IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 18TH FEBRUARY 2011 / 29TH MAGHA 1932 SA.No. 26 of 2002() ------------------------ OS.68/1997 of ADDL. SUB COURT, KOCHI AS.71/2001 of VI ADDL.DISTRICT COURT, ERNAKULAM .................... APPELLANT(S): 1ST RESPONDENT/PLAINTIFF ------------------------------------------------------ P.JEROME, S/O.LATE PETER PETHRU, RESIDING AT PUTHENPURA HOUSE, PALLURUTHY VADAKKUM MURI, RAMESWARAM VILLAGE, COCHIN TALUK, KOCHI-682 006. BY ADV. SRI.MURALI PURUSHOTHAMAN RESPONDENT(S): APPELLANTS & RESPONDENTS 2 & 3/DEFENDANTS --------------------------------------------------------------------------------- 1. CORPORATION OF COCHIN,REPRESENTED BY SECRETARY, CORPORATION OFFICE,ERNAKULAM, COCHIN-682 011. 2. DEPUTY SECRETARY, CORPORATION OF COCHIN, ZONAL OFFICE, MATANCHERRY, COCHIN-682 006. 3. ASSISTANT EXECUTIVE ENGINEER,CORPORATION OF COCHIN, ZONAL OFFICE,PALLURUTHY, COCHIN-682 006. 4. MRS. SUNITHA SELVAN, COUNCILLOR, DIVISION NO.19, PALLURUTHY,COCHIN-682 006. 5. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR,CIVIL STATION, KAKKANAD, ERNAKULAM,COCHIN-682 030. 6. SPECIAL TAHSILDAR (LA),CORPORATION OF COCHIN, VYTTILA,KOCHI-682 019. R5 & R6 BY GOVT. PLEADER SRI.JAYAKRISHNAN P.R. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/02/2011, ALONG WITH SA NO. 346 OF 2002 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs ORDER ON C.M.P. NO.60/2002 IN S.A. NO.26/2002 DISMISSED 18/02/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A. TO JUDGE svs P.BHAVADASAN, J. ---------------------------- S.A.Nos. 26 and 346 of 2002 ------------------------------------- Dated this the 18th day of February, 2011 JUDGMENT The plaintiff in O.S.No.68/1997 before the Additional Sub-Court, Kochi is the appellant. The parties and facts are hereinafter referred to as available before the trial court. 2. The suit was one for recovery of plaint C schedule property and other reliefs of compensation injunction etc. It appears that a portion of the property belonging to the plaintiff was acquired by the State for the purpose of widening the road. The plaintiff would say that after leaving the portion so acquired, he constructed a compound wall in his property. When the officials of the Corporation tried to pull down his compound wall, he approached this court in O.P. 2589/1997 pointing out the high handed action of the officials of the Corporation. This court disposed of the original petition directing the Municipal Corporation to take steps in accordance with law if a action of the petitioner is contrary to law. Further allegation is that the plaintiff was served with Ext.A5 notice, informing him that officials will visit the site for the purpose measurement of the property. Without measuring the property, it is stated that they again tried to demolish the compound wall which was resisted by the plaintiff. However on the next day, it is alleged that the S.A.Nos. 26 and 346 of 2002 2 defendants came with the contingent of police and pulled down the structure and trespassed into a portion of the property belonging to the plaintiff shown as C schedule property. Hence the suit. 3. The defendants resisted the suit. They pointed out that the plaintiff had encroached into a portion of the acquired land and he had no right to do so. It is also contended that the suit is not maintainable for want of notice under Sections 544 and 565 of the Kerala Municipality Act. 4. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 to 4 and documents marked as Exts.A1 to A10 from the side of the plaintiff. The defendants examined DWs 1 to 5 and had Exts. B1 and B2 marked from the side of the defendant. Exts.C1 to C5 are the commissioner's report and plan. On an analysis of the evidence in the case, the trial court found that the grievance of the plaintiff is correct and granted a decree in his favour. It was decided that if the defendants failed to pay compensation within six months from the date of decree, the plaintiff can seek and obtain recovery of possession of plaint C schedule property on the strength of title, which is shown in blue shade in Ext.C5 plan. Aggrieved by the decree of the trial court both the plaintiff as well as the defendants went up in appeal. The S.A.Nos. 26 and 346 of 2002 3 defendants filed A.S.No.71/2001 and plaintiff filed A.S.No.84/2001 against the portion of the decrees with which they were aggrieved. The lower appellate court allowed A.S.No.71/2001 dismissing the suit and also dismissed the appeal filed by the plaintiff. Hence the second appeal. 5. Notice is seen issued on the following substantial questions of law. 1. Whether the suit filed by the plaintiff can be said to be not maintainable for want of notice under Section 544 of the Kerala Municipality Act ? 2. What is the legal effect of non-issuance of notice under Section 544 of the Kerala Municipality Act when the relief claimed in the suit could brook no delay ? 3. Whether constructive Notice of the proposed litigation amounts to substantial compliance with Section 544 of the Kerala Municipality Act ? 4. Whether the provisions of Section 544 of the Kerala Municipality Act applies in respect of suits instituted with regard to any act done not in pursuance of the provisions contained under the Kerala Municipality Act, or Rules framed there under ? 