IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 19TH FEBRUARY 2008 / 30TH MAGHA 1929 WP(C).No. 37815 of 2007(B) ------------------------------------ PETITIONERS: -------------------- 1. K.MAMMU, AGED 60 YEARS, S/O.ABDULLA, CHIRAKAL GRAMA PANCHAYATH, SHOPPING COMPLEX, C.P.NO.XIII/1072, RESIDING AT RAYAR MANZIL, KUNNUKAI, P.O.CHIRAKAL, KANNUR DISTRICT. 2. A.MUSTHAFA, AGED 45 YEARS, S/O.K.P.MAMOO CHIRAKAL GRAMA PANCHAYATH, SHOPPING COMPLEX, C.P.NO.XIII/1069, RESIDING AT SUHAIL MANZIL, KOLLARATHIKKAI, P.O.CHIRAKAL, KANNUR DISTRICT. 3. V.K.IBRAHIMKUTTY, 45 YEARS, S/O.USMAN, CHIRAKAL GRAMA PANCHAYATH, SHOPPING COMPLEX, C.P.NO.XIII/1066, RESIDING AT VAYANAD KANNIAN HOUSE, P.O. CHIRAKAL, KANNUR DISTRICT. 4. MUNEER P.M., AGED 38 YEARS,S/O.IBRAHIM, CHIRAKAL GRAMA PANCHAYATH, SHOPPING COMPLEX, C.P.NO.XIII/1054, RESIDING AT 'P.M.HOUSE', P.O. CHIRAKAL, KANNUR DISTRICT. 5. THANOLI VIJAYAN, 45 YEARS, S/O.KUNHIRAMAN, CHIRAKAL GRAMA PANCHAYATH,SHOPPING COMPLEX, C.P.NO.XIII/1052,RESIDING AT THANOLI HOUSE, P.O.CHIRAKAL, KANNUR DISTRICT. 6. V.K.MOHANAN, 48 YEARS, S/O.KRISHNAN, CHIRAKAL GRAMA PANCHAYATH, SHOPPING COMPLEX, C.P.NO.XIII/1062,RESIDING AT KUTHUPARAMBATH HOUSE, P.O.CHIRAKAL, KANNUR DISTRICT. 7. LAMBODARAN DHANANJAYAN, 50 YEARS, S/O.KUMARAN, CHIRAKAL GRAMA PANCHAYATH, SHOPPING COMPLEX, C.P.NO.XIII/1061,RESIDING AT AYIKKODE HOUSE, P.O.CHIRAKAL, KANNUR DISTRICT. 8. K.RAJAN, 56 YEARS, S/O.P.K.KARUNAKARAN, CHIRAKAL GRAMA PANCHAYATH, SHOPPING COMPLEX, C.P.NO.XIII/1059,RESIDING AT MUTTARATH HOUSE, P.O.NARATH, KANNUR DISTRICT. W.P.(C) NO.37815/2007 9. B.ABDURAHAMN, 65 YEARS, S/O.MUHAMMED, CHIRAKAL GRAMA PANCHAYATH, SHOPPING COMPLEX, C.P.NO.XIII/1055,RESIDING AT PUZHATHI, P.O.CHIRAKAL, KANNUR DISTRICT. 10. MOIDEEN HAJI, 70 YEARS, S/O.MUHAMED, CHIRAKAL GRAMA PANCHAYATH, SHOPPING COMPLEX, C.P.NO.XIII/1056,RESIDING AT SULAIKHA MANZIL, KATAMPALLI ROAD, P.O.CHIRAKAL, KANNUR DISTRICT. 11. PURUSHOTHAMAN, 48 YEARS, S/O.M.ANANTHAM, CHIRAKAL GRAMA PANCHAYATH, SHOPPING COMPLEX, C.P.NO.XIII/1071,RESIDING AT PUZHATHI, P.O.CHIRAKAL, KANNUR DISTRICT. 12. KAKARAYIL BALAKRISHNAN, 49 YEARS, CHIRAKAL GRAMA PANCHAYATH, SHOPPING COMPLEX, C.P.NO.XIII/1071, RESIDING AT PUZHATHI, P.O.CHIRAKAL, KANNUR DISTRICT. 13. P.P.MUHAMMED, AGED 37 YEARS, S/O. ABDUL KHADER, CHIRAKAL GRAMA PANCHAYATH, SHOPPING COMPLEX, C.P.NO.XIII/1060, RESIDING AT PANANKAM, P.O.CHIRAKAL, KANNUR DISTRICT. 14. P.P.SAINUDHEEN, AGED 43 YEARS, S/O. ABDUL KHADER, CHIRAKAL GRAMA PANCHAYATH, SHOPPING COMPLEX, C.P.NO.XIII/1054, RESIDING AT P.P.HOUSE, P.O.CHIRAKAL, KANNUR DISTRICT. 15. P.P.ABDUL AZEEZ, AGED 49 YEARS, S/O.IBRAHIM, CHIRAKAL GRAMA PANCHAYATH, SHOPPING COMPLEX, C.P.NO.XIII/1048, PALLIPURATH PUNNAKKAL HOUSE, KANNIRATHARA, P.O.CHIRAKAL, KANNUR DISTRICT. 16. P.P.MOHAMMED ALI, AGED 44 YEARS, S/O.MOIDEEN HAJI, CHIRAKAL GRAMA PANCHAYATH, SHOPPING COMPLEX, C.P.NO.XIII/1057, RESIDING AT KUNNUKAI, P.O.CHIRAKAL, KANNUR DISTRICT. 17. C.RAJAN, 45 YEARS, S/O.KUMARAN, CHIRAKAL GRAMA PANCHAYATH, SHOPPING COMPLEX, C.P.NO.XIII/1065, RESIDING AT PUZHATHI, P.O.CHIRAKAL, KANNUR DISTRICT. 18. PREMJITH RATHNAKARAN, AGED 42 YEARS, S/O.RARNAKARAN, CHIRAKAL GRAMA PANCHAYATH, SHOPPING COMPLEX, C.P.NO.XIII/1051, RESIDING AT KRISHNA NIVAS, P.O.CHIRAKAL, KANNUR DISTRICT. W.P.(C) NO.37815/2007 19. P.P.HAMEED, AGED 62 YEARS, S/O.USMAN, CHIRAKAL GRAMA PANCHAYATH, SHOPPING COMPLEX, C.P.NO.XIII/1050, RESIDING AT P.P.HOUSE, KUNNUKAI. P.O.CHIRAKAL, KANNUR DISTRICT. 20. R.V.UNNIKRISHNAN, AGED 52 YEARS, S/O.ANANTHAN NAIR, CHIRAKAL GRAMA PANCHAYATH, SHOPPING COMPLEX, C.P.NO.XIII/1067, RESIDING AT R.V.HOUSE, P.O.CHIRAKAL, KANNUR DISTRICT. 