IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 2649 of 2009(M)
1. JOSEPH PHOENIX
... Petitioner
Vs
1. THE TAHSILDAR, KANAYANNUR, ERNAKULAM
... Respondent
For Petitioner :SRI.V.C.JAMES
For Respondent : No Appearance
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :23/01/2009
O R D E R
PIUS.C.KURIAKOSE & M.C.HARI RANI, JJ.
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W.P.(C)No.2649 OF 2009
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Dated this the 23rd day of January, 2009
JUDGMENT
Pius.C.Kuriakose, J.
The prayer in this writ petition under Article 226 of the
Constitution filed by the petitioner, who claims to be a tenant of a
building belonging to the second respondent, is that with the intention
of compelling him to vacate the building occupied by him other than of
the provisions of Act 2 of 1965, the second respondent has locked up
the tenanted building. According to the petitioner, he filed Ext.P2
petition before the first respondent – Accommodation Controller on
16/01/2009 and the Accommodation Controller readily entertained the
petition, conducted enquiry through the village officer and the village
officer reported to the Accommodation Controller that the landlady
confessed before him that she deliberately locked up the room since the
petitioner tenant had not obliged to her request for surrender. Ext.P3
order is seen passed by the Accommodation Controller accepting the
report on 20/01/2009.
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2. The present writ petition is filed seeking immediate
implementation of Ext.P3 by directing the first respondent Tahsildar to
break open the locks of the building in question and thereby facilitate
the petitioner’s re-entry into the building.
3. We have heard Sri.George Mecheril, learned counsel for
the petitioner. He persuaded us very strenuously for passage of
interim order in the lines of the final prayer in the writ petition for
implementation of Ext.P3 forthwith. According to the learned counsel,
the petitioner is unable to possess and enjoy the building in which he is
carrying on business as a tenant paying rent promptly. Despite the
persuasive submission of the learned counsel, we are of the view that
we won’t be justified in granting relief – interim or final, in this case.
The first respondent has passed the order only on 20/01/2009.
According to the learned counsel, Ext.P4 application seeking
implementation of Ext.P3 was filed by the petitioner before the first
respondent only yesterday ( 22/01/2009).
4. Learned counsel asserted before us that Ext.P4 was actually
moved for orders before the first respondent yesterday (22/01/2009) at
11:00 a.m. and that the first respondent has taken up the same for
orders. It is too early for the petitioner to complain that Ext.P3 has not
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been implemented by the first respondent and therefore we are inclined
to decline the relief on the reason that the writ petition is pre-mature.
5. Having gone through Ext.P3, what we notice is that a final
order has been passed by the first respondent granting the final relief
sought for by the petitioner in Ext.P2 application without notice to the
second respondent landlady. The enquiry referred to in Ext.P3 is
obviously an enquiry which was ordered without notice to the second
respondent. Even if in the enquiry, Tahsildar has given notice to the
second respondent, the first respondent is expected to hear the second
respondent also, before a final order in the nature of Ext.P3 is issued.
Now that the petitioner is seeking immediate implementation of Ext.P3,
it is necessary that the first respondent hears the second respondent also
before he passes final orders on Ext.P4.
Under the above circumstances, even as we decline the relief
sought for in the writ petition, we issue the following order:
1) If Ext.P4 petition has been received on the
files of the first respondent on 22/01/2009 as the
petitioner asserts and if no final order has been so far
passed on Ext.P4 by the first respondent, the first
respondent will issue a hearing notice to the second
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respondent by special messenger and pass final orders
on Ext.P4 in accordance with law after hearing the
second respondent also.
2) The first respondent will ensure that final
orders are passed on Ext.P4 immediately i.e. at any rate
within two days of service of the hearing notice on the
second respondent. Hearing as directed above shall be
conducted on the very date mentioned in the hearing
notice.
3) Even if final orders have already been
passed on Ext.P4 by the first respondent, the first
respondent will not issue coercive process for
implementation of those final orders without giving a
breathing time to the second respondent to obey the
order.
PIUS.C.KURIAKOSE, JUDGE
M.C.HARI RANI, JUDGE
sv.
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