Dismissed

E.Prakashan v. Union of India

Kerala HC18 Nov 2022WP(C)/12722/2019

Case brief

AI extract

What is this about?

The High Court dismissed the writ petition filed by a shop tenant challenging a public notice for e-auction of shoprooms. The Court held that the petitioner, being in illegal occupation, lacked locus standi to challenge the auction on reservation premises.

What did the court decide?

The challenge to the public notice for e-auction was dismissed, holding the petitioner lacked locus standi while in illegal occupation.

E.Prakashan Vs Union of India — Contract and Commercial Disputes | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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FRIDAY, THE 18^TH DAY OF NOVEMBER 2022 / 27TH KARTHIKA,

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1944

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WP(C) NO. 12722 OF 2019

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PETITIONER/S:

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E.PRAKASHAN AGED 57 YEARS S/O LATE M. NARAYANAN, ERUMAL (H), AZHIKODE P.O.KANNUR.

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BY ADV L.RAJESH NARAYAN

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RESPONDENT/S:

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1 UNION OF INDIA REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF DEFENCE, NEW DELHI- 110 001.

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2 THE ESTATE OFFICER, (THE CHIEF EXECUTIVE OFFICER), CANTONMENT BOARD, CANNANORE, HQ HOSPITAL P.O.KANNUR 670 107

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3 THE CANTONMENT EXECUTIVE OFFICER, OFFICE OF THE CANTONMENT BOARD, CANNANORE, HQ HOSPITAL P.O.KANNUR-670 107 BY ADVS. SHRI.P.VIJAYAKUMAR, ASG OF INDIA SRI.SUVIN R.MENON, CGC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON

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01.09.2022, THE COURT ON 18.11.2022 DELIVERED THE FOLLOWING:

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W.P.(C) No.12722 of 2019

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JUDGMENT

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Dated this the 18^th day of November, 2022

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The petitioner is conducting business in shoproom Nos.19 and 23 in the Shopping Complex of the Cantonment Board, Kannur. The petitioner's

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lease was renewed from time to time up to 31.03.2018. While so, action was initiated to

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cancel the lease. Thereupon, the petitioner along with other tenants of the shopping complex approached this Court in W.P.(C) Nos.14810 and 14983 of 2017. Those writ petitions were disposed under Ext.P4 with the following observations;

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“3. By interim order dated 28.04.2017, the petitioners were directed to be continued, but, however, the tender proceedings were also allowed to be proceeded with. The learned Central Government Counsel submits that, as of now, no tender notification has been issued and the petitioners' lease, up to 31.03.2018, will not be disturbed. The

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W.P.(C) No.12722 of 2019

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writ petitions are closed recording the undertaking of the 2^nd respondent, but, however, reserving the liberty of the 2^nd respondent to proceed for fresh tender proceedings in the next year. No Costs.”

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The writ appeal filed against that

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judgment was dismissed as withdrawn without prejudice to the petitioner's right to move a fresh writ petition on a subsequent cause of action. Thereafter, the petitioner and other tenants were issued with notices demanding charges for the usage of the rooms. According to the petitioner, the steps initiated for evicting the tenants was challenged in W.P.(C) No.11140 of 2018 and the writ petition was disposed of by order dated 04.04.2018 with a direction that the petitioners shall not be evicted from the premises in occupation otherwise than in accordance with law. Thereafter, fresh notices for eviction were issued under the Public Premises (Eviction of Unauthorized Occupants)

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W.P.(C) No.12722 of 2019

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Act, 1971 followed by eviction orders dated 06.06.2018. Even though the eviction orders were challenged before the District Court, Kannur, the appeals were dismissed by order dated 16.02.2019. Except the petitioner, the other tenants challenged the eviction orders and the judgment in appeal before this Court, but without success. Thus, the order of eviction attained finality. The petitioner is presently aggrieved by Ext.P8 public notice, by which the Cantonment Board is proceeding to conduct e-auction of 36 shop rooms

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in the Cantonment Bus stand building. The challenge against Ext.P8 is on the premise that the auction is being conducted without making provision for the mandatory reservation for exservicemen, war widows, spouses/widows of exservicemen etc.