21. P.P.SATHAR, AGED 42 YEARS, S/O.MOIDEEN HAJI, GENERAL MUCLART, BUILDING NO. 13/1063 IN PANCHAYAT SHOPPING COMPLEX, PUTHIYATHARA. BY ADV. SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.R.O.MUHAMED SHEMEEM SRI.T.P.SAJID RESPONDENTS: ------------------------ 1. THE SECRETARY, CHIRAKAL GRAMA PANCHAYATH POST CHIRAKAL, KANNUR DISTRICT. 2. PANCHAYATH DEPUTY DIRECTOR, KANNUR. 3. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, LOCAL ADMINISTRATION, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM, REPRESENTED BY GOVERNMENT PLEADER, HIGH COURT OF KERALA. BY ADV. SRI.I.V.PRAMOD SRI.P.NARAYANAN - R1 BY GOVERNMENT PLEADER SRI.K.J.MOHAMMED ANZAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.37815/2007 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE CERTIFICATE DT. 4.2.2006. EXT.P2:- COPY OF THE CIRCULAR PRINTED FOR CIRCULATION . EXT.P3:- COPY OF THE REPRESENTATION DT. 17.10.2007. EXT.P4:- COPY OF THE REPORT DT. 29.10.2007 UNDER REFERENCE NO.B1/4285/07. EXT.P5:- COPY OF THE INSPECTION REPORT. EXT.P6:- COPY OF THE MAINTANANCE WORK OF MARKET SHOPPING COMPLEX, IN R.S. NO.107/4A. EXT.P7:- REPRESENTATION TO THE PRINCIPAL SECRETARY TO LOCAL ADMINISTRATION BY KERALA VYAPARI VYAVASAYI SAMITHI DT. 6.1.2008. EXT.P8:- COPIES OF THE COUPONS OF MONEY ORDER REFUSED BY THE SECRETARY DT.6.4.2007. RESPONDENT'S EXHIBITS EXT.R1(a):- COPY OF THE JUDGMENT IN WP.C NO.2482/2007 DT. 24.1.2007. /TRUE COPY/ P.A. TO JUDGE tss PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)No. 37815 OF 2007 ----------------------------------------------- Dated this the 18th day of February, 2008 J U D G M E N T Retail traders occupying rooms in the shopping complex belonging to the Chirakal Grama Panchayat apprehending eviction from the premises have filed this writ petition under Article 226 seeking a writ of mandamus commanding the third respondent Government to consider and take appropriate and expedient decision on the recommendation of the second respondent Deputy Director of Panchayat in Ext.P3 report submitted by him to the Director of Panchayats. The other prayers in the writ petition are a direction to the first respondent Panchayat to refrain from resorting to forcible eviction of the petitioners and the consequential deprivation of their means of livelihood. According to the petitioners, they are retail traders occupying the rooms since 1986 on the basis of renewal of licence and enhancement of monthly licence as directed by the Panchayat. According to them, on the basis of Ext.P1 certificate issued by Assistant Executive Engineer and Ext.P2 circular issued by the Panchayat they were under threat of eviction from the premises. Several writ petitions were filed by them and it is conceded that the power of the Panchayat to refuse, renew or cancel the licence has WP(C)N0.37815/07 -2- been upheld. According to the petitioners they do not plead that they will not surrender the building if it actually requires demolition. According to them, they will surrender the building the moment administrative sanction for demolition and new construction is obtained and the cost of demolition and reconstruction is allotted or earmarked in the budget and the exact date of demolition is fixed. They have filed a representation before the Government as Ext.P3 which was forwarded by the Government to Director of Panchayat who in turn forwarded it to the second respondent Deputy Director and it is accordingly that the second respondent submitted Ext.P4 report endorsing the contentions of the petitioners that the buildings does not require immediate demolition and that the proposal for demolition and reconstruction will not be feasible or viable even from the Panchayat's point of view. Therefore they pray that they should be permitted to carry on business in the premises till the Government took a final decision on their representation Ext.P3. 