Partly allowed

N.Vasudevan, v. the State of Kerala

Kerala HC22 Mar 2022WP(C)/6267/2022

Case brief

AI extract

What is this about?

The High Court set aside an order denying assignment to a tenant and declared eviction notices illegal when the petitioner was not adjudicated an encroacher. The matter was remanded for reconsideration under Rule 3 of the Assignment Rules.

What did the court decide?

Order Ext.P10 set aside for petitioner; Petitioner restored to possession; Action on 'Form C' notice declared illegal; Matter remanded to Government for reconsideration under Rule 3.

N.Vasudevan, Vs the State of Kerala — Landlord and Tenant | 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 DEVAN RAMACHANDRAN

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TUESDAY, THE 22^ND DAY OF MARCH 2022 / 1ST CHAITHRA, 1944

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WP(C) NO. 6267 OF 2022

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PETITIONER:

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N.VASUDEVAN, AGED 63 YEARS S/O. NARAYANAN, ROOM NO.7, THE KERALA HINDU MISSION BUILDING, STATUE P.O., THIRUVANANTHAPURAM-695001.

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BY ADVS. SUMAN CHAKRAVARTHY K.R.RIJA

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RESPONDENTS:

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1 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE AND LAND SURVEY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2 THE DISTRICT COLLECTOR, COLLECTORATE, THIRUVANANTHAPURAM-695043.

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3 THE TAHSILDAR (LR), COLLECTORATE, THIRUVANANTHAPURAM -695043.

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BY ADVS. ADVOCATE GENERAL OFFICE KERALA SHRI.K.P.JAYACHANDRAN, ADDL. ADVOCATE GENERAL()

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OTHER PRESENT:

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SRI. JAFAR KHAN SR.G.P.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

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I propose to be brief in this judgment because, shorn of

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all unnecessary details, the facts are in a very narrow

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compas s.

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The petitioner admits to have been a tenant under an entity called “Kerala Hindu Mission” (henceforth be referred to as “Hindu Mission” for short), w ho had taken on lease the property involved in this case for the purpose of construction of a building from the Government as early as in the year 1936. He admits that the period of lease expired and that the Government resumed possession of the property, along with the building constructed thereon, from the afore mentioned “Hindu Mission”. He, however, asserts that he is entitled to an assignment or lease of that portion of the building which he is occupying, on his own strength. He says that he, therefore, preferred Ext.P6 application for such purpose and that when it

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was not considered, he obtained Ext.P9 judgment in W.P. (C)No.6879 of 2020, wherein, a learned judge of this Court directed the Government to take an apposite decision thereon. He submits that, thereafter, Ext.P10 order was issued, however, holding that he is not entitled to assignment as prayed for, solely because he was not the original lessee; and consequently that, under Rule 5 of the Assignment of Land within Municipal and Corporation Areas Rules, 1995 (hereinafter referred to as the “Rules” for short), no such benefit can be offered to him.

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The petitioner contends that Ext.P10 is illegal,

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because his application for assignment ought to have been considered under Rule 3 of the “Rules”.

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Sri.Suman Chakravarthy – learned counsel appearing for the petitioner, further explained that, consequent to Ext.P10, proceedings were taken by the competent Authority

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to evict his client and other tenants from the building and that notices under the Kerala Land Conservancy Act (hereinafter referred to as the “LC Act” for short) are stated to have been issued to them. He says that, however, his client was never served with any such notice and that, rightly when Ext.P11(1) final order, was settled under Section 12 of the “LC Act”, his name was not included in the list of “encroachers”.

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Sri.Suman Chakravarthy then alleged that, in spite of this, his client was issued with a notice, under Rule C of the Kerala Land Conservancy Rules, 1958 (hereinafter referred to as the “LC Rules” for short) which has been produced as part of Ext.P11 and shown as Ext.P11(4) [hereinafter referred to as the “L.C. Notice” for short], thus constraining him to approach this Court, seeking that all action consequent there to be interdicted and the Government directed to decide his application for assignment afresh. He, however, added that

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even though this writ petition was filed on 23/02/2022, it could be considered by this Court only on 24/02/2022, by which time, hast y ac tion was taken to evict his client from the property and that, as of today, he has been forced to remain outside. The learned counsel, therefore, prayed that Ext.P10 be set aside and all action consequent to the “L.C.Notice” be declared as illegal; thus directing the competent Authority to reconsider his client's application for assignment in terms of law, without any further delay.

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The learned Senior Government Pleader – Sr i.Jaffar

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Khan, opposed the afore plea with equal vehemence, edificed on various grounds, including that petitioner cannot seek any benefit under the “Rules”. He then explained that noninclusion of the petitioner's name in Ext.P11 final order under Section 12 of the “L.C.Notice” is inconsequential, because he has been issued with a “Form C” notice, namely the

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“L.C.Notice” and, therefore, that the steps taken under the “LC Act” cannot be assailed by him.

