Secretary, Greater Cochin Development Authority v. C.P. Abdul Rahiman

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **TUESDAY, THE 10TH DAY OF JUNE 2014/20TH JYAISHTA, 1936** ## **RSA.No. 676 of 2013 ()** **----------------------AS 56/2010 of 5[th] ADDL.DISTRICT COURT,ERNAKULAM IN OS 988/2008 of Ist ADDL.MUNSIFF COURT, ERNAKULAM -----------** ## **APPELLANT/APPELLANT/DEFENDANT :** **--------------------------------------------------------** **SECRETARY, GREATER COCHIN DEVELOPMENT AUTHORITY, KOCHI-682 020.** **BY ADVS.SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.K.A.NOUSHAD SRI.P.U.VINOD KUMAR SRI.KANDAMPULLY RAHUL SRI.MITHUN BABY JOHN SRI.J.RAMKUMAR** ## **RESPONDENT/RESPONDENT/PLAINTIFF :** **----------------------------------------------------------** **C.P.ABDUL RAHIMAN, AGED 43 YEARS, S/O. C.P.MUHAMMED, THOUFEEQ MANZIL, PARAPPANANGADI, MALAPPURAM DISTRICT-676505** **BY ADV. SRI.K.T.SHYAMKUMAR SRI.HARISH R. MENON** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BP** ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 676 of 2013 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10[th] day of June, 2014 ## **J U D G M E N T** Faced with a decree for injunction issued by the trial court as confirmed by the lower appellate court, Greater Cochin Development Authority (hereinafter referred to as 'GCDA') comes up in appeal. 2. Shorn off unnecessary details, the essential facts are as follows: GCDA admittedly owned a building in Marine Drive. It had a ramp which was lying vacant. The plaintiff in the suit applied for a space in the ramp and GCDA, after following the necessary procedures alloted 200 sq.ft. to him. He thereafter executed Ext.A1 lease deed in pursuance to the allotment order. While he was enjoying the premises on lease, he was served with Ext.A8 notice informing him that they intended to terminate his allotment in public interest. Ext.A9 reply was furnished by the plaintiff and Ext.A10 order ## **R.S.A. No. 676 of 2013** **-2-** came to be passed. That made the plaintiff to come to the court. 3. The complaint of the plaintiff was that the so called public interest now projected by the GCDA is nothing but tactics of the Shop and Office Holders Association which has been trying for a long time to evict persons like the plaintiff. Referring to O.S.No. 1135/2005 in which GCDA was the defendant and in which they had filed a written statement, it was pointed out that in that suit GCDA had opposed the claim made by the Shop and Office Holders Association that the ramp ought not to have been alloted to anybody and had in fact contended that the Shop and Office Holders Association had not right whatsoever to make such a demand. Later when more pressure mounted on the GCDA, they turned around to issue such a proceeding. Challenging the proceedings, the suit was laid. 4. GCDA resisted the suit on the ground that the suit was not maintainable in view of Section 15 of the Kerala ## **R.S.A. No. 676 of 2013** **-3-** Public Buildings (Eviction of Unauthorized Occupants) Act. They also contended that the action taken by them was in public interest and the plaintiff had no vested right to remain in the premises. The document namely Ext.A1 lease deed made explicitly clear that lease could be terminated at any time and therefore the plaintiff is not entitled to any relief. 5. On the basis of the above pleadings, issues were raised and the parties went to trial. The evidence consists of the testimony of PW1 and documents marked as Exts. A1 to A10 from the side of the plaintiff. The defendant had DW1 examined and had Exts. B1 to B8 marked. 6. Both the courts below, on an appreciation of the evidence, found that the claim of public interest was a bogus one and it was in fact the pressure mounted by the Shop and Office Holders Association which prompted the GCDA to take action against the plaintiff. Further and more important finding is that even assuming that action could be taken, only the allotment of the space alone was cancelled and the **R.S.A. No. 676 of 2013** **-4-** lease deed on the basis of which the plaintiff came to occupy the premises was not terminated as is known to law and therefore it could not be said that the plaintiff was in unauthorized occupation of the premises. Holding so, the suit was decreed and it was confirmed in appeal. 