High Court of KeralaSingle Judge2016-11-29Disposed of; No costs

PALLIPARAMBAN MUHAMMAD KUTTY and others v. Kondotty Grama Panchayat

Case / Petition Number:WP(C).No. 7974 of 2014 (V); WP(C).No. 9770 of 2014 (V)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2016-11-29
Court Decision / Holding: The writ petitions are disposed of with the following directions: the Municipality is entitled to proceed with public auction of the shop rooms occupied by the petitioners; the petitioners may participate in the auction. If any petitioner is not successful, they must vacate within one week of the auction notice; temporary installations must be removed in the presence of the Municipality; security deposits will be refunded within two weeks after handing over vacant possession, after deducting amounts due. If vacant possession is not given despite notice, the Municipality may summarily eject the occupants. No costs.
Final Disposition: Disposed of; No costs

Parties to the Case

Appellants / Petitioners

Pallipparamban Muhammad Kutty
C. Muhammad Bava
P.C. Muhammad
Muhammad Ismail
Chelli. C.
Muralidasan, S/O.Krishnan
Bashaheer K.P.

Respondents

Kondotty Grama Panchayath, represented by Secretary, Kondotty Grama Panchayath, Malappuram District-673 638

Legal Representation & Advocates

Counsels for Petitioners

• V. T. Raghunath
• C. V. Rajalakshmi

Counsels for Respondents

• S. Shanavas Khan

Case Synopsis & Summary

The petitioners are occupants of shop rooms in a Panchayat building at Kondotty, Malappuram. The Panchayat issued a notification prior to construction proposing an auction of the rooms; the petitioners participated in the auction and were allotted the rooms following an auction conducted in 2003, with occupancy starting in 2004. They continued to occupy and pay rent. They challenged eviction notices alleging sub-lease; the Panchayat contends there is no sub-lease due to bye-laws and has decided to auction the premises to raise funds. Petitioners' counsel argued that Rule 7 of the Kerala Panchayat Raj (Acquisition and Disposal of Property) Rules, 2005 requires bye-laws, and Sub-rule (4) demands notices to both the original lessee and the sub-lessee before eviction; the bye-laws presented do not show a definite date of adoption, casting doubt on their validity. The court held that the prescription to frame bye-laws is not mandatory and, even if bye-laws are not formally in force, Sub-rule (4) is incorporated and permits eviction with notice to both lessee and sub-lessee. It affirmed the Municipality’s power under Section 215 of the Kerala Municipality Act, 1994 to evict and auction. The court directed that the petitioners may continue until the auction, with the petitioners allowed to participate; deposits are refundable after vacant possession; if possession is not given, summary eviction may follow. The petitions were disposed of with no costs.

Provisions of Law Cited

Kerala Panchayat Raj (Acquisition and Disposal of Property) Rules, 2005, Rule 7(1)Kerala Panchayat Raj (Acquisition and Disposal of Property) Rules, 2005, Rule 7(4)Kerala Municipality Act, 1994, Section 215

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that Rule 7(1) of the Kerala Panchayat Raj (Acquisition and Disposal of Property) Rules, 2005 contemplates bye-laws, and Ext.R1(a) bye-laws do not show a definite date of adoption; thus there are effectively no valid bye-laws to govern the disposal of property or eviction, and Sub-rule (4) requires a notice to both original lessee and sub-lessee before eviction, which was not properly issued. They argue that without proper bye-laws or notices, eviction based on sub-leasing would be unsustainable and that the auction would cause unjust enrichment to the Municipality.

