IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 4TH JUNE 2008 / 14TH JYAISHTA 1930 CRP.No. 1246 of 2004(B) ----------------------- CMA.27/1998 of DISTRICT COURT, THALASSERY .................... REVN. PETITIONER: APPELLANT/RESPONDENT: --------------------------------------- 1. SMT.T. NAFEESA, D/O.LATE KUNHIMOIDEEN, AGED 42 YEARS, K.M. MANZIL, P.O. CHALAD, PALLIKUNNATH, CHALAD DESOM. 2. SMT.T. ASMABI, D/O. KUNHIMOIDEEN, AGED 40 YEARS, DO. DO. 3. SRI. T. ABDUL RASHEED, S/O. KUNHIMOIDEEN 35 YEARS, DO. DO. 4. SMT.T. NASEEMA, D/O. KUNHIMOIDEEN, 33 YEARS, DO. DO. 5. SMT.T. RASHEEDA, D/O. KUNHIMOIDEEN, DO. DO. BY ADV. SRI.A.MOHAMED MUSTAQUE SRI.KAUSER EDAPPAGATH RESPONDENTS: PETITIONER & RESPONDENT: ------------------------------------- 1. THE ESTATE OFFICER, SOUTHERN RAILWAY, DIVISIONAL OFFICE, WORKS BRANCH, PALAKKAD. 2. THE DIVISIONAL MANAGER, SOUTHERN RAILWAY, PALAKKAD DIVISION, PALAKKAD. 3. THE KANNUR MUNICIPALITY, REPRESENTED BY MUNICIPAL COMMISSIONER, KANNUR. BY ADV. SRI.M.C.CHERIAN,SR.SC.,RAILWAYS FOR R1 & 2 SRI.K.K.CHANDRAN PILLAI FOR R3 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. No. 3139/2004 IN C.R.P. NO. 1246 OF 2004 DISMISSED 04.06.2008 SD/- HARUN-UL-RASHID, JUDGE HARUN-UL-RASHID, J. ------------------------------------------ C.R.P No. 1246 of 2004 ------------------------------------------- Dated this the 4th day of June 2008 ORDER The revision petitioners 1 to 5 are the appellants in C.M.A. 27/1998 on the file of the District Judge Thalassery. By the impugned judgment under revision the appellate court confirmed the order dated 23.2.1998 of the Estate Officer of the Souther Railway Divisional Office, Palakkad in the proceedings directing the eviction of the revision petitioners from Bunk No. 2 which is allegedly installeld in the premises of the Kannur railway Station The Estate Officer passed Orders directing the revision petitioners to vacate the said premises in the proceedings initiated against them under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act 1971 . The revision petitioners are the legal heirs of one Kunhalima who was the licensee in respect of Bunk No. 2 belonging to Kannur Municipality. According to the revision petitioners their predecessor-in- interest was in occupation of the Bunk from the year 1970 onwards. It is also contended that the Licencee received a notice in the year 1989 to show cause why she should not be evicted from the site where the bunk is situated. Pursuant to the proceedings initiated the first respondent passed order on 29.7.1992 whereby the licencee was directed to vacate C.R.P No. 1246 of 2004 -2- the said premises within 15 days. The matter was taken up in appeal as C.M.A. 7/1994 . Prusuant to order passed by the lower appellate court the present order was passed by the Estate Officer which was confirmed by the lower apepllate court in C.M.A. No. 27/1998. It is contended by the southern Railway that the Kannur Municipality have constructed the Bunk No. 2 near to the Kannur Railway station by encroaching an area of 10 Sq. meters into the railway land. During the survey the encroachment was noticed by the Southern Railway and therefore eviction proceedings were initiated on the then licencee. Smt. Kunhalima. The Municipality issued notice to the revision petitioners stating that the Southern Railway wants to get the land evicted and therefore directed the revision petitioners to evict the property . The Estate Officer of the Souther Railway by the impugned order dated 23.2.1998 passed an order of eviction by resorting to the provisions of Public Premises ( Eviction of Unauthorised Occupants Act) 1971 . The Estate Officer on a perusal of the records found that the Bunk is located partly in the Municipal area and partly in the railwayy land. Admittedly the Bunk was constructed by the Municipality and the revision petitioners are the one time licencee for conducting the business in the bunk. The Estate Officer also noticed the facts that the licence period of the Bunk C.R.P No. 1246 of 2004 -3- has expired on 31.3.1994. and now the occupation of the Bunk itself is unauthorised. The Railway issued notice to the Municipality to direct the revision petitioners to evict the premises and to hand over the possession of the railway rand to the Southern Railway. In the meanwhile the revision petitioners filed O.S. 159/1996 before the Munsiff Court Kannur. The Munsiff Court disposed of the said suit that the Estate Officer of the Southern Railway is at liberty to initiate necessary action under Public Premises ( Eviction of