7. At the time of admission of this appeal, the following substantial questions of law were formulated. “(i) Whether the civil court has jurisdiction to adjudicate upon the validity and correctness of an action initiated under the provisions of the Kerala Public Buildings (Eviction of Unauthorized Occupants) Act, 1971 in view of the bar under Sec.15 of the said Act? (ii) Whether the courts below are right in holding that the plaintiff is not an unauthorized occupant in view of Sec.2(f) of the Kerala Public Buildings (Eviction of Unauthorized Occupants) Act, 1971? (iii) Whether the courts below are right in holding that the lease is not terminated as per Sec.106 of the T.P.Act, in the facts and circumstances of the case? (iv) When the lease deed provides for unilateral termination of the lease on the **R.S.A. No. 676 of 2013** **-5-** ground of public interest, is not the lessee estopped from contending that the action taken is not in public interest unless malafides are pleaded and proved in the case?” 8. Sri. Babu Karukapadath, the learned counsel appearing for the appellant assails the finding of the courts below on several grounds. According to the learned counsel, the courts below were not justified in coming to the conclusion that the suit is maintainable. For the above proposition, the learned counsel relied on the decision reported in **The Corporation of Calicut** v. **K. Sreenivasan** [AIR 2002 SC 2051] and pointed out that when a statute prescribes remedies in itself, recourse the civil suit is not permitted. The learned counsel went on to point out that it was in public interest that the act was undertaken and the plaintiff could not claim any vested interest in the property. It was also contended that proper procedure has been followed and at all stages, the plaintiff was heard in person. Elaborating, it was pointed out that after the suit was ## **R.S.A. No. 676 of 2013** **-6-** instituted, and after Ext.A10 notice was issued based on which the suit was laid, further proceedings have been taken as would be evidenced by Exts. B4 , B5 etc., which are under the Act made mention of above. Eviction has been ordered under the provision of the said Act and in fact the plaintiff had also filed an appeal. It is contended on behalf of the appellant that the plaintiff has no subsisting right to continue in the premises after the termination of the arrangement under which he came to hold the premises. 9. The learned counsel appearing for the respondent pointed out that at no point of time, be it by notice or otherwise, there was a termination of the lease arrangement as evidenced by Ext.A1 on the basis of which plaintiff was put in possession of the premises. The so called public interest now taken aid of by the GCDA was the subject matter of an earlier suit namely O.S.No. 1135/2005 wherein, the GCDA sought to justify their act of allotment and pointed out that the Shop and Office Holders Association had no **R.S.A. No. 676 of 2013** **-7-** subsisting right to resist the act of GCDA. Quiet contrary to the said stand in Ext.A7 written statement, the GCDA now turns around to say that they are being evicted in the public interest. Whatever that may be, according to the learned counsel who relied on the decision reported in **Metro Studio** v. **Canara Bank** [2003 (2) KLT 629] and contended that unless the lease arrangement by which he now occupies the premises is terminated by a procedure known to law, he cannot be held to be in unauthorized occupation and provisions of Act 25 of 1968 cannot be taken aid of. 10. There seems to be considerable force in the submissions made by the learned counsel for the respondent. Both the courts below have considered the evidence in considerable detail and have come to the conclusion that the so called public interest now agitated by GCDA cannot be accepted for more than one reason. 11. There have been suits between Shop and Office Holders Association and GCDA as is evidenced by Exts. A6 ## **R.S.A. No. 676 of 2013** **-8-** and A7. Ext. A7 is the copy of the written statement filed by GCDA in O.S.No. 1135/2005. That was a suit filed by the Shop and Office Holders Association against GCDA complaining about the act of GCDA in allotting the ramp and other vacant spaces in the premises. The specific contention of the GCDA was that the Shop and Office Holders Association had no right over the vacant space and they had no right to object to the lawful activities of the GCDA. 12. After having taken such a stand, later on when pressure mounted it is seen that the GCDA changed their stand. It now says that the eviction that is being sought for was in public interest. 