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When this matter was heard on an earlier occasion, a doubt arose in the mind of this Court whether the provisions of the “LC Act” would apply in the conspectus of the peculiar facts presented in this case, even if the petitioner is found liable to be evicted from the building in question. I, therefore, requested Sri.G.Sreekumar (Chelur), to assist this Court as an A micus Curiae and this was indited by me in the order dated 17/03/2022.

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The learned Amicus Curiae – Sri.G.Sreekumar (Chelur), today made extensive and incisive submissions on various aspects, into which I do not intend to enter in detail, on account of the lim ited purlieus within which I am proposing to deliver judgment; but one among his submissions was that the “LC Act” will not be attracted and only the provisions of

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the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 would apply, since what is sought to be evicted from is not a land but a building.

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On the validity of the “L.C.Notice”, the learned A micus Curiae was firm in his stand that a notice in “Form C” of the “Rules” could not have been issued to the petitioner, without having been found to be an encroacher through an enquiry under the ambit of Section 12 of the “LC Act” – even if such Act can be construed to be applicable – and, therefore, that all action pursuant to it, as far as the petitioner is concerned, will have to be found to be without legs to stand on. Pertinently, however, he also expressed a doubt whether petitioner can apply for assignment of a portion of the building, which he was earlier occupying, under the provisions of the “Rules”.

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In an apparent reaction to the afore submissions of

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the learned Amicus Curiae, Sri.Jafar Khan – learned Senior Government Pleader argued that the petitioner cannot be allowed to make any submissions touching upon the actions concluding in his eviction or against the “L.C.Notice” because no such prayers have been made in this writ petition.

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On hearing the learned Senior Government Pleader as afore, I put a query to him if not prayer No.4 in this writ petition would suffice because, at the time when it was filed on 23/02/2022, no action to evict the petitioner, as threatened in the “L.C.Notice” had been completed. This question was posed because, when this case was considered on 24/02/2022, I had, after hearing both sides, recorded that eviction of the petitioner from the building was done at 10.30 a.m. on that day, through the following order:

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Shri.Jaffar Khan, learned Senior Government Pleader, seeks time to obtain instructions. He, however, added that the building in question has already been taken possession of at about 10.30 a.m. today or before.

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WP(C) NO. 6267 OF 2022

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Shri.Suman Chakravarty, learned counsel for the petitioner, submits that the possession was taken to defeat this writ petition and nothing else and on the respondents knowing that it has been moved before this Court.

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I, therefore, adjourn this matter to be called on 28.02.2022 for the respondents to produce the Mahazar on record. The respondents will also file their counter pleadings by then.

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It is without doubt that even if the possession of the property has been taken over, it will be subject to further orders from this Court.

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Presumably, being faced with the afore query,

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Sri.Jaffar Khan submitted that he will not stand in the way of

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this Court considering the challenge to eviction, consequent to the “L.C.Notice”, on its merits.

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I thus proceed to dispose of this writ petition on the

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necessary and germane aspects requisite for answering the contentions of the rival parties.

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As I have already noticed above, the petitioner

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admits to be a tenant under the “Hindu Mission”, who had been granted lease of the property in question for 99 years by the

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Government, decades ago. It is undisputed that steps were taken to evict “Hindu Mission”, which culminated in certain orders against them, which remain unassailed. Therefore, going by Rule 12 of the “Rules”, the “Hindu Mission” had an option of removing the building, but since they chose to do so, it can only be assumed, at least prima facie , that it is now vested with the Government. Therefore, the Government certainly obtain rights to evict the petitioner, however, only in terms of law.

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The question as to which statute will apply in such process is not being answered by me, though the learned Amicus Curiae has made elaborate submissions on this aspect, as I have already indicated above.

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That said, the petitioner seeks assignment of a portion of the building in question, but which has been rejected through Ext.P10, being composite order relating to the “Hindu

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Mission” also. The only reason stated therein for rejection of the petitioner's request is that he does not fall within the ambit of Rule 5 thereof, because he was not a lessee under the Government. However, the petitioner’s specific contention that he must be assigned the building, or the land on which it is situated, under Rule 3 of the said “Rules”, has not been considered or even touched upon.

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To make matters worse, it is evident that, in Ext.P11, which is the final order under Section 12 of the “LC Act”, the petitioner has not been found to be an encroacher. In spite of this, he has been issued with a “Form C” notice. Indubitably, therefore, the “L.C.Notice” cannot find my favour, nor can any action taken pursuant thereto.

