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CASE NO.:

Appeal (civil) 3283 of 2002

PETITIONER:

THE CORPORATION OF CALICUT

Vs.

RESPONDENT:

K. SREENIVASAN

DATE OF JUDGMENT: 03/05/2002

BENCH:

S. Rajendra Babu & B.N. Agrawal

JUDGMENT:

B.N. AGRAWAL,J.

Leave granted.

The judgment impugned in this appeal has been passed by Kerala High

Court in a Second Appeal whereby the same has been allowed, appellate

decree, upholding that of the trial court dismissing the suit, set aside and the suit

has been decreed.

The short facts are that the appellant-Corporation, which was established

by an Act promulgated by Kerala Legislature, owned a building constructed by

it in the year 1972 and immediately after construction the plaintiff-respondent

was put in its occupation as a licensee on payment of licence fee at the rate of

Rs. 4325/- per month wherein he was running a lodging house as well as a

restaurant. As the plaintiff-respondent defaulted in making payment of licence

fee, the licence was terminated on 1.3.1989 whereafter the plaintiff’s continuance

in occupation of the building in question became unauthorised leading to

issuance of a notice by the Estate Officer under Section 4 of the Kerala Public

Buildings (Eviction of Unauthorised Occupants) Act, 1968 (hereinafter referred to

as ‘the Act’) which was duly served upon the plaintiff-respondent, requiring him

to show-cause as to why an order of eviction be not passed against him in view

of the fact that his occupation became unauthorised within the meaning of

Section 2(f) of the Act inasmuch as the licence granted in his favour was

terminated. Thereupon, on 23.6.1989 the Estate Officer after satisfying himself

that the building was in unauthorised occupation of the respondent passed an

order of his eviction therefrom. The said order of eviction was challenged by the

plaintiff-respondent before the Civil Court by filing a suit for permanent injunction

restraining the defendant-appellant from evicting the plaintiff from the building

pursuant to the aforesaid order of eviction stating , inter alia, that the plaintiff was

inducted as a tenant and not licensee and in case he was found to be a

licensee, his occupation could not be treated to be unauthorised within the

meaning of Section 2(f) of the Act, as such the Estate Officer could not have

assumed jurisdiction and passed order of eviction. The suit was contested by

the defendant-appellant on grounds, inter alia, that the plaintiff was a licensee

and not a lessee, that occupation of licensee after termination of the licence

became unauthorised within the meaning of Section 2(f) of the Act, as such the

Estate Officer was quite competent to pass an order of eviction and the suit was

barred under Section 15 of the Act.

The trial court dismissed the suit observing that it was not necessary to go

into the question as to whether the transaction was lease or licence as even if it

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was a case of licence, the same was covered by the provisions of Section 2(f) of

the Act, the Estate Officer had jurisdiction to decide the matter and pass an order

of eviction and consequently the suit was barred under Section 15 of the Act.

On appeal being preferred, the trial court’s decree was affirmed with a finding

that the transaction in question was licence and not lease. Thereupon, the

plaintiff-respondent filed a Second Appeal before the Kerala High Court which

allowed the same, set aside judgment and decree passed by the appellate court

upholding those of the trial court and decreed the suit on the ground that the

Estate Officer had no jurisdiction to entertain the matter and pass order of

eviction under the provisions of the Act as occupation of the plaintiff-respondent

cannot be treated to be unauthorised within the meaning of Section 2(f) of the Act

as case of licensee is not covered therein and consequently the bar created