13. Be as it may, the question arises whether the procedures followed are just and proper and if there is any valid termination on the arrangement by which the plaintiff is in possession of the premises to make him an unauthorized occupant. **R.S.A. No. 676 of 2013** **-9-** 14. It will be useful at this point of time to refer to the definition of unauthorized occupant as contained in Act 25 of 1968. Section 2(f) defines unauthorized occupant as follows: “Unauthorised occupation, in relation to any public building, means the occupation by any person of the building without authority for such occupation and includes the continuance in occupation by any person of the building after the authority (whether by way of lease or any other mode of transfer) under which he was allowed to occupy the building has expired or has been determined for any reason whatsoever.” 15. By no stretch of imagination, it could be said that the initial entry of the plaintiff was illegal or unauthorized. He continues in the premises on the basis of Ext.A1 lease agreement. One must recollect here that the lease arrangement was preceded by an allotment order of the premises to the plaintiff. The allotment letter makes it clear that the possession of the premises would be given only on execution of the lease arrangement and the continuance of ## **R.S.A. No. 676 of 2013** **-10-** possession of the plaintiff will be on the basis of lease agreement. Both the courts below have found that in almost all communications by the GCDA to the plaintiff informing him about either the cancellation or asking him to vacate premises only deal with the cancellation of the allotment and not the cancellation or termination of the lease arrangement which is evidenced by Ext.A1 document. 16. The learned counsel appearing for the appellant then contended that Ext.A10 could be treated as a termination notice. How one wishes it could be so. There too what is mentioned is only that the allotment is cancelled and not the lease arrangement evidenced by Ext.A1. The contention raised by the learned counsel for the appellant that once the allotment is cancelled, substratum goes and the lease arrangement does not survive. 17. It is difficult to accept the above plea. The allotment and the lease arrangement are two independent and distinct transactions. It would be clear from the ## **R.S.A. No. 676 of 2013** **-11-** allotment letter which says that allotment by itself will not enable the plaintiff to occupy premises and the possession will be given to him only after the execution of the lease deed. There can be no manner of doubt that the occupation of the plaintiff is on the basis of lease arrangement. 18. Exts. B4, B5 etc., on which considerable reliance is placed by the learned counsel for the appellant are all subsequent to the suit and during the pendency of the suit. It is interesting to note that even after it was brought to the notice of the GCDA in the suit that there is no termination of lease. They still did not find it necessary to terminate the lease and continued harping on cancellation of the allotment. Apart from the fact that those documents are subsequent to the filing of the suit there again, there is no termination of lease arrangement. 19. In this regard, the decision relied upon by the learned counsel for the respondent reported in **Metro Studio** v. **Canara Bank** [2003 (2) KLT 629] applies with all ## **R.S.A. No. 676 of 2013** **-12-** force. There too, an identical situation arose and this Court had occasion to hold that unless the lease is validly terminated as is known to law, it could not be said that there was unauthorized occupation. That principle is applies to the case on hand. 20. As already noticed, both the courts below have considered the matter in considerable detail, after adverting to the evidence on record. A reference to the evidence of DW1 would leave one in no doubt that the GCDA too understood the occupation of the plaintiff as on the basis of Ext.A1 lease deed. 21. Under the facts and circumstances of the case, as there is no termination of the lease agreement though there may be a cancellation of the allotment and since the occupation and the possession of the plaintiff is on the basis of Ext.A1 lease deed, the courts below were perfectly justified in granting relief to the plaintiff. This Court finds no ground to interfere with the judgment and decree of the ## **R.S.A. No. 676 of 2013** **-13-** courts below. This appeal is without merits and is accordingly dismissed with costs throughout. Sd/- **P.BHAVADASAN JUDGE** ds //True Copy// P.A. To Judge