Contentions of Respondents

The respondents contend that the lessees have sub-let the rooms, and the Municipality (now a Municipality under Section 215 of the Kerala Municipality Act) is authorized to evict and auction to raise funds. They rely on Rule 7 and on bye-laws Ext.R1(a) (even though dated) and on sub-committee findings (Ext.R1(c)) indicating sub-leases. They argue that the building is Panchayat property and that eviction and auction are justified to prevent illegal sub-leases and to generate revenue; they cite the need to proceed under the rules and the statute to dispose of property through auction.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Soman v. Kottarakara Grama Panchayat	2003 (2) KLT 1007	Mentioned Only	Cited by the petitioners’ side to support arguments; the judgment does not adopt or distinguish it, instead deciding the matter on statutory provisions.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 29TH DAY OF NOVEMBER 2016/8TH AGRAHAYANA, 1938** ## **WP(C).No. 7974 of 2014 (V)** ## **---------------------------** **PETITIONER(S):** **-----------------------** **1. PALLIPARAMBAN MUHAMMAD KUTTY, S/O.MUHAMMAD, 58 YEARS, KOTTAPPARAMBIL HOUSE, MELANGADI, MALAPPURAM DISTRICT.** **2. C. MUHAMMAD BAVA, S/O.VEERAN, 70 YEARS, KUNNUMML HOUSE, KONDOTTY, MALAPPURAM DISTRICT.** **3. P.C. MUHAMMAD,** - **S/O.MAYIN HAJEE, 50 YEARS, ALUNGA THODI HOUSE, KONDOTTY, MALAPPURAM DISTRICT.** **4. MUHAMMAD ISMAIL,** - **S/O.MUHAMMAD KUTTY, 55 YEARS, CHEVIDIKUZHY HOUSE, KARIPUR, MALAPPURAM DISTRICT.** **5. CHELLI. C., S/O.NEELAKANDAN, 59 YEARS, CHELANGADAN HOUSE, KONDOTTY, MALAPPURAM DISTRICT.** **6. MURALIDASAN, S/O.KRISHNAN, 38 YEARS, THEKKINTHOTTATHIL HOUSE, KONDOTTY, MALAPPURAM DISTRICT.** **7. BASHEER K.P.,** - **S/O.HASSAN, 43 YEARS, KONDASSAM PARAMBIL HOUSE, KONDOTTY, MALAPPURAM DISTRICT.** **BY ADVS.SRI.V.T.RAGHUNATH, SMT.C.V.RAJALAKSHMI.** **.....2/-** ## **-: 2 :-** **WP(C).No. 7974 of 2014 (V)** **RESPONDENT(S):** **-------------------------** **KONDOTTY GRAMA PANCHAYAT, REPRESENTED BY SECRETARY, KONDOTTY GRAMA PANCHAYAT, MALAPPURAM DISTRICT-673 638.** **BY ADV. SRI.S.SHANAVAS KHAN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-11-2016, ALONG WITH WP(C).NO.9770 OF 2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** rs. ## **WP(C).No. 7974 of 2014 (V)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **P1COPY OF THE AUCTION NOTICE PUBLISHED BY THE KONDOTTY GRAMA PANCHAYAT DT. 13.11.2003.** - **P2COPY OF THE NOTICE ISSUED BY THE KONDOTTY GRAMA PANCHAYAT TO THE 1ST PETITIONER DT. 05.02.2014.** - **P3COPY OF THE NOTICE ISSUED BY THE KONDOTTY GRAMA PANCHAYAT TO THE 2ND PETITIONER DT. 05.02.2014.** - **P4COPY OF THE NOTICE ISSUED BY THE KONDOTTY GRAMA PANCHAYAT TO THE 3RD PETITIONER DT. 05.02.2014.** - **P5COPY OF THE NOTICE ISSUED BY THE KONDOTTY GRAMA PANCHAYAT TO THE 4TH PETITIONER DT. 05.02.2014.** - **P6COPY OF THE NOTICE ISSUED BY THE KONDOTTY GRAMA PANCHAYAT TO THE 4TH PETITIONER DT. 05.02.2014.** - **P7COPY OF THE NOTICE ISSUED BY THE KONDOTTY GRAMA PANCHAYAT TO THE 4TH PETITIONER.** - **P8COPY OF THE NOTICE ISSUED BY THE KONDOTTY GRAMA PANCHAYAT TO THE 5TH PETITIONER DT. 05.02.2014.** - **P9COPY OF THE NOTICE ISSUED BY THE KONDOTTY GRAMA PANCHAYAT TO THE 6TH PETITIONER DT. 05.02.2014.** - **P10COPY OF THE NOTICE ISSUED BY THE KONDOTTY GRAMA PANCHAYAT TO THE 7TH PETITIONER DT. 01.03.2014.** - **P11COPY OF THE RECEIPT ISSUED BY THE KONDOTTY GRAMA PANCHAYAT TO THE 1ST PETITIONER DT.04.03.2014.** - **P12COPY OF THE RECEIPT ISSUED BY THE KONDOTTY GRAMA PANCHAYAT TO THE 2ND PETITIONER DT.04.03.2014.** - **P13COPY OF THE RECEIPT ISSUED BY THE KONDOTTY GRAMA PANCHAYAT TO THE 3RD PETITIONER DT.03.03.2014.** - **P14COPY OF THE RECEIPT ISSUED BY THE KONDOTTY GRAMA PANCHAYAT TO THE 4TH PETITIONER DT.04.03.2014.** **....2/-** ## **WP(C).No. 7974 of 2014 (V)** - **P15COPY OF THE RECEIPT ISSUED BY THE KONDOTTY GRAMA PANCHAYAT TO THE 4TH PETITIONER DT.04.03.2014.** - **P16COPY OF THE RECEIPT ISSUED BY THE KONDOTTY GRAMA PANCHAYAT TO THE 4TH PETITIONER DT.04.03.2014.** - **P17COPY OF THE RECEIPT ISSUED BY THE KONDOTTY GRAMA PANCHAYAT TO THE 5TH PETITIONER.** - **P18COPY OF THE RECEIPT ISSUED BY THE KONDOTTY GRAMA PANCHAYAT TO THE 6TH PETITIONER DT. 17.02.2014.** - **P19COPY OF THE RECEIPT ISSUED BY THE KONDOTTY GRAMA PANCHAYAT TO THE 7TH PETITIONER DT. 20.02.2014.** - **P20COPY OF THE ORDER NO.A18437/13 DT. 01.03.2013 ISSUED BY THE KONDOTTY GRAMA PANCHAYAT TO THE 1ST PETITIONER.