IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 24TH MARCH 2009 / 3RD CHAITHRA 1931 WP(C).No. 24598 of 2007(C) ------------------------------------- PETITIONER(S): ----------------------- 1. P. KOYU, S/O. PANKAN, PUTHENTHARA, CHATHAMANGALAM P.O., NEMMARA. 2. P. INDIRA, W/O. P.KOYU, MOOLAYIL HOUSE, H.NO.431, AYALUR P.O., CHITTUR TALUK, PALAKKAD, NOW RESIDING AT CHATHAMANGALAM, NEMMARA VILLAGE, CHITTUR TALUK. BY ADV.MR.H.BADARUDDIN RESPONDENT(S): ------------------------- 1. THE ASSISTANT ENGINEER, ROAD SECTIONS (PWD), NEMMARA, PALAKKAD DIST. 2. THE GRAMA PANCHAYAT, NEMMARA, PALAKKAD DISTRICT, REP. BY ITS SECRETARY. 3. THE BLOCK PANCHAYAT, NEMMARA, PALAKKAD DISTRICT, REP. BY ITS SECRETARY. 4. THE DISTRICT MEDICAL OFFICER, PALAKKAD. 5. THE SUPERINTENDENT, GOVERNMENT HOSPITAL, NEMMARA. 6. THE MALABAR REGIONAL CO-OPERATIVE MILK PRODUCERS UNION LIMITED, PALAKKAD DIARY, KALLEPPULLY, PALAKKAD, REPRESENTED BY ITS MANAGER. 7. THE STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, PALAKKAD. 8. THE TAHSILDAR, CHITTUR TALUK. 9. THE VILLAGE OFFICER, NEMMARA. BY ADVS.MR . K.ANAND (A.201) SMT.LATHA KRISHNAN SRI.K.K.CHANDRAN PILLAI FOR R2 SRI.A.S.SAJUSH PAUL FOR R2 MR.B.S.KRISHNAN, SENIOR ADVOCATE FOR R6 SR GOVERNMENT PLEADER M.R.SABU FOR R1,4,5,7 & 8 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.24598/2007 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE ORDER OF APPOINTMENT DT. 17.9.91 IN FAVOUR OF THE IST PETITIONER. P2:- COPY OF THE APPOINTMENT ORDER APPOINTING THE 2ND PETITIONER AS THE DEALER OF MILMA DT. P3:- COPY OF THE DIRECTION LETTER DT. 11.10.02 ISSUED BY THE 6TH RESPONDENT TO THE IST RESPONDENT. P4 TO P4(e):- COPIES OF THE RECEIPTS FOR PAYMENT OF THE LICENSE AND ITS RENEAL FEE FROM THE YEAR 1995 ONWARDS. P5:- COPY OF THE JUDGMENT OF HONOURABLE HIGH COURT DT. 21.10.02 IN OP. NO.30225/02. P6:- COPY OF THE MEMO DT. 22.5.07 ISSEUD BY THE 9TH RESPONDENT TO THE IST PETITIONER. TRUE COPY P.S. TO JUDGE TSS P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) No. 24598 OF 2007 ......................................................................... Dated this the 24th March, 2009 J U D G M E N T The petitioners are aggrieved by the alleged atrocious action being pursued by the departmental authorities in evicting the petitioners and preventing them from running the Milma booth in front of the Government hospital, without complying with the directions contained in Ext.P5 judgment. 2. The immediate cause of action, according to the learned counsel for the petitioners, is that instead of passing appropriate orders by the concerned D.M.O., as to the running of a Milma booth by the petitioners, as undertaken before this court and as taken note of in Ext.P5 judgment, the 9th respondent has issued Ext.P6 memo directing the petitioners to vacate and surrender the premises, which is a road 'puramboke' where the Milma booth is now being run by the petitioners. The petitioners submit that the agency to run the Milma booth was granted to W.P.(C) No. 24598 OF 2007 2 them by the 6th respondent as per Exts.P1 and P2 proceedings. 3. As admitted by the petitioners in the opening paragraph of the Writ Petition, the Milma booth is located in a 'puramboke' situated just in front of the Government hospital. According to the petitioners, there was an earlier attempt from the part of the P.W.D., Panchayat and Revenue authorities to evict them from the said place. The 6th respondent, referring to the Government Order G.O.No.12164/D3/2002/PWD dated 11.10.2002, had requested the first respondent vide Ext. P3, to relocate the Milma booth near the Government hospital , Nemmara, if at all eviction was inevitable to facilitate road widening (placing reliance on the specific stipulation in the said Government Order to provide for alternate space). When the request made by the petitioners and the 6th respondent was not acceded to, the petitioners had approached this court by filing O.P.No. 30225 of 2002, which was disposed of as per Ext.P5 judgment recording the submission made by the Government Pleader that the D.M.O.(4th respondent ) would consider the claim and appropriate orders would be passed within one month. Learned counsel for W.P.(C) No. 24598 OF 2007 3 the petitioners submits that no orders have been passed by the D.M.O. as undertaken before this Court, without which the respondents are not justified in proceeding with the steps for eviction. 4. The learned Senior Government Pleader, referring to the counter affidavit filed by the 8th respondent, submits that the premises occupied by the petitioners are admittedly part of the road 'puramboke' and appropriate steps are being taken by the 9th respondent to evict the encroachers from the Government 'puramboke' land in compliance with the directions contained in the Government Circular LR.K3-22957/07 dated 17.05.2007. It is further stated that the eviction has been kept in abeyance, in compliance with the interim order passed by this Court. However, it is to be noted that no counter affidavit has been filed by the departmental authorities or the State Government and nothing has been brought to light as to the scope of the Government Order referred to in Ext.P3; the circumstances under which alternate space is intended to be offered to the evictees; the burden cast upon the authorities to provide W.P.(C) No. 24598 OF 2007 4 alternate space in this regard and also as to whether the D.M.O. of the hospital was bound to provide such alternate space particularly when the Milma booth run by the petitioners was admittedly situated on the road 'puramboke' and not within the premises of the Government hospital. Nothing is reflected even in the counter affidavit filed by the 8th respondent as to the subsequent events, after passing Ext.P5 judgment by this Court, where it is only stated that the records are to be called for from the 4th respondent D.M.O. to ascertain the actual particulars as on that date. 5. This Court does not find it necessary to pursue any roving enquiry and there is absolutely no necessity or occasion to alert the departmental authorities in this regard . In so far as the State Government or the departmental authorities have no case that the 4th respondent D.M.O. has passed appropriate orders as undertaken in Ext. P5 judgment and that by virtue of such orders, the petitioners are no more eligible to be permitted to continue to occupy the 'puramboke' land or that the D.M.O. does not have any liability to offer alternate space by virtue of W.P.(C) No. 24598 OF 2007 5 specific terms of the relevant Government Order mentioned therein, the petitioners will be entitled to run the Milma booth on the basis of the agency given to them, where it is being run now. However, it is made clear that this will not bar the way of the Government/Departmental authorities to pursue further steps to evict the petitioners in accordance with law and of course, with reference to the terms of the Government Order G.O.No.12164/D3/2002/PWD dated 11.10.2002 issued by the 6th respondent and relied on by the petitioners and subsequent Government Orders, if any. The matter is disposed of accordingly. P.R. RAMACHANDRA MENON, JUDGE. lk