unauthorised occupants ) Act 1971 against the revision petitioners who are the plaintiffs in that suit. In that suit filed by the revision petitioners, whether the action of the respondents for eviction of the plaintiff is illegal or not whether an area of an extent of 10Sq. meters of railway land was encroached while constructing the Bunk by the Municipality whether the 3rd defendant (Estate Officer) is competent to initiate eviction proceeding as per the provisions of law and a number of other issues were formulated and decided by the Munsiff Court. At the time of final hearing before the Estate Officer the counsel for the revision petitioners admitted that they do not possess any title deed or documents to substantiate their ownership or to legalise the occupation of the Bunk. The Estate Officer found that in such circumstances no valid grounds are made out to substantiate or to justify the unauthorised occupation of the public premises. The Estate officer C.R.P No. 1246 of 2004 -4- also noted the submission made on behalf o the Muncipal Engineer tha the has no objection to evict the unauthorised encroachers in the area under dispute. The Municipality also submitted a detailed plan before the Estate Officer The said plan shows that the area under dispute is in the Railway premises and the revision petitioners are unauthorised occupants of the same. On the factual position as stated above the Estate Officer rightly found that ta portion of the area covered by the location of the Bunk belongs to the Southern railway and therefore the revision petitioners are in unauthorised occupation The revision petitioners appealed to the District Court Thalassery . The appellate court also examined the file and the two sketches concerning the land in question. The sketches produced will go to show that the Bunk has been constructed encroaching a portion of the railway land. The appellate court taken note of all the findings entered by the Munsiff Court in O.S. 159/1996 and held that an extent of 10 sq. maters of railway land has been encroached by the Municipality while constructing the Bunk in question. The learned Munsiff rejected the contention of the revision petitioners that the railway has no right to initiate proceedings for eviction of the occupants in accordance with the provision of the said Act. The appellate court also noted the findings of the Munsiff Court which has become final that the Bunk is situated by 10 Sq. meters into the C.R.P No. 1246 of 2004 -5- railway land . This Civil Revision petition is filed by the occupants challenging orders passed by the Estate Officer . The finding entered by the Estate Officer and the District Judge Thalassery are based on sufficient materials . The Municipality also has no case that the entire property wherein the bunk is situated belongs to it. They have also admitted that a portion of the Bunk which is encroached into the railway property is an unauthorised and illegal Act. The occupants of the Bunk are continuing their business even now long after the expiry of the license issued to them. Having invited a decision against them in the Civil suit filed by them they have no locus standi before this Court. They are not entitled to continue in the premises in spite of the fact recorded by the railway authorities that a portion of the property is unauthorisedly encroached by the Municipality. The revision petitioners have produced true copies several documents with a petition for receiving the additional documents ( I.A. No. 1182 of 2008). The documents relates to the period from the year 1989 to 1993 and 1996 etc. I find no reason to receive those documents in evidence at this distance of time. The revision petitioners have every opportunity to produce whatever documents before the Estate Officer or before the appellate Court or before this Court. There is no bonafides in submitting these records during the course of final hearing. Therefore this C.R.P No. 1246 of 2004 -6- petition to receive the additional documents is dismissed. I find no grounds to interfere with the orders under challenge. This Civil Revision petition is without merit and it is accordingly dismissed. There will be no order as to costs. Considering the fact that revision petitioners are in occupation of the licensed bunk right from 1970 onwards, I direct the Municipality to consider the case of the revision petitioners sympathetically and take a lenient decision regarding shifting of the Bunk to any other convenient place and also to renew the expired licence. HARUN-UL-RASHID, JUDGE es