** - **P21COPY OF THE ORDER NO.A18437/13 DT. 01.03.13 ISSUED BY THE KONDOTTY GRAMA PANCHAYAT TO THE 2ND PETITIONER.** - **P22COPY OF THE ORDER NO.A18437/13 DT. 01.03.2013 ISSUED BY THE KONDOTTY GRAMA PANCHAYAT TO THE 3RD PETITIONER.** - **P23COPY OF THE ORDER NO.A18437/13 DT. 01.03.2013 ISSUED BY THE KONDOTTY GRAMA PANCHAYAT TO THE 4TH PETITIONER.** - **P24COPY OF THE ORDER NO.A18437/13 DT. 01.03.2013 ISSUED BY THE KONDOTTY GRAMA PANCHAYAT TO THE 4TH PETITIONER.** - **P25COPY OF THE ORDER NO.A18437/13 DT. 01.03.2013 ISSUED BY THE KONDOTTY GRAMA PANCHAYAT TO THE 4TH PETITIONER.** - **P26COPY OF THE ORDER NO.A18437/13 DT. 01.03.2013 ISSUED BY THE KONDOTTY GRAMA PANCHAYAT TO THE 5TH PETITIONER.** - **P27COPY OF THE ORDER NO.A18437/13 DT. 01.03.2013 ISSUED BY THE KONDOTTY GRAMA PANCHAYAT TO THE 6TH PETITIONER.** - **P28COPY OF THE ORDER NO.A18437/13 DT. 01.03.2013 ISSUED BY THE KONDOTTY GRAMA PANCHAYAT TO THE 7TH PETITIONER.** - **P29COPY OF THE ADVANCE RECEIPT DT. 06.07.2014 ISSUED BY THE KONDOTTY GRAMA PANCHAYAT TO THE 1ST PETITIONER.** **.....3/-** ## **WP(C).No. 7974 of 2014 (V)** ## **RESPONDENT'S EXHIBITS:-** **EXT.R1A COPY OF THE BUE LAW APPROVED BY THE PANCHAYAT WITH REGARD TO THE SHOPPING COMPLEX.** - **EXT.R1B COPY OF THE DECISION NO.15 OF THE KONDOTTY GRAMA PANCHAYAT DATED 29/01/2014.** **EXT.R1C COPY OF THE SUB COMMITTEE REPORT.** **EXT.R1D COPY OF THE DECISION NO.3 DATED 10/02/2014 OF THE KONDOTTY GRAMA PANCHAYAT.** **EXT.R1E COPY OF THE LIST OF TENANTS ALONG WITH THE DETAILS OF THE ROOM HELD BY THEM.** **//TRUE COPY//** **P.S. TO JUDGE** rs. ## **K. VINOD CHANDRAN, J.** -----------------------------------------W.P.(C) Nos. 7974 & 9770 of 2014 -----------------------------------------Dated: 29[th] November, 2016 ## **J U D G M E N T** The petitioners are occupants of shop rooms in a building of the Panchayat. Admittedly, the Panchayat had issued a notification, as seen from Ext.P1, even prior to the construction of the building, proposing auction of the rooms in the building intended to be constructed. The petitioners were persons who participated in the auction and bid successfully the respective rooms occupied by them. The auction was finalised on the basis of the deposit and rent offered by each of the bidders. The petitioners were inducted into the constructed building in 2004, on the basis of the auction conducted as per Ext.P1 in the year 2003. ## **W.P.(C) Nos.7974 & 9770/2014** **-2-** 2. The petitioners were continuing in their respective shop rooms and they were also paying the rent applicable to each of them. The petitioners were aggrieved by the eviction notices issued to them, produced in the writ petitions, which alleged sub-lease. 3. The learned Standing Counsel for the Municipality (the Panchayat which inducted the petitioner is now converted into a Municipality), submits that as per the bye-laws produced at Ext.R1(a), there can be no sub-lease of the building; in the event of which the original lessees and the sub lessees would be liable for eviction from the premises. The petitioners who had been lessees for the last more than twelve years, have all sub-let their respective shop rooms and it is, hence, the Municipality has decided to conduct an auction, which, in any event, would generate more **-3-** ## **W.P.(C) Nos.7974 & 9770/2014** funds to the Municipality. It is also submitted that a Sub-Committee appointed by the Council of the Municipality had conducted inspection of the premises and had specifically noticed the persons who were inducted as sub-lessees by the original lessees. The said list is produced as Ext.R1(c). 4. The learned Counsel appearing for the petitioners have two contentions on the eviction notices issued against them. Rule 7 of the Kerala Panchayat Raj (Acquisition and Disposal of Property) Rules, 2005 ('Rules' for short) is specifically referred to. Sub-Rule (1) of Rule 7 of the Rules speaks of disposal of property only in accordance with the provisions of the Act and Rules and the Bye-laws made by the Municipality. It is pointed out that the bye-laws, now produced as Ext.R1(a), does not show any date and it is not clear as ## **W.P.(C) Nos.7974 & 9770/2014** **-4-** to when the Council adopted the said bye-laws. In such circumstance, it has to be found that there is no bye-laws in existence, is the first contention raised. On reference to Sub-Rule (4) of Rule 7, it is also contended that the same mandates a notice against the original lessee as also the sub lessee before an eviction is conduced. 