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2015 Supreme(Ker) 829
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ASHOK BHUSHAN & A.M.SHAFFIQUE, JJ.
HAMZA AND ORS. – Appellant
Vs.
THE THIRUNAVAYA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY AND ORS. – Respondents
W.A. Nos. 965 & 1026 of 2015
Decided On : 29.07.2015
For the Appellant : SRI.T.KRISHNAN UNNI (SR.), SRI.T.SIVADASAN, SRI.VINOD RAVINDRANATH, SMT.MEENA.A., SRI.SAJU.S.A, SRI.K.C.KIRAN.
For the Respondents: SRI.C.E.UNNIKRISHNAN, SC, THIRUNAVAYA GRAMA PANCHAYAT, SRI.K.MOHANAKANNAN, SMT.A.R.PRAVITHA.
The main legal point established in the judgment is the requirement for notice before eviction and the right to participate in auctions, emphasizing the violation of principles of natural justice and the need to comply with statutory provisions.
Headnote:
Easements Act - Eviction of Licensees - Kerala Panchayat Raj (Acquisition and Disposal of Property) Rules 2005 - Summary of Acts and Sections: The court discussed the application of the Easements Act and the Kerala Panchayat Raj (Acquisition and Disposal of Property) Rules 2005 in the eviction of licensees. It highlighted the violation of principles of natural justice and the failure to comply with statutory provisions, emphasizing the need for notice before eviction and the right to participate in auctions. The court also addressed the issue of renewal of licenses and the legality of the eviction process. The judgment set aside the eviction, declared it illegal and arbitrary, and allowed the licensees to remove their articles from the premises. It directed the Panchayat to conduct a re-auction, giving the licensees the option to participate, and reserved the right to claim damages for wrongful eviction.
Fact of the Case:
The Panchayat evicted the appellants from shop rooms without notice, alleging unauthorized occupation and non-payment of rent. The appellants sought relief through writ petitions, challenging the eviction and seeking re-possession and damages.
Finding of the Court:
The court found the eviction to be illegal and arbitrary, emphasizing the violation of principles of natural justice and failure to comply with statutory provisions. It allowed the licensees to remove their articles from the premises and directed the Panchayat to conduct a re-auction, giving the licensees the option to participate.
Issues: The main issues included the legality of the eviction process, the right to re-possession, and the claim for damages for wrongful eviction.
Ratio Decidendi: The court held that the eviction without notice was in violation of principles of natural justice and statutory provisions. It emphasized the need for notice before eviction and the right to participate in auctions. The judgment set aside the eviction, declared it illegal and arbitrary, and allowed the licensees to remove their articles from the premises. It directed the Panchayat to conduct a re-auction, giving the licensees the option to participate, and reserved the right to claim damages for wrongful eviction.
Final Decision: The judgment set aside the eviction, declared it illegal and arbitrary, and allowed the licensees to remove their articles from the premises. It directed the Panchayat to conduct a re-auction, giving the licensees the option to participate, and reserved the right to claim damages for wrongful eviction.
Shaffique, J.
These appeals are filed against the common judgment dated 17/4/2015 in WP(C) Nos.2570/2015 and 35461/2014 respectively.
2. WP(C) No.2570/15 has been filed by the appellants herein challenging the action taken by the Thirunavaya Grama Panchayat and its Secretary in evicting them from their business premises without complying with any of the statutory provisions.
3. The short facts involved in the writ petition are:
The Panchayat owns two shopping complexes under the name and style 'New Shopping Complex' and 'Sashraya Shopping Complex'. Petitioners contend that they had taken shop rooms in the aforesaid shopping complexes on licence basis and they have been paying the rent. It is also stated that they have paid certain amount as security deposit and even if there was some rent in arrears, the security amount could have been adjusted towards the arrears of rent. It is alleged that there was an attempt to forcibly evict them from the premises by certain others and the petitioners filed OS No. 445/2010 before the Munsiff's Court, which is pending. In the meantime, on 26/12/2014, the Secretary of the Panchayat along with a large police force came to the shop buildings and forcibly evicted them and the shop rooms were closed. A notice was also affixed indicating that the shops were closed as per the decision of the Panchayat on 9/12/2014 and parties were directed to submit their objections. Petitioners submitted their objections to the aforesaid action. However, they were not permitted to open the shop rooms. It is stated that various type of business activities were done in the shop rooms including sale of perishable articles. It is alleged that the action of the respondent Panchayat in closing down the shop rooms is a high handed action and therefore, the petitioners sought for the following reliefs;
"i) to declare that the petitioners and brother Pilathede Kunhi Muhammed of 1st petitioner and son of second petitioner Abdul Rasheed are the tenants of shop rooms in the new Shopping Complex and in the Sashraya Shopping Complex of Thirunavaya Grama Panchayat bearing Room Nos.3/520 G, 3/512A, 3/35-C & F.
ii) to issue a writ of Mandamus or any other appropriate writ order directing the respondents to open the shop rooms and allow the petitioner Pilathedath Kunji Muhammed and brother of the 1st petitioner and the son of second petitioner Abdul Kareem to do business within shop rooms.
Iii) to award a compensation of Rs.2 lakhs each to the petitioners and the brother of the 1st petitioner and to son of the second petitioner".
4. WP(C) No.35461/2014 has been filed by respondents 1 and 2 in WA No.1026/2015 in which the appellants are additional respondents 5 to 12. The writ petition was filed by them seeking for a direction to the Deputy Director of Panchayats and the Secretary of the Panchayat to conduct public auction of the rooms in the market and shopping complex in accordance with the provisions of the Kerala Panchayat Raj Act and the Rules framed thereunder and to allot the rooms accordingly. Further direction was sought to the Director of Panchayats and Deputy Director of Panchayat to take action against the Secretary and President of the Panchayat in the light of Ext.P1 report dated 1/10/2014 and Ext.P2 audit report dated 23/7/2014.
5. It is inter alia contended in the said writ petition that the shop rooms in the market and shopping complex of the Panchayat which is having 35 rooms are being occupied by unauthorised persons without any licence or permission from the Panchayat and some of them are being occupied by strangers. It is also alleged that certain persons are occupying the buildings on sub lease without permission and some of the rooms are remaining unoccupied. Reference is made to the audit reports of 2011-2012 and 2012-2013 in which various discrepancies and violations of statute have been noticed. Petitioners specifically refers to the observation which indicates that there is no effective rental/auction p
