IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 23802 of 2008(H)
1. KONDANATH BEERAN HAJI
... Petitioner
Vs
1. THE THIRURANGADY GRAMA PANCHAYAT
... Respondent
2. THE ESTATE OFFICER
3. THE DISTRICT COLLECTOR
For Petitioner :SRI.MILLU DANDAPANI
For Respondent :SRI.T.SETHUMADHAVAN
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :28/10/2008
O R D E R
S. Siri Jagan, J.
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W. P (C) No. 23802 of 2008
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Dated this, the 28th October, 2008.
J U D G M E N T
The petitioner was a lessee of a shop room in a shopping
complex owned by the 1st respondent-Panchayat. On allegations of
making alterations in the shop room without prior permission of the
Panchayat, the Panchayat decided not to renew the lease after 31-3-
2007. On the ground that since the lease period has expired which
has not been renewed, the petitioners continued occupation of the
shop room is unauthorised, the estate officer of the Panchayat
initiated proceedings under the Kerala Buildings (Eviction of
Unauthorised Occupants) Act, 1968, which resulted in Ext. P6 order,
whereby the petitioner was directed to vacate the unauthorised
occupation and to put the Panchayat in vacant possession of the shop
room. The petitioner challenged Ext. P6 order before this Court,
which resulted in Ext. P7 judgment, whereby the petitioner was
directed to avail of alternate remedy by way of appeal before the
District Collector. The petitioner filed Ext. P8 appeal, which was
dismissed by the District Collector by Ext. P9 order. The petitioner is
challenging Exts.P 6 and P9 orders.
2. The contention of the petitioner is that the very non-renewal
of the lease itself is unsustainable in so far as although the petitioner
had originally constructed a pit, which is required for the business of
the petitioner in the shop room as per the directions of the Panchayat,
the same had been filled up and the shop room has been brought to its
original condition, and therefore the reason for non-renewal of lease
is no more in existence. Therefore, the petitioner submits that the
petitioner is entitled to have the lease extended and consequently
Exts.P 6 and P9 orders are liable to be set aside. The petitioner
therefore seeks the following reliefs:
“1. Call for the records leading to the case and issue a writ of
W.P.C. No. 23802/08 -: 2 :-
Certiorari or any other appropriate writ, order or direction to
quash Exhibit P4 order passed by the 2nd respondent and Exhibit
P9 order passed by the 3rd respondent;
2. Issue a writ of mandamus or any other appropriate writ,
order or direction directing the 1st respondent to produce the copy
of the lease Deed executed between the petitioner and the 1st
respondent to substantiate and appreciate the contentions of the
lease and also clause 2(4) of the lease;
3. Declare that the respondent 2 and 3 have no jurisdiction to
deal with the case of the petitioner treating the petitioner as an
unauthorized occupant coming within the purviews of the Kerala
Public Buildings (Eviction of Unauthorized Occupants) Act, 25 of
1968;
4. Issue a writ of mandamus or any other appropriate writ,
order or direction directing the 3rd respondent to pass fresh
speaking orders in the Exhibit P8 Appeal, if it is found that he is a
competent officer to deal with the appeal under the said Act.”
3. A counter affidavit has been filed by the 1st respondent
Panchayat. According to them, the petitioner effected material
alterations to the shop building by digging a pit inside the shop room.
The petitioner was given notice in writing to bring the shop room to
its original condition. But, he refused to do the same. In spite of
several written notices, the petitioner failed to comply with the
direction. It is under the said circumstances the Panchayat decided
to terminate the lease and to call upon the petitioner to vacate the
premises. According to the 1st respondent, the petitioner has not so
far challenged the non-renewal of the lease. Therefore, the lease
period having expired on 31-3-2007, continued occupation of the shop
room by the petitioner amounts to unauthorised occupation attracting
the provisions of the Kerala Public Buildings (Eviction of Unauthorised
Occupants) Act, 1968. In this respect, the 1st respondent Panchayat
relies on the decision of the Supreme Court in Corporation of
Calicut v. Sreenivasan, 2002(2) KLT 291 (SC) for the proposition
that even though originally the occupation was authorised, on
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cancellation or non-renewal of lease of licence, the continued
occupation becomes unauthorised, attracting the provisions of the
Kerala Public Buildings (Eviction of Unauthorised Occupants) Act,
1968.
