act or the enabling Rules to evict the deceased first plaintiff from the shed in question. On receipt of the notice, if it was objectionable, it was for the plaintiffs to present their case before the authorities concerned and resist the proceedings for eviction. But here the plaintiff has made a mischievous plea, evidently with the dubious design, seeking a relief of perpetual injunction against the Panchayath as if the Panchayath was forcibly dispossessing her. 12. If the case of the plaintiffs was that they should not be forcibly dispossessed or that they should not be ## **R.S.A. No. 613/2013** **-10-** dispossessed otherwise than under a due process of law then, at least, it could have been contended by the plaintiff that the suit is maintainable. But the relief sought for is totally different; that the plaintiff shall not be dispossessed at all, to mean; not even by due process of law. That prayer is actually opposed to the provisions of the Specific Relief Act. On that ground itself, the suit is liable to be dismissed as has been rightly held by the courts below. 13. It is not a suit for declaration of title and consequential injunction but a bare injunction against dispossession in any manner. Such a relief cannot be granted at all. It is vehemently argued by the learned counsel for the appellants that the deceased first plaintiff was a lessee and so her legal heirs are entitled to inherit the leasehold right and hence they cannot be evicted otherwise than by due process of law. That document ## **R.S.A. No. 613/2013** **-11-** evidencing the grant was not produced at all. Even otherwise, the Panchayath was initiating action to evict the appellants in accordance with law. The plaint is misconceived and the argument is misplaced. 14. The contention that the present appellants are entitled to leasehold right stood unsubstantiated in view of the fact that no document was produced to show that the deceased first plaintiff was granted lease . Except the word 'lease', crept in Ext.A1 order issued by the Deputy Director of Panchayath, there is nothing on record to show that any lease was granted to the deceased first plaintiff or even to her deceased husband -Velayudhan. The document evidencing the grant was not produced at all. No application was also filed by the plaintiffs to call for the records from the Panchayath to prove those aspects. **-12-** ## **R.S.A. No. 613/2013** 15. Ext.A1 was of the year 1999. The license was continued . Exts. A11 and A12 are stated to be the licenses issued by the Panchayath. The learned counsel for the appellants contend that those licenses are for the conduct of the business and not the licenses pertaining to the shed in question. Since the burden is on the plaintiffs to prove the case set up by them, they cannot contend that the Panchayath should have produced documents **.** If, for any reason the plaintiffs were sure that the documents were available with the Panchayath, which would substantiate their case of lease, then there was no difficulty for them to seek production of those documents. There is absolutely no evidence on record to prove that the present appellants or their predecessors were granted lease of the building or the land. ## **R.S.A. No. 613/2013** **-13-** 16. There is also evidence to show that the first defendant's father, who was holding the land just behind the shed in question, had filed complaint to the Panchayath stating that the appellants were causing obstruction to the peaceful enjoyment of the property by the first defendant's father and it was thereafter the Panchayat initiated action against the deceased 1[st] plaintiff. It is not necessary to delve deep into those aspects since the courts below have concurrently found that there is nothing on record to show that the plaintiffs were granted lease of the building. Not only that, the frame of the suit is such that no action should be taken against them in accordance with law. No such decree can be granted. Since the Panchayath had initiated action it is for the appellants to approach the Panchayth authorities and if aggrieved, to file appeal before the authority concerned and then to move the Tribunal constituted for that purpose, if so advised. ## **R.S.A. No. 613/2013** **-14-** 17. Even if it is accepted that the deceased first plaintiff was a lessee , at the maximum, the lessee or legal heirs can only contend that they are entitled to get notice under Sec. 106 of the T.P.Act and not anything more so as to resist the action for eviction that may be initiated by the Panchayat. But a blanket injunction, which is sought for by the plaintiffs, cannot be granted at all. True, that the decree could have been modified to that effect, had the plaintiff approached the court with clean hands stating the true facts. But on going through the reliefs claimed in the plaint it would appear that they did not approach the Court with clean hands. 18. The decision in **Mammadhan Kutty v. Pallivasal Grama Panchayath - 2004 (1) KLT 751** has no application to the facts of this case since it is not a case where the third parties tried to encroach into the property ## **R.S.A. No. 613/2013** **-15-** of the lessee or licensee. Here the Panchayath was initiating action under the Panchayath Raj Act and the Rules concerned . That cannot be restrained by a decree of injunction. The action taken by the Panchayath is not ultra vires of the provisions of the Panchayath Raj Act or Kerala Panchayat Raj (Removal of Encroachment and Imposition & Recovery of Penalty or Unauthorised Occupation), Rules 1996 or any other Rules framed for that purpose. I find no merit in this Second Appeal. The questions of law formulated by the appellants are answered against the appellants. Subject to what is stated in paragraph 16 of this judgment, this Regular Second Appeal is dismissed. Sd/- N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jjj/ani