5. With respect to the contention based on Sub-Rule (1) of Rule 7, it has to be stated that the prescription therein is only to frame bye-laws, if found necessary and the specific words employed are: “that may be made by the Panchayat”. The use of “may” indicates that it is not a mandate and it is for the Panchayat to decide as to whether any bye-laws have to be framed or not. Even in the context of there being no bye-laws framed, necessarily the Panchayat could proceed against any sub-lessee, based on Sub-Rule (4) **-5-** ## **W.P.(C) Nos.7974 & 9770/2014** of Rule 7; which in this case, has been incorporated in the bye-laws. In such circumstance, the first contention of the petitioners is found against them. 6. However, as to Sub-Rule (4), the same speaks of cancellation of license issued to a person and notice of eviction to the “person or persons enjoying and possessing that building, room or space”. Hence, the original lessee of the Municipality, who is enjoying the premises, on the basis of a lease and the sub-lessee who is in possession of the room, both have to be issued with notice. In the present case, there is no such notice issued and there is only the report of the Standing Committee, which noticed the persons who are in occupation of the rooms at the time of inspection. It is contended by the petitioners that the persons who were found to be present in the shop rooms were the employees of the lessee. ## **W.P.(C) Nos.7974 & 9770/2014** **-6-** 7. The Municipality definitely could take appropriate proceedings against the sub-lessees and could also seek for eviction of these persons, with notice, both to the original lessee and sub lessee; in accordance with Section 215 of the Kerala Municipality Act, 1994, since, as of now, the Panchayat has been converted to a Municipality. The learned Standing Counsel for the Municipality also submits that the petitioners having been in occupation for so many the could even without the years, Municipality allegation of sub-lease, evict them and conduct an auction of the rooms for generation of more funds to the Municipality. The said contention is raised on the basis of the decision in **Soman v. Kottarakara Grama** . **Panchayat - 2003 (2) KLT 1007** 8. After dictation of the judgment, the learned Counsel for the petitioners submitted that they may be ## **W.P.(C) Nos.7974 & 9770/2014** **-7-** permitted to continue in the respective rooms until the auction is conducted. In such circumstance, this Court directed the petitioners to file an affidavit agreeing to hand over vacant possession on auction being conducted and the shop rooms being allotted to third parties. 9. The petitioners in W.P.(C) No.7974/2014 have filed such an affidavit, with, however, only a reservation insofar as permitting them to un-install and remove all temporary structures which are existing in their respective shop rooms on vacant possession being handed over to the respondent Municipality. It is also prayed that they may be returned the deposits originally given at the time of auction, in the year 2003. 10. The petitioner in W.P.(C) No. 9770/2014 has not filed such an affidavit, but, even then; there can be no better right conferred on that petitioner also. In ## **W.P.(C) Nos.7974 & 9770/2014** **-8-** such circumstance, the undertaking in W.P.(C) No.7974/2014 is recorded. The Municipality would be entitled to proceed for public auction of the shop rooms which the petitioners are now occupying. The petitioners would also be entitled to participate in such public auction. If any of the petitioners are not successful in the auction, then, the petitioners would vacate the premises within one week of the notice issued by the Panchayat, confirming auction on a third party. The temporary installations would be removed in the presence of the Municipality. The above direction shall also apply to the petitioner in W.P.(C) No.9770/2014. The security deposit, on such vacant possession being handed over, shall be refunded by the Municipality without interest, within two weeks from the date of handing over of possession, after deducting any amounts due to the respondent Municipality. **-9-** ## **W.P.(C) Nos.7974 & 9770/2014** If the petitioners do not give vacant possession, in spite of notice issued; the Municipality would be entitled to summarily evict such persons. The writ petitions are disposed of with the above observations and directions. No costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 23/11/16