Sajitha D v District Tourism Promotion Council (DTPC), Kollam; The District Collector, Kollam; The Tahsildar and Incident Commander, Karunagapally; Pramod S.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 14[TH] DAY OF JULY 2022 / 23RD ASHADHA, 1944 WP(C) NO. 19661 OF 2022** ## **PETITIONER/S:** SAJITHA D AGED 41 YEARS W/O. DHARMAJAN, THE MANAGING PARTNER, DREAMZ INFOTECH, KING CITY ARCADE, KARUNAGAPALLY, KOLLAM, PIN: 690 518. BY ADVS. K.R.VINOD M.S.LETHA K.S.SREEREKHA NABIL KHADER ## **RESPONDENT/S:** 1 DISTRICT TOURISM PROMOTION COUNCIL (D.T.P.C.) KOLLAM REPRESENTED BY ITS SECRETARY, NEAR KSRTC BUS STAND, KOLLAM, PIN: 691 001. 2 THE DISTRICT COLLECTOR, OFFICE OF THE DISTRICT COLLECTOR, KOLLAM, PIN: 691 001. 3 THE TAHSILDAR AND INCIDENT COMMANDER, KARUNAGAPALLY, KOLLAM, PIN: 690 518. 4 PRAMOD. S AGED ABOUT 50, S/O. NOT KNOWN, EDAYILA VEEDU, NAMBARUVIKALA P.O., KARUNAGAPALLY, KOLLAM, PIN: 690 573. BY ADVS. ENOCH DAVID SIMON JOEL S.SREEDEV RONY JOSE LEO LUKOSE CIMIL CHERIAN KOTTALIL ## **OTHER PRESENT:** ADV.K.AMMINIKUTTY **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** **05.07.2022, THE COURT ON 14.07.2022 DELIVERED THE FOLLOWING:** W.P.(C) No.19661 of 2022 -2- ## **JUDGMENT** Dated this the 14[th] day of July, 2022 The petitioner had entered into Ext.P1 agreement with the first respondent for operating the Green Channel Tourist Centre at Alumkadavu, Karunangappally. The agreement was for a period of 12 months from 28.04.2018, with a stipulation for cumulative increase of licence fee at the rate of 15% each year if the agreement period is extended, which in any case shall not exceed three years. According to the petitioner, after being entrusted with the operation of the tourist centre, she had expended a large amounts for renovation providing necessary amenities, in an effort to attract tourists. Unfortunately, the business suffered huge set backs by reason of the floods of 2018 and 2019, followed by Covid19 pandemic and resultant lockdown. The ## W.P.(C) No.19661 of 2022 -3- petitioner could resume the functioning of the resort only from November, 2020, after it was returned to her possession as per Ext.P4 dated 24.10.2020. While so, the petitioner was issued with Ext.P5 notice dated 21.02.2022, requiring her to surrender the building to the first respondent as the agreement period was only up to 30.05.2020. The petitioner submitted Ext.P6 reply highlighting the difficulties faced by her and requesting to extend the term of contract. In the meanwhile, tender was conducted for granting fresh licence to conduct the Green Channel Resort and the 4[th] respondent became the successful bidder. As there was compulsion to vacate the building, petitioner approached this Court by filing W.P.(C) No.16787 of 2022, wherein Ext.P7 judgment was rendered directing the first respondent to consider petitioner's representation after giving an opportunity of ## W.P.(C) No.19661 of 2022 -4- hearing. Ext.P8 proceedings has been issued in compliance of the direction in the judgment, rejecting the request made in the representation. This writ petition is filed aggrieved by Ext.P8 and seeking extension of the agreement period by six months. The further prayer is to direct the respondents to follow due process of law in adjudicating the dispute and not to resort to any unlawful means to evict the petitioner. 2. Learned Counsel for the petitioner contended that the first respondent ought to have considered the petitioner's representation sympathetically in view of the undisputed fact that the functioning of the resort had come to a standstill by reason of the floods and the pandemic. The first respondent committed gross illegality in commencing the tender process much prior to expiry of the agreement period. Even if the petitioner continues after the agreement ## W.P.