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Resultantly and for the reasons above, I am certain that the entire matter will require to be reconsidered by the Government in terms of law and that the petitioner will have to

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be restored possession of the building, as he was enjoying, admittedly, at the time when this writ petition was filed.

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Thus, this writ petition is ordered with the following directions:

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(a) Ext.P10 is set aside to the extent to which it relates to the petitioner, but confirming it as regards “Hindu Mission”; with a consequential direction to the Government to reconsider the application for assignment of the petitioner, adverting to his contentions based on Rule 3 of the “Rules”. This shall be done, after affording the petitioner an opportunity of being heard and the resultant order communicated to him without any avoidable delay.

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(b) As a corollary to the conceded position that the petitioner's name is not included in Ext.P11 final order issued under Section 12 of the “LC Act”, it is declared that all action

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pursuant to the “L.C.Notice” (produced as part of Ext.P11 on its page No.4), as far as it relates to the petitioner, is illegal; and resultantly he shall be put back in possession of the building in question; however, subject to the right of the competent Authority to proceed against it appositely, following due procedure, under the applicable Statutes and Rules.

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The above being so ordered, I deem it necessary to clarify that the question whether petitioner is entitled to assignment or lease; and which are the statutes that would become applicable in the afore ordered exercise, have not been considered by this Court or dealt with affirmatively and that they are all left open to be appositely considered by the competent Authorities as per law.

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I place on record the deepest appreciation of this Court for Sri.G.Sreekumar (Chelur), learned Amicus Curiae , without

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whose meticulous assistance, it could not have been possible to dispose of this matter with such ease.

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Sd/-

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DEVAN RAMACHANDRAN JUDGE

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ANB

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WP(C) NO. 6267 OF 2022

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APPENDIX OF WP(C) 6267/2022

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PETITIONER EXHIBITS

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Exhibit P1	A TRUE COPY OF THE CERTIFICATE OF PERMANENT
	REGISTRATION ISSUED BY THE DEPARTMENT OF INDUSTRIES AND COMMERCE, GOVERNMENT OF KERALA DATED 16/02/1990.
Exhibit P2	A TRUE COPY OF THE REGISTRATION CERTIFICATE ISSUED BY THE REGISTRATION OF SOCIETIES DATED 20/10/2017.
Exhibit P3	A TRUE COPY OF THE ORDER DATED 25/01/1986 ISSUED BY ACCOMMODATION CONTROLLER, THIRUVANANTHAPURAM.
Exhibit P4	A TRUE COPY OF THE ORDER DATED 10/03/2005 ISSUED BY THE ACCOMMODATION CONTROLLER, THIRUVANANTHAPURAM.
Exhibit P5	A TRUE COPY OF THE ORDER DATED 04/08/2006 BY THE 2ND RESPONDENT.
Exhibit P6	A TRUE COPY OF THE APPLICATION FOR ASSIGNMENT BY THE PETITIONER DATED 16/11/2017.
Exhibit P7	A TRUE COPY OF THE REPORT FILED BY THE VILLAGE OFFICER, VANCHIYOOR VILLAGE DATED 05/06/2012.
Exhibit P8	A TRUE COPY OF THE REPORT ALONG WITH
	LOCATION SKETCH FILED BY THE VILLAGE
	OFFICER, VANCHIYOOR VILLAGE DATED 20/01/2018.
Exhibit P9	A TRUE COPY OF THE JUDGMENT DATED 06/03/2020 IN WPC NO.6879/2020.
Exhibit P10	A TRUE COPY OF THE ORDER DATED 23/09/2021

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WP(C) NO. 6267 OF 2022

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		BY THE 1ST RESPONDENT.
Exhibit	P11	A TRUE COPY OF T 27/12/2021 BY THE 3RD	HE PROCEEDINGS DATED RESPONDENT.
Exhibit	P13	A TRUE COPY OF THE 4/06/2020 SUBMITTED RESPONDENT.	REPRESENTATION DATED BEFORE THE 1ST
Exhibit	P14	A TRUE COPY OF THE L 11.2.2019	AND TAX RECEIPT DATED
RESPONDE	NT EXHIBITS
Exhibit	R3(A)	THE TRUE COPY OF G DATED 27.07.2011	O (Ms)No.280/2011/RD
Exhibit	R3(B)	THE TRUE COPY OF 24.02.2022	THE MAHAZAR DATED
Exhibit	R3(C)	COPY OF RELEVANT PAGE	OF BTR
Exhibit	R3(D)	COPY OF RELEVANT REGISTER	PAGE OF FAIR VALUE

N.Vasudevan, v. the State of Kerala

Case brief

What is this about?

What did the court decide?

N.Vasudevan, v. the State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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