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Adv.L.Rajesh Narayan Iyer, learned Counsel for the petitioner, submitted that in Ext.P11 judgment, this Court has observed that

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W.P.(C) No.12722 of 2019

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it is not open for respondents 1 and 2 to pick

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and choose any person of their choice for the award of contract, de hors their obligation to consider the case of war-widows orphans, disabled soldiers, and other ex-service men who would be interested in self employment as indicated in the extant instruction/guideline. It is therefore contended that the auction proposed by Ext.P8 without providing the mandatory reservation is illegal. To drive home the contention regarding reservation, reliance is placed on the Defence Shopping Complexes (Maintenance and Administration) Rules, 2006 with specific reference to Rule 12. The other contention is

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that Ext.P8 is not issued in accordance with the procedure prescribed under the Cantonments Act, 2006.

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Advs.S.Manu and Suvin R.Menon, learned

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ASG and CGC appearing for respondents 1 to 3, put forth the following common contentions;

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W.P.(C) No.12722 of 2019

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Being an unauthorised occupant, the petitioner has no locus standi to challenge Ext.P8. The proceedings for eviction under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 has attained finality as far as the petitioner is concerned and at best, the petitioner can only participate in the tender after vacating the premises. The challenge on the basis that no reservation is provided for eligible classes is premature and cannot be entertained at this point of time.

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Adv.Suvin R.Menon raised strong exception to

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the contention that there was an interim direction in W.P.(C) No.11140 of 2018 to proceed for eviction only in accordance with law. It is submitted that the writ petition is still pending consideration before this Court. The proceedings and eviction order under Public Premises (Eviction of Unauthorized Occupants) Act, 1971 was issued thereafter and hence, the

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W.P.(C) No.12722 of 2019

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attempt is only to mislead this Court. Finally, it is contended that that the auction is being conducted strictly in accordance with the Cantonment Boards Act and circular/instructions of the Government of India.

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I find merit in the contention that the

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petitioner has no right to challenge Ext.P8 while continuing in illegal occupation of the tenanted premises. The cause of action for challenging Ext.P8 would arise only if the petitioner had participated in the tender and was denied eligible reservation. The petitioner has no case that he had participated in the tender. As such, the challenge at the instance of a third party, that too in anticipation of denial of reservation to the participants, cannot be entertained. From the manner in which the reliefs are couched also, it is evident that the attempt is to continue in occupation of the shoprooms. Except the averment in the writ petition and the assertion by the

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W.P.(C) No.12722 of 2019

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learned Counsel for the petitioner, there is no material to even indicate that the auction is being conducted in violation of the Cantonment Boards Act or the applicable circulars/instructions. The submission that W.P.(C) No.11140 of 2018 was disposed of on 04.04.2018 is apparently wrong, since that writ petition is dismissed today by a separate judgment.

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For the aforementioned reasons, the writ petition is dismissed.

Sd/-

V.G.ARUN JUDGE

Scl/

W.P.(C) No.12722 of 2019

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APPENDIX OF WP(C) 12722/2019

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PETITIONER EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE IDENTITY CARD EXHIBIT P2 TRUE COPY OF THE RECEIPT DATED 1.12.17 EXHIBIT P3 TRUE COPY OF THE RECEIPT DATED 2.3.18 EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 26.10.17 IN WPC NO 14810/2017 EXHIBIT P5 TRUE COPY OF THE NOTICE DATED 28.12.2018 W.R.T. ROOM NO 19 EXHIBIT P6 TRUE COPY OF THE NOTICE DATED 28.12.2018 W.R.T.ROOM NO 23. EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 18.6.2018 EXHIBIT P8 TRUE COPY OF THE PUBLIC NOTICE DATED 27.2.2019 EXHIBIT P9 TRUE COPY OF THE RULES DATED 22.11.2002 EXHIBIT P10 TRUE COPY OF THE GUIDELINES DATED 21.5.1998 EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 4.12.2014 IN WPC NO 28929/2013. EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 5.10.2016

E.Prakashan v. Union of India

Case brief

What is this about?

What did the court decide?

E.Prakashan v. Union of India

Case brief

What is this about?

What did the court decide?

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