IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930 CRP.No. 688 of 2005() --------------------- CMA.8/2005 of 1ST ADDITIONAL DISTRICT COURT, KOZHIKODE .................... REVN. PETITIONER(S)/RESPONDENTS IN C.M.A.: --------------------- 1. UNION OF INDIA, REP. BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI. 2. THE DIVISIONAL RAILWAY MANAGER(WORKS), SOUTHERN RAILWAY, PALAKKAD. BY ADV. SRI.M.C.CHERIAN,SR.SC.,RAILWAYS RESPONDENT(S): APPELLANT IN CMA ------------------------------- P.M.MUHAMMED KOYA, S/O.LATE P.P.HASSANKOYA, DOOR NO. 11/298, M/S.P.P.ASSOCIATES, COURT ROAD, CALICUT-673 032. ADVS. SRI.C.KHALID FOR R1 SRI.N.GOPINATHA PANICKER FOR R1 SRI.R.O.MUHAMED SHEMEEM FOR R1 SRI.T.P.SAJID FOR R1 SRI.P.G.ANOOP NARAYANAN FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. -------------------------------------------- C.R.P. NO. 688 OF 2005 -------------------------------------------- Dated this the 12th day of December, 2008 O R D E R Union of India and the Divisional Railway Manager are the revision petitioners. This revision is directed against the judgment dated 5.3.2005 in C.M.A. No.8 of 2005 on the file of the I Additional District Court, Kozhikode 2. The dispute relates to the eviction of a commercial plot of 2026.75 sq.ft. of land near Calicut Railway station. The original licensee was one Khan Sahib K. Koya who is the grandfather of the present licensee. The premises was originally licensed in the year 1929. The licensee constructed a double storied building located in the railway plot and a portion in the adjoining land as a single unit where he started doing business in sanitary wares and P.V.C. pipes. The original licensee's son Hassan Koya continued to occupy the said plot as per Annexure A1 license agreement dated 21.1.1971. The agreement inter alia provides that the Railway is entitled to enhance the licence fee and the licensee is bound to pay the enhanced licence fee or vacate the premises if he is not willing C.R.P. NO.688/2005 2 to pay the enhanced licence fee in future. Accordingly, the licence fee of the plot in question was enhanced from Rs.1,252.25 to Rs.17,345.58 with effect from 1.4.1982. The agreement also provides for arbitration. 3. The licensee is aggrieved by the enhancement which, according to him, is highly excessive and exorbitant. License was terminated on 3.11.1982 for non payment of the revised licence fee. The order enhancing license fee was challenged before this Court in O.P. No.9267 of 1982. This Court as per Annexure A4 judgment dismissed the Original Petition without prejudice to the right of the petitioner to seek remedy by way of arbitration. After the dismissal of O.P. No.9267 of 1982, the licensee filed O.S. No.281 of 1986 before the II Additional Sub Court, Kozhikode under the provisions of the Arbitration Act, 1940 for appointment of an Arbitrator to adjudicate the issue. The civil court as per Annexure A5 judgment decreed the suit and appointed a retired District Judge as Arbitrator. 4. The main disputes referred for arbitration are as follows: i. Is the southern railway justified in enhancing the licence fee, in respect of 2025-75 Sq,. feet of and held by the petitioner, from Rs.1,252-25 to Rs.17, 345-58? C.R.P. NO.688/2005 3 ii. What is the rent payable by the petitioner to the Railway administration for 2025-75 Sq. feet of land? 5. Annexure A5 judgment was confirmed by this Court in M.F.A. No.820 of 1990. In the meanwhile, the licensee Hassan Koya died. The Arbitrator did not proceed with the matter of adjudicating the dispute since the legal heirs of the licensee did not effectively pursue the matter. During the pendency of the suit, the licensee had deposited an amount of Rs.1,04,073.50 for the period from 1.4.1981 to 31.3.1987 at the rate of Rs.17,345.58 per year. Thereafter no payment was made and as it stands, from 1.4.1987 arrears have to be paid for a period of more than 20 years as of now. In the circumstances, the Railways took steps for evicting the licensee by invoking the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. By Annexure A 10 order, the Estate Officer issued orders directing the licensee to vacate the land within 15 day from the date of publication of the order, failing which he is liable to be evicted from the said premises. It is this order that was challenged by the licensee in C.M.A. No.8 of 2005. The lower appellate court set aside the order passed by the Estate Officer and allowed the appeal. 6. Various contentions are raised by the learned counsel appearing for the revision petitioners. The legality and propriety of passing the C.R.P. NO.688/2005 4 impugned order is seriously challenged before me. During the course of argument, this Court suggested appointing another Arbitrator, a retired District Judge, for adjudicating the dispute. This Court also suggested that 50% of the entire arrears calculated at the rate of Rs.17,345.58 per year for the period from 1.4.1987 till date shall be paid within one month from today as a condition for referring the matter for adjudication by an Arbitrator for the second time. This suggestion was accepted by both sides. Therefore, this Court desist from examining the legality and propriety of the order under challenge. 7. In the circumstances, Sri. A. Narayanan Nair, retired District Judge is appointed as Arbitrator to adjudicate the disputes between the parties. The remuneration to the Arbitrator can be fixed by the parties in consultation with the Arbitrator and the same shall be met by both parties equally. In case there is any difficulty, the matter can be brought to the notice of this Court. The disputes for adjudication are as follows: i. Is the southern railway justified in enhancing the licence fee, in respect of 2025-75 Sq,. feet of and held by the petitioner, from Rs.1,252-25 to Rs.17, 345-58? ii. What is the rent payable by the petitioner to the Railway administration for 2025-75 Sq. feet of land? C.R.P. NO.688/2005 5 iii. Any other matter connected with the dispute in question. The parties shall serve a copy of the order to the Arbitrator within a period of two weeks from the date of receipt of a copy of of this order. The Arbitrator shall take a final decision within six months from the date of deposit of 50% arrears. The Civil Revision Petition is disposed of as above. (HARUN-UL-RASHID, JUDGE) sp/ C.R.P. NO.688/2005 6 HAURN-UL-RASHID, J. C.R.P. NO. 688/2005 O R D E R 12th December, 2008 C.R.P. NO.688/2005 7