5. Whether a suit which was concurrently found to be just, proper and equitable be dismissed on technical pleas like want of notice under Section 544 of the Kerala Municipality Act. 6. The courts below, having found that the plaintiff has right, title and possession over the plaint schedule properties, whether the first appellate court was right in holding that the suit is not maintainable for want of notice under Section 544 of the Kerala Municipality Act ? 7. Since the plaint C schedule property was found to have been encroached upon by the defendants by both the courts below, whether notice under Section 544 is mandatory before S.A.Nos. 26 and 346 of 2002 4 institution of the Suit ? 6. The learned counsel appearing for the appellant contended that the finding of the lower appellate court that Section 544 of the Kerala Municipality Act is attracted cannot be sustained in law. The learned counsel drew attention of this court to the concurrent findings of the courts below that the act committed by the officials of the corporation was without authority of law and was against the Rules and Regulations. It is contended that the lower appellate court was not justified in dismissing the suit. In support of this plea that no notice is necessary under Section 544 of the Kerala Municipality Act the learned counsel relied on the decisions reported in (2004(1) KLT 751) Mammadhan Kutty V.Pallivasal Grama Panchayath and (AIR 1972 SC 2510) Devi Singh V. Municipal Corporation, Hyderabad. The learned counsel also contended that there are various provisions under the Municipality Act which enable the Corporation to take such steps as are necessary to get unauthorised construction removed after following the prescribed procedure. In the case on hand it is contended that none of those procedure had been resorted to and the action was totally illegal. 7. The learned counsel appearing for the respondents 3 to 5 on the other hand contended that whatever may be the grievance of S.A.Nos. 26 and 346 of 2002 5 the plaintiff the acts done by the officials were in furtherance of orders issued to them by the superior officer and that such action for squarely within the Section 544 of the Kerala Municipality Act. The learned counsel also pointed out that no interference is called for with the judgment of the appellate court. 8. Both the courts below have considered in detail the acts committed by the officials for the corporation. They have come to a definite conclusion that those acts do not have the sanction of law and it was clearly illegal. Both the courts below have found the Municipal Corporation has encroached into a portion of the property owned and possessed by the plaintiff and also pulled down the compound wall. These findings have based on evidence in the case and being questions of fact no interference is called for in the second appeal. 9. Coming to the legal point raised regarding the notice it needs consideration. Section 544 of the Kerala Municipality Act reads as follows: 544. Institution of suits against municipal authorities, officers and other employees.- 1. No suit shall be instituted against a Municipality or any Municipal authority or any officer or other employee of a Municipality or against any person acting under the order or direction of a Municipal Authority or any officer or employee of a Municipality in respect of any act done or purported to have been done, in pursuance of this Act or any rule, regulation or bye-law made thereunder until the expiration of two months after notice in wiring to the Municipality and, in the case of such officer, employee or person, unless notice in writing has also been delivered to his in person or at his office or place of residence, and unless such notice states explicity the cause of action, the nature of the relief sought, the S.A.Nos. 26 and 346 of 2002 6 amount of compensation, claimed and the name and the place of residence of the intending plaintiff, and unless the plaint contains a statement that such notice has been so delivered. 2. Nothing in sub-section (1) shall be deemed to apply to suit in which the only relief claimed is an injunction which object would be defeated by the giving of the notice or the postponement of the institution of the suit. 3. Every such suit shall be instituted within six month after the date on which the cause of action arose or in cases of continuing injury or damage, during such continuance or within six months after the causing thereof. 4. Where any person to whom any notice is given under sub-section (1), tenders amends to the plaintiff before the suit is instituted, and if the plaintiff does not recover in any such action more than the amount so tendered he shall not recover any costs incurred after such tender by the person to whom such notice has been given and the defendant shall be entitled to costs as from the date of tender. 