(C) No.19661 of 2022 -5- period, he has to be treated as a person in unauthorised occupation and can be evicted only by resorting to due process of law. It is submitted that, during the pendency of this writ petition, a team of officials consisting of the District Collector and senior police officers, had summarily the evicted the petitioner from the premises, without even permitting her to remove the movables and other articles belonging to her. It is submitted that the action of the respondents militates against Articles 14 and 19(g) of the Constitution of India. If at all, the respondents could have evicted the petitioners only by resort to the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act. The eviction being patently illegal, the petitioner should be re-inducted to the building, is the final submission. In support of the contentions, learned Counsel relied on the W.P.(C) No.19661 of 2022 -6- ## decision in _**Manjunath K. v. Bangalore Development**_ ## _**Authority [2019 KHC 5274]** ._ 3. In reply, learned Counsel for the respondents contended as follows; As per Ext.P1, the period of licence was 12 months from 28.04.2018. the licence was not renewed at any point of time. But the petitioner was permitted to continue occupation. Although, the maximum period prescribed in Ext.P1 expired on 28.04.2021, the petitioner was permitted to continue until 30.05.2022, taking into account the hardships faced by her. As such, the petitioner has no vestige of right to seek continuance beyond 30.05.2022. The executive committee of the first respondent had taken a decision on 18.01.2022 to invite tenders for licencing various centres under it. The petitioner was informed about the decision as per Ext.P5. The notice of tender was published on ## W.P.(C) No.19661 of 2022 -7- 2.03.2022. In the tender process, the petitioner's brother, Sajeev V also participated. As a matter of fact, even in the earlier tender, the bid document was submitted by Sajeev V and the agreement executed by the petitioner. The petitioner had participated in the tender process through her brother, this time also and therefore, she cannot turn around and challenge the tender process at this belated stage. Ext.R1(e) agreement having been executed between the new licensee and the first respondent on 16.05.2022, the petitioner cannot be permitted to occupy the premises. 4. In reply to the contention that the petitioner can be evicted only by due process of law, learned Counsel submitted that the petitioner is only a licensee and his rights on eviction is governed by Section 64 of the Easements Act. To bolster the contention, W.P.(C) No.19661 of 2022 -8- reliance is placed on the decisions in _**Sakkeer and another v. Director of Panchayat and others [2015 (3) KHC 207]**_ and _**Corporation of Calicut v. Sreenivasan [2002(5) SCC 361]**_ 5. The petitioner's contention regarding right to continuance cannot be countenanced in the light of the admitted fact that she was allowed to continue for four years, even though the agreement period was one year. The contention as to the illegality in having commenced the tender process within the extended period is also liable to be rejected, the petitioner's brother having participated in the tender on her behalf. This finding is entered after considering the exhibits produced by the first respondent, which conclusively shows that on the previous occasion also, the petitioner's brother had submitted the bid on her behalf and the agreement was later executed in the ## W.P.(C) No.19661 of 2022 -9- petitioner's name. 6. The final argument to be dealt with is that, even if the petitioner continues after expiry of the agreement period, her occupation can only be termed as unauthorised, in which case she can be evicted only by resorting to due process of law, which in this case is the Public Premises (Eviction of Unauthorised Occupants) Act. It is true that in _**Manjunath K.