SUPREME COURT OF INDIA
THE CORPORATION OF CALICUT – Appellant
Versus
K. SREENIVASAN – Respondent
C.A. No.-003283-003283 / 2002
03-05-2002
ROMY CHACKO
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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