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2015 Supreme(Ker) 141

HIGH COURT OF KERALA
DAMA SESHADRI NAIDU, J.
Usha Jacob - Petitioner
Versus
The Corporation of Thiruvananthapuram, Represented by its Secretary, Museum Junction & Others - Respondents
WP(C). No. 2961 of 2015 (U)
Decided on: 02-03-2015

Advocate Appeared:
For the Petitioner:R.S. Kalkura, M.S. Kalesh, Harish Gopinath, R. Bindu, Gens George Elavinamannil, Advocates.
For the Respondents:R1 & R2, Nandakumara Menon, Sr. SC, R3 to R6, G. Gopakumar, Senior Government Pleader, R7, M. Ajay, SC, R8, D. Ajithkumar, Advocate.

Headnote:

Kerala Municipality Act 1994 - Sections 447 & 492( 3) - Tenancy - Industries, Factories And Other Trades - Purpose for which places may not be used without licence - General provisions regarding licences and permissions - Whether tenant is evicted through execution of the decree and whether tenant can be prevented from enjoying the property in a legally permissible manner - Challenged - Held, Until the tenant is evicted through execution of the decree, the tenant cannot be prevented from enjoying the property in a legally permissible manner - A statutory authority is ordained to act under a statutory mandate once an affected person approaches it; it cannot turn around and advise the person to have recourse to an alternative course on the ground of a perceived inconvenience.

Judgment

1. Briefly stated, the petitioner is a tenant of the eighth respondent, a part of whose property, situated in Menamkulam Village, Thiruvananthapuram Taluk, was let out way back in 2005. In course of time, the eighth respondent is said to have instituted a suit for eviction, which, in fact, was decreed on 30.09.2013. Thereafter, though the petitioner filed R.C.A. No. 32/2012 before the Rent Control Appellate Authority (the District Court), Thiruvananthapuram, she could not succeed, as the appellate court rendered a concurrent finding through its judgment, dated 19.09.2014. Nevertheless, the petitioner contends that so far the copy of the judgment in appeal has not been made available to her to lay further challenge against the decree in appeal.

2. It is the specific contention of the petitioner that before the petitioner could be evicted through due process, the eighth respondent had taken recourse to a devious stratagem to oust the petitioner from the demised property. As a stratagem, the eighth respondent is said to have let out the balance portion of the property just in front of the petitioner's demised house to certain outsiders, who established a daily market without any valid licence from the respondent Corporation.

3. The grievance of the petitioner is that by letting others to illegally conduct the market in the adjacent property, the eighth respondent has actually barred access to her house. Thus ventilating her grievance that the market is being conducted in violation of the Municipal Regulations, the petitioner has submitted Exhibit P8 complaint. The first respondent Corporation, in turn, issued Exhibit P15 informing the petitioner to complain to the police authorities on the ground of trespass. Aggrieved thereby, the petitioner has filed the present writ petition.

4. The learned counsel for the eighth respondent, the owner of the property, has submitted that the eighth respondent has never let out the property to any third party. If there are any trespassers, he has, in fact, nothing to do with them.

5. The learned Senior Counsel for the first respondent Corporation has submitted that initially a market was established by the respondent Corporation at Kazhakoottam market. Its being under renovation, the Corporation has temporarily shifted the market to a site adjacent to Bye-pass road. If any persons without licence and authority have trespassed upon the property under the occupation of the petitioner and established any market, she is at liberty to lodge a police complaint, upon which the respondents 4 to 6 may act. The learned Senior Counsel has also submitted that, in terms of the statutory provisions in that regard, if this Court gives any direction to the first respondent Corporation to restrain the trespassers from holding any market, it may be impossible for the respondent Corporation to implement such a directive. According to the learned Senior Counsel, the respondent Corporation does not have any information about who those trespassers are.

6. In further elaboration of his submissions, the learned Senior Counsel has submitted that, if one batch of trespassers is to be evicted, the Corporation cannot be sure that some other batch of persons would not repeat the same thing, leading to a perpetual problem, which is very difficult for the Corporation to deal with.

7. Accordingly, justifying Exhibit P15 communication of the respondent Corporation, the learned Senior Counsel has contended that the petitioner is at liberty to approach the police authorities ventilating her grievance.

8. Heard the learned counsel for the petitioner and the learned Senior Counsel for the first respondent Corporation, as well as the learned counsel for the eighth respondent, apart from perusing the record.

9. The facts are not in dispute. The petitioner, a tenant, even after the expiry of the lease period, is still a tenant a tenant at sufferance though. Notwithstanding the decree for eviction, so far the actual eviction through du



























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