IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 4TH JULY 2011 / 13TH ASHADHA 1933 SA.No. 491 of 2001() -------------------- AS.247/1996 of ADDL.DISTRICT COURT, THRISSUR OS.239/1992 of I ADDL.SUB COURT, THRISSUR .................... APPELLANT/APPELLANT IN FIRST APPEAL/PLAINTIFF IN O.S: ------------------------------------------------------------------- K.ARAVINDHAKSHAN, AGED 63 YEARS, S/O.K.GANGADHARA MENON, KARANGARA HOUSE, VELIYANNUR VILLAGE DESOM, THRISSUR TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENT/RESPONDENT IN FIRST APPEAL/DEFENDANT IN O.S: ------------------------------------------------------------------------- THE THRISSUR MUNICIPALITY REPRESENTED BY ITS SECRETARY. ADV. SRI.K.P.VIJAYAN SRI.V.M.SYAM KUMAR SMT.KRIPA ELIZABETH MATHEWS SRI.V.N.HARIDAS THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA ,J. ------------------------- S.A No.491 of 2001 -------------------------- Dated this the 29th August, 2011 J U D G M E N T A suit was filed for mandatory injunction before the Sub Court by the appellant herein. According to the appellant, his father was conducting grocery business in three rooms as a tenant under the respondent-Municipality. After the death of his father, he was continuing business as his legal heir. Respondent-Municipality for the purpose of creating a bell mouth at the entry of Kuruppam road to Swaraj road acquired buildings situated on the east and west of Kuruppam road. 2. In the course of such acquisition, one room on the ground floor and two rooms on the first floor in occupation of appellant's father were acquired. Since there was some delay in acquisition proceedings, appellant was allowed to construct shop room at his own cost till the building complex of the Municipality was completed. A room was constructed and the appellant was doing business therein. License fee was also collected for the said room. S.A No.491 of 2001 2 3. Municipality constructed a building complex but equal number of rooms were not allotted to the appellant. The stair case which led to the first floor of the building was removed by the Municipality and hence the rooms in the first floor could not be used. The request for construction of stair case was turned down and in such circumstances, the appellant prayed for a decree of mandatory injunction directing the respondent-Municipality to allot two rooms on the eastern end of first floor of the newly constructed building and also directing the Municipality to provide a stair case to the first floor. Prohibitory injunction was also prayed for to restrain the respondent-Municipality from allotting two rooms in the first floor to any person other than the appellant. 4. Respondent-Municipality filed a detailed written statement and contended that the suit is not maintainable in view of Section 392 of Municipalities Act, 1961. No business was being run by the appellant's father in the two rooms in the up stair portion and those were not suitable for business. There was no understanding between S.A No.491 of 2001 3 appellant and other tenants or the respondent for allotting equal number of rooms to the occupants in the newly constructed building. There was no occasion for such a situation. Appellant was allotted one room having the same area as that of the three rooms of which, his father had and he was rehabilitated on humanitarian consideration. That does not give him any legally enforceable right, it is contended. Appellant is still doing business in the room allotted to him. According to respondent, there was no understanding between the appellant and the respondent that the respondent- Municipality will allot equal number of rooms in the newly constructed building. 5. The trial court entered findings against the appellant and rejected prayer for mandatory injunction as well as prohibitory injunction. It was held that the suit is hit for want of notice under Section 392 of the Kerala Municipalities Act and that mandatory injunction cannot be granted. It was held that the appellant has no legal right to claim any room in the building newly constructed by the Municipality. None of the documents produced and marked S.A No.491 of 2001 4 by the appellant spells out an agreement between the parties to let out equal number of rooms to the appellant. The suit was dismissed. 6. In the appeal, filed before the District Court by the appellant, the appellate court found that the view taken by learned Sub Judge on the bar of Section 392 is not acceptable. The lower appellate court was of the view that distinction cannot be made between the suit for prohibitory injunction and mandatory injunction for the purpose of Section 392 of Kerala Municipalities Act. The suit was found to be maintainable. 7. However, the lower appellate court found on consideration of evidence on record, that appellant did not produce any document to show the alleged understanding between himself and other tenants with Chairman of the Municipality for providing equal number of rooms in the newly constructed building. The lower appellate court also took note of the fact that the respondent allotted a room to the appellant where he was doing business and it was not shown that there was an agreement between the parties, S.A No.491 of 2001 5 whereby, the respondent was obliged to allot equal number of rooms in the newly constructed building. Respondent did not take out a commission to show that the room already allotted to him is insufficient for the purposes. 8. It was also noted that the room which was occupied by the appellant's father as a tenant was acquired and despite this fact room was allotted to the convenience of the appellant in the newly constructed building. The lower appellate court also found that it is not shown that in the absence of a stair case as claimed by appellant, access to the first floor is not possible. No attempt was made to show that there was a stair case at the point as claimed by appellant. The lower appellate court held in paragraph 18 as follows: “The court could issue a decree for mandatory injunction only when there is an obligation existing in favour of the appellant. Obligation means a legally enforceable duty, a tie or bond which constrains a person to do or suffer something. It employs a right in the appellant to which it is co-related. Such obligation may arise out of the contractual relations. In the case on hand, I have already found that no such obligation on the part of the respondent has been established by the appellant. As such, the decisions relied by the learned counsel for the S.A No.491 of 2001 6 appellant has no factual application in the case on hand.” 9. On the above findings, the appellate court dismissed the appeal and hence this second appeal. Though as many as seven questions are raised in the appeal memorandum, as substantial questions of law, I do not think that any substantial question of law is involved in this case. According to learned counsel for appellant, his claim is based on the doctrine of legitimate expectation and also promissory estoppel. But both the courts concurred on the finding that there is absolutely nothing on record to show that there was any agreement between the parties and there was no situation which could lead the appellant to legitimate expectation. 10. According to learned counsel for appellant, there is no specific written agreement, but a reading of Exts.A1 to A7 will lead to an inference that there was an agreement between the parties to allot equal number of rooms to the appellant in the newly constructed building. Because of this, respondent was under legally enforceable S.A No.491 of 2001 7 duty to allot equal number of rooms in the newly constructed building, it is argued. 11. On hearing both sides and on going through the records, I find that both courts below have come to the conclusion that appellant did not produce any documents to establish that there was an agreement between himself and other tenants with the Chairman of the Municipality or any other authority to allot equal number of rooms in the newly constructed building. On going through the records, I am also unable to infer from the documents that there is an an agreement, as contended by the appellant. Admittedly appellant was given a room in the newly constructed building, even though after acquisition, the respondent was not under any legal duty to allot such room. But as contended by the respondent, the allotment was made on the basis of rehabilitation process, on humanitarian consideration. 12. In such circumstances, there is absolutely no reason to interfere in the concurrent findings of fact. Appellant cannot claim anything more than what is given to S.A No.491 of 2001 8 him. By merely raising a contention on doctrine of legitimate expectation and estoppel, appellant cannot succeed to prove any legally enforceable right. The claim based on legitimate expectation without anything more cannot, ipso facto, give a right as held by the Supreme Court in Bennari Amman Sugars Ltd Vs. Commercial Tax Officer [2005 (1) SCC 625] In the absence of an agreement between the parties, the appellant has no legal right to get any injunction as prayed for. Regarding the reliefs sought for in respect of stair case also, appellant has failed to establish any right to get an injunction as prayed for. In the above circumstances, this appeal is to be dismissed. This appeal is dismissed. (Sd/- K.HEMA, JUDGE) ma /True copy/ P.A to Judge