4. I have considered the rival contentions in detail.
5. As rightly pointed out by the learned counsel for the
Panchayat, the lease period expired on 31-3-2007 and the petitioner
has not till date challenged the non-renewal of the lease. In fact, in
Ext. P6 order itself, it is specifically stated that the tenancy itself has
been terminated by issuing a notice under Section 106 of the Transfer
of Property Act. Even in this writ petition, the petitioner does not
specifically challenge the order of non-renewal of the lease. As far as
the contention of the petitioner that the non-renewal of lease is not
sustainable, in order to decide the same, ascertainment of facts on
evidence would be necessary in so far as the petitioner alleges that
immediately on receipt of notice the petitioner had restored the shop
room to its original status whereas the Panchayat would contend
that in spite or repeated notices, the petitioner refused to restore the
shop room to its original state. That being so, even assuming that the
petitioner’s indirect challenge against the non-refusal of the lease can
be countenanced, in view of the disputed facts, I do not think that I
can consider that question in this writ petition.
6. The Panchayat has produced the lease deed issued in favour
of the petitioner wherein clause 4 specifically states thus:
“(4) Not to make or permit to be made under any circumstances
any alterations in or additions to the demised buildings without
the previous consent in writing of the lessor or its duly authorized
officers PROVIDED ALWAYS that if the lessee is permitted to
make my alternations by the lessor its duly authorized officers and
the lessee shall not be entitled to any compensation thereof.”
The petitioner has no case that before constructing the pit in the
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room, the petitioner had obtained previous consent in writing of the
Panchayat. That being so, construction of pit is a direct violation of
the above condition in the lease deed. The petitioner himself has
admitted that he had dug the pit without previous permission which is
a violation of the lease condition. That being so, I do not think that
the action of the Panchayat in refusing to renew the lease on account
of the violation of the terms and conditions of the lease can be faulted.
7. In the above circumstances, although, originally the
petitioner’s occupation was authorised on expiry of the lease period
on 31-3-2007, the occupation of the shop room by the petitioner
becomes unauthorised. In the decision in Sreenivasan’s case
(supra), in paragraphs 6 and 17, the Supreme Court had held thus:
“6. The necessity of enacting Kerala Public buildings
(Eviction of Unauthorised Occupants) Act, 1968 by the Kerala
Legislature appears to be that the tendency to unauthorisedly
occupy public buildings, either from its very inception without any
authority whatsoever or continuing in its occupation after the
authority under which a person was allowed to occupy had either
expired or had been determined for any reason whatsoever, was
galloping fast and keeping in mind the time taken for eviction
under ordinary law by resorting to civil suit in a protracted
litigation, a speedy remedy has been provided by enacting such
special legislation therefore. ‘Public building’ has been defined
under S. 2(d) of the Act to mean any building or part of a building
belonging to or taken on lease or requisitioned by, or on behalf of,
the Government or a local authority or a company or a corporation.
‘Corporation’ has been defined under S. 2(aa) to mean a
corporation established or constituted by or under any Central or
State Act and owned or controlled by the Government of Kerala.
Under S. 3 of the Act, the State Government is empowered to
appoint any Gazetted Officer below the rank of District Collector as
estate officer for exercising the powers under the Act and S.4
empowers the estate officer to initiate a proceeding for eviction of
those persons who are found to be in unauthorised occupation of
any public building whereas under S. 5 he is competent to pass an
order of eviction. S. 10 provides for an appeal against the order of
eviction. S. 15 of the Act creates a bar to the institution of a suit
challenging the order of eviction passed by the estate officer as
well as that passed in appeal. S. 2(f) of the Act which defines the
expression ‘unauthorised occupation’ may be usefully quoted
hereinbelow:
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“S. 2(f) “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 public building
after the authority (whether by way of lease or another mode of
transfer) under which he was allowed to occupy the building has
expired or has been determined for any reason whatsoever.
(Emphasis supplied)
The definition of expression ‘unauthorised occupation’ contained in
S. 2(f) of the Act is in two parts. In the first part, the said
expression has been defined to mean the occupation by any
person of the public building without authority for such
occupation. It implies occupation by a person who has entered in
occupation of any public building without lawful authority as well
as occupation which was permissive at the inception but has
ceased to be so. The second part of the definition is inclusive in
nature and it expressly covers continuance in occupation by any
person of the public 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. This part covers a case where a person
had entered into occupation legally under valid authority, but who
continues in occupation after the authority under which he was put
in occupation has expired or has been determined. The words
‘whether by way of lease or any other mode of transfer’ in this part
of the definition are very wide in amplitude and would,
undoubtedly cover a case where a person has come into
occupation of a public building under an authority granted in his
favour by the licence as a licensee, which has expired or has been
determined.
xx xx xx
17. It is true that a licensee does not acquire any interest in
the property by virtue of grant of licence in his favour in relation to
any immovable property, but once the authority to occupy and use
the same is granted in his fafour by way or licence, he continues to
exercise that right so long the authority has not expired or has not
been determined for any reason whatsoever,meaning thereby so
long the period of licence has not expired or the same has not been
determined on the grounds permissible under the contract or law.