5. Where the defendant in any such suit is the Chairperson, the Secretary, an officer or other employee of a Municipality, payment of the sum, or any part thereof, payable by him in or in consequence of the suit, whether in respect of costs, charges, expenses, compensation for damages or otherwise, may be made with the sanction of the Council, from the municipal fund. 10. The learned counsel for the appellant relied on the decision reported in (2004(1) KLT 751) Mammadhan Kutty V.Pallivasal Grama Panchayath held as follows: “The petitioner has approached this Court, feeling aggrieved by the steps taken by respondents 1 to 3 to encroach into his property, which is covered by Ext.P1 decree, for erecting a fish and meat stall. Because of the provisions contained in S.249 of the Kerala Panchayat Raj Act, the Civil Courts do not entertain suits of any nature against the Panchayat, unless one month’s notice is given and the period of notice is over. If the allegations of the petitioner are correct, the said bar will not affect the power of the Civil Court to entertain a suit, if any, filed by the petitioner against the encroachment by the respondents S.A.Nos. 26 and 346 of 2002 7 into his property. None of the provisions of the Act enables the Panchayat or its Officers to encroach into the property of third parties. So, the alleged actions of the respondents in this regard are plainly ultra vires. Ultra vires actions are not protected by any exclusionary clause. See the decision of the Apex Court in Dhulabhai v. State of Madhya Pradesh (AIR 1969 SC 78) and also the decision in Mafatlal Industries v. Union of India ((1997) 5 SCC 536). In view of the above position, the petitioner is entitled to move the Civil Court for appropriate reliefs. Accordingly, the Original Petition is dismissed without prejudice to the contentions of the petitioner.” 11. The learned counsel for the appellant also relied on the decision reported in (AIR 1972 SC 2510) Devi Singh V. Municipal Corporation, Hyderabad held as follows: “The question whether a notice under the aforesaid Section was necessary has to be decided on the averments made. It was never the case of the plaintiff that the defendant Corporation was acting or purported to act under the provisions of the act. The dispute raised related to the ownership of the property as also its possession. We have not been shown any provision in the Corporation Act by which the Corporation or its officers were entitled to either take possession of another person's property or retain its possession or dispossess a person who is already in possession without having recourse to the ordinary remedies under the law. We are wholly unable to understand how S. 56 of the Corporation Act could be of any avail to the Corporation in the matter of notice under Section 447 of the Act. The whole controversy between the parties centred on the question whether the Bazaar was the property of the plaintiff and was in his possession at the time of the institution of the suit. That had nothing to do with any act done or purported to be done in pursuance of execution or intended execution of any provision of the Corporation Act. The learned counsel for the Corporation has not been able to show how the suit as laid and framed attracted the applicability of S. 447 of the Corporation Act. We would, accordingly, hold that under the aforesaid Section no notice was necessary before the institution of the suit.” S.A.Nos. 26 and 346 of 2002 8 12. One may here recall the sequence of events in the case. When the officials initially attempted to pulled down the compound wall, the plaintiff approached this court by way of filing Original Petition and obtained an order to the effect that the Corporation shall take steps in accordance with law. Thereafter, Ext.A5 notice was issued informing the plaintiff that the officials would come to the spot for measuring the property and he has to be present with the necessary documents. The grievance of the plaintiff is that without measuring and ascertaining whether the plaintiff had encroached into any portion of the acquired land officials of the corporation demolished the compound wall and encroached into a portion of the property. Both the courts below have already found this to be true. As rightly pointed out by the learned counsel for the appellant there are elaborate provisions in the Municipalities Act empowering the removal of encroachment and unauthorised constructions. As of now, there is no evidence to show that any of the procedure have been followed in the case on hand. 13. Under these circumstances, it is extremely difficult to accept the contentions of the learned counsel for the respondent that official did the acts with all bonafides and that there was no oblique S.A.Nos. 26 and 346 of 2002 9 motive. Being a high handed and patently illegal act, as noticed in the decisions referred to the above acts, they cannot get the protection of the Section 544 of the Kerala Municipalities Act. The lower appellant was not justified in holding that the Section 544 of the Municipalities Act applied. The judgment and decree of the lower appellate court cannot be allowed to stand. In the result, these Second Appeals are allowed. The judgment and decree of the lower appellate court are set aside and decree of the trial court is restored and also granting a relief of recovery of possession of the plaint schedule property to the plaintiff as per trial court decree. If it is not possible to recover that property adequate compensation on the basis of acquisition shall be paid in accordance with law. P.BHAVADASAN, JUDGE. ln