** (supra),_ the High Court of Karnataka has held that even a trespasser cannot be thrown out by the State or its instrumentalities, except by a course of action in accordance with law. But the position herein is different, as the petitioner has already been evicted. It is true that the eviction had taken place during the pendency of this writ petition. Even then, the clock cannot be set back now, as there was no order interdicting the respondents. The rights of a W.P.(C) No.19661 of 2022 -10- licensee on eviction is dealt with in Section 64 of the Easements Act extracted hereunder; _“64. Where a license has been granted for a consideration and the licensee, without any fault of his own, is evicted by the grantor before he has fully enjoyed, under the license, the right for which he contracted, he is entitled to recover compensation from the grantor.”_ As such, the petitioner's legal right is to seek compensation and not restoration. The legal position laid down by the Apex Court in _**Sreenivasan** (supra)_ is also that, even if a licensee is forcefully evicted, his remedy is to recover compensation from the granter and not to resume occupation. For the reasons aforementioned, the writ petition is dismissed, reserving the petitioner's right to seek appropriate remedy before the civil court. The respondents shall permit the petitioner W.P.(C) No.19661 of 2022 -11- to remove her personal belongings and movables from the premises under the supervision of an officer deputed by the first respondent. Sd/- **V.G.ARUN JUDGE** Scl/ W.P.(C) No.19661 of 2022 -12- ## **APPENDIX OF WP(C) 19661/2022** ## PETITIONER EXHIBITS |Exhibit P1|TRUE COPY OF THE LICENCE AGREEMENT| |---|---| ||EXECUTED BETWEEN THE PETITIONER AND| ||THE 1ST RESPONDENT DATED 28.04.2018.| |Exhibit P2|TRUE COPY THE LETTER ISSUED BY THE| ||ASST. ENGINEER, IRRIGATION SECTION,| ||KARUNAGAPALLY TO THE PETITIONER UNDER| ||THE PROVISIONS OF RIGHT TO INFORMATION| ||ACT, DATED 18.05.2022.| |Exhibit P3|TRUE COPY OF THE PROCEEDINGS OF THE| ||3RD RESPONDENT DATED 06.05.2020 BY| ||WHICH THE RESORT OF THE PETITIONER WAS| ||TAKEN AS QUARANTINE CENTER.| |Exhibit P4|TRUE COPY OF THE PROCEEDINGS OF THE| ||3RD RESPONDENT DATED 27.10.2020.| |Exhibit P5|TRUE COPY OF THE LETTER ISSUED BY THE| ||1ST RESPONDENT TO THE PETITIONER DATED| ||21.02.2022.| |Exhibit P6|TRUE COPY OF THE WRITTEN| ||REPRESENTATION SUBMITTED BY THE| ||PETITIONER BEFORE THE 1ST RESPONDENT| ||DATED 16.05.2022, ACKNOWLEDGED BY THE| ||1ST RESPONDENT ON 20.05.2022.| |Exhibit P7|A TRUE COPY OF THE JUDGMENT IN WPC| ||NO.16787/2022 DATED 27.05.2022.| |RESPONDENT EXHIBITS|| |Exhibit R1(d)|Abstract of the tender form dated| ||30.03.2022 submitted by Sri. Sajeev V.| |Exhibit R1(a)|True copy of the form of tender dated| ||28.08.2017 submitted by Sri. Sajeev V,| ||as Proprietor of Dreamz Infotech.| |Exhibit R1(b)|True copy of the letter dated| ||26.04.2018 submitted by the Petitioner| ||to the 1st Respondent.| |Exhibit R1(e)|True copy of the license agreement| ||dated 16.05.2022 entered into between| ||the 1st Respondent and the 4th| ||Respondent.| -13- ## W.P.(C) No.19661 of 2022 Exhibit R1(c) Exhibit R1(f) Exhibit R1(g) Exhibit R1(h) Exhibit R1(i) True copy of the minutes of the meeting of the Executive Committee of the 1st Respondent held on 18.01.2022. True copy of the letter dated 27.05.2022 submitted by the Petitioner before the 1st Respondent. True copy of the acknowledgment card True copy of the letter dated 13.06.2022 issued by the Secretary of the 1st Respondent to the Supervisor of the 1st Respondent. True copy of the letter dated 15.06.2022 issued by the 1st Respondent to the Station House Officer of the Karunagapally Police Station. Exhibit R1(j) True copy of the notice dated 21.06.2021 issued by the 1st Respondent to the Petitioner Exhibit R1(j) True copy of the notice dated 21.06.2021 issued by the 1st Respondent to the Petitioner Exhibit R1(j) True copy of the notice dated 21.06.2021 issued by the 1st Respondent to the Petitioner