Occupation of licensee is permissive by virtue of the grant of
licence in his favour, though he does not acquire any right in the
property and the property remains in possession and control of the
grantor, but by virtue of such a grant, he acquires a right to
remain in occupation so long the licence is not revoked and/or he
is not evicted from its occupation either in accordance with law or
other wise. Main thrust of S. 2(f) of the Act is upon the expression
‘occupation’ with authority or without authority. If a personW.P.C. No. 23802/08 -: 6 :-
without any authority occupies any public building, he would be
trespassed and his case would be covered by first part of S. 2(f)
and would be liable to be evicted under the provisions of the Act
instead of taking recourse to ordinary law by filing a properly
constituted suit which is dragged on for years together. Second
part of S. 2(f) deals with cases where a person is in occupation by
virtue of an authority granted in his favour irrespective of the fact
whether the authority is in the form of lease or licence or in any
other form. So far as case of lease of a public building is
concerned, upon expiry of the period limited thereby or its
determination in accordance with law, the special procedure
prescribed under the Act providing speedy remedy for eviction
would apply even though some interest in the immovable property
is created in favour of the lessee by virtue of creation of lease in
his favour. But in a case of licence, no interest in the property is
created by virtue of the grant but a person acquires a right to
continue his occupation by virtue of the authority granted in his
favour under the licence unless the period of licence has expired
or the same has been determined or licence has been revoked
and/or the licensee is evicted by the grantor. If it is held that S. 2
(f) would apply only in case of lease and not in the case of licence,
the position will be very incongruous as in the case of lease,
though a lessee acquires interest in the property which is a higher
right, but the can be evicted under the special procedure
prescribed under the law providing much speedy remedy whereas
in case of licence, a licensee, who does not acquire any interest in
the property and has only some sort of right of occupation by
virtue of the nature of grant in his favour so long as he is not
evicted, can be evicted through long drawn ordinary procedure of
filing a civil suit. This could not have been the intention of the
Legislature. Apart from that, out of the expressions ‘whether by
way of lease’ or ‘any other mode of transfer’ the expression ‘any
other mode of transfer’ is very wide and would not necessarily
mean only that mode of transfer whereby a right has been created
in immovable property. The expression ‘transfer under the
Transfer of Property Act connotes creation of some interest in
immovable property. But under S.2(f) of the Act, such a restricted
meaning would defeat the purpose of legislation which is
impermissible. The expression “any other mode of transfer” would
definitely bring within its sweep the case of a licensee where right
of the grantor to occupy and continue to occupy immovable
property is transferred though under law, the property remains in
possession and control of the grantor. In view of the foregoing
discussions, we hold that the expression ‘unauthorised occupation’
within the meaning of S. 2(f) of the Act would embrace within its
ambit the case of licensee as well after expiry of the period of
licence or upon its determination for any reason whatsoever, as
such the estate officer was quite justified in initiating proceeding
under the Act and passing eviction order therein.”
W.P.C. No. 23802/08 -: 7 :-
Therefore, the reliance by the Panchayat on the above decision is
apposite in this case. Once it is held that the petitioner’s continued
occupation of the shop room on 31-3-2007 is unauthorised, then the
petitioner cannot validly challenge Exts.P 6 and P9 orders since the
Panchayat is perfectly entitled to take action under the above said Act
for eviction of the petitioner from the unauthorised occupation of the
shop building, as held by the Supreme Court in the above decision.
8. Apart from that, I am not inclined to exercise my
discretionary jurisdiction in favour of the petitioner, since the
Panchayat submits that the petitioner is the owner of a shopping
complex wherein there are 68 shop rooms. Of course, the petitioner
would contend that, that shopping complex is not his alone, and it
belongs to the family consisting of his brothers and sisters also and he
is managing the same only as a power of attorney holder. Even
assuming the same to be true, since the shopping complex is under
his control by virtue of the power of attorney held by him, nothing
prevents the petitioner from occupying one of the rooms therein for
the purpose of his business.
For the above reasons, I do not find any merit in the challenge
against Exts.P 6 and P9. Accordingly, the writ petition is dismissed.
However, the Panchayat shall grant the petitioner one month’s time to
vacate the building in question, pursuant to the impugned orders.
Sd/- S. Siri Jagan, Judge.
Tds/