2015 Supreme(Ker) 1240
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Antony Dominic and P.V. Asha, JJ.
Subaida Abdul Rasheed and Ors. - Appellants
Vs.
State of Kerala and Ors. - Respondents
W.A. No. 1265 of 2014 in WP(C) 28432/2013
Decided On : 11-11-2015
For the Appellant : R.S. Kalkura, Adv.
For the Respondents: Shyson P. Manguzha, Sr. Govt. Pleader.
Headnote:
Kerala Municipality Act, 1994 - Sections 376( 3)(a), 376( 3)(b) and 406 - Vacate of Land - Notice of - Occupation of Land of Municipality without sanction - Held, provision shows that only after serving notice on the occupant and only if the occupant does not vacate the land within the time specified in the notice, summary eviction under this provision can be resorted to - , if a person is found to be occupying any land belonging to the Municipality, without its previous sanction, he shall be liable for penalty and also, for summary eviction under sub-section (3)(a) thereof. However, S.376(3)(b) provides before eviction under S.376(3)(a), a notice shall be served on the person in occupation or his agent, requiring him, within such time as the Secretary may deem reasonable after receipt of the said notice, to vacate the land. If such notice is not obeyed, then only, the occupant can be evicted in the manner as provided therein. This provision, therefore, shows that only after serving notice on the occupant and only if the occupant does not vacate the land within the time specified in the notice, summary eviction under this provision can be resorted.
Antony Dominic, J.
1. Petitioners in W.P(C).28432/13 are the appellants. They filed the writ petition seeking to declare that the act of the 6th respondent demolishing the portion of the building where they were residing, without any notice, is illegal and to direct the 6th respondent to restore the demolished portion of the residential building or to recover the costs of the same from the respondents. The writ petition having been dismissed, this appeal is filed.
2. Briefly stated, the facts of the case are that according to the appellants, they are in possession of 12 cents of land in Survey No. 680 and 683 of Vanchiyoor village, where they have constructed a building which has been numbered by the Corporation. Although the Corporation has described the structure as a shed and has disputed the assertion that the building was numbered by it, we do not think it necessary to resolve that controversy in this case. Be that as it may, it is a fact that the appellants are in possession of the land and are residing in the structure therein.
3. According to the appellants, various proceedings were initiated by different authorities to illegally evict them from the property and the building and at one stage, the Revenue Divisional officer took over the property and appointed a Receiver. Those proceedings concluded by restoring the property to the appellants. It is also stated that subsequently, the residents' association of Padma Nagar, a neighbouring residential colony, filed OS.132/96 before the Munsiff Court, Trivandrum seeking an order of injunction against the appellants from 'trespassing' into the property in question. The suit was dismissed by Ext. P3 judgment and the said judgment was confirmed by the first appellate court. It is stated that subsequently, though this Court remanded the matter to the Munsiff Court, judgment was again rendered dismissing the suit.
4. While matters stood thus, the Corporation issued Ext. P7, an order under section 406(3) of Kerala Municipalities Act, 1994 (hereinafter, the 'Act', for short). Subsequently, proceedings under the Kerala Land Conservancy Act, 1957 were also initiated by Exts. P13(a) and P13(b). That was contested by the appellants by filing Ext. P14 reply, where, they inter alia contended that the application filed by them for assignment of the land was pending consideration of the District Collector. Apprehending coercive action pursuant to Exts. P13(a) and P13(b), appellants filed W.P(C).20899/07, which culminated in Ext. P16 judgment, where, this Court directed that the District Collector should pass final orders on the assignment application submitted by the appellants. It was also ordered that further proceedings pursuant to Exts. P13(a) and P13(b) will be kept in abeyance and will be continued subject to the order to be passed by the District Collector. This resulted in Ext. P22 order passed by the District Collector whereby the application for assignment of the land was rejected. According to the appellants, a revision filed by them against this order is still pending before the Land Revenue Commissioner.
5. In the mean while, appellants challenged Ext. P7 order issued under section 406(3) of the Kerala Municipality Act in an appeal filed before the Tribunal for Local Self Government Institutions. By Ext. P25 order, the Tribunal set aside Ext. P7 holding thus:
"13. As already pointed out above, it is stated in the provisional order dated 18.6.2008 that the construction is done over property belonging to the Government. If the constructions are done on properties vested in the Corporation the proper procedure to be followed is that under Section 376 of the Kerala Municipality Act. The procedure under Section 406 of the Kerala Municipality Act are to be initiated as against unauthorised and illegal constructions if any done over the property of the person against whom the proceedings are initiated.
14. In the circumstances pointed out above, the impugned order is not sustaina