2. On behalf of the first respondent Panchayat its standing counsel has filed a detailed statement wherein it is pointed out that some of the petitioners had earlier approached this court by filing three writ petitions, i.e., WP(C) Nos. 19258/06, 20600/06 and WP(C)N0.37815/07 -3- 20623/06. Those writ petitions were disposed of granting stay of eviction till 15-9-2006 so as to enable the petitioners to approach the Tribunal. Some of the petitioners, viz., 1, 2, 3, 12, 13 and 14 filed Appeal No. 358/06 before the Tribunal and the Tribunal dismissed the appeal granting two more months time to vacate. Against the judgment of the Tribunal those six petitioners filed Writ Petition No. 2482/07 before this court and this court passed Ext.R1(a) judgment relying on earlier decisions of this court and held that licencee or a tenant of a Panchayat cannot aspire for continuance after the expiry of the lease or licence period. It is suppressing Ext.R1(a) judgment that the petitioners have filed this writ petition. It is pointed out that while passing Ext.R1(a) this court had granted time to the petitioner up to 31-3-2007 and following that direction the Panchayat also decided to extend the period till 31-3-2007. Upon expiry of that period the Secretary of the Panchayat issued public notice to the petitioners demanding eviction. Against that public notice 12 appeals were preferred by some of the petitioners and all those appeals were dismissed by the Tribunal. Challenging that some of the occupants filed WP(C) Nos. 14663 and 15336 of 2007. In view of Ext.R1(a) and attendant circumstances this court became inclined to dismiss those WP(C)N0.37815/07 -4- writ petitions and at that time counsel sought permission to withdraw from the writ petition and accordingly the writ petitions were dismissed as withdrawn. No permission has been granted by this court to the petitioners to move this court again. The statement goes on to deny the allegation that the Panchayat is taking hasty steps for evicting the petitioners with the object of helping a contractor who had constructed a new shopping complex. That building is near to this shopping complex and it is understood that all the rooms in that shopping complex have already been sold out. Petitioners approached this court by suppressing materials facts and distortion of facts from this court. Lastly it is pointed out in the statement that after 31-3- 2007 the petitioners are occupying the building without even paying rent and other statutory charges. 3. Noticing the last contention I directed the standing counsel for the Panchayat to file a statement regarding the rates of the rent which was being paid by the petitioners. Accordingly a statement was filed. The petitioners have filed a detailed reply affidavit denying the contentions raised in the statement of the Panchayat's counsel. It is highlighted that the respondents have not chosen to file counter affidavit and that what has been filed in answer to the allegations in WP(C)N0.37815/07 -5- the writ petition and the grounds raised therein is only an unverified statement filed by the counsel for the Panchayat. The disinclination of respondents 1 and 2 to file counter affidavit is highlighted. The reply affidavit denies the allegation of suppression of facts and vital information by the petitioners. It is stated that during the pendency of the earlier writ petition the leaders of the ruling party in Kannur District were alerted and the representatives of the petitioners were summoned for a conciliation since leaders of the ruling party became apprehensive that large scale expulsion of occupants of the Panchayat building complex and ruthless deprivation of their sole means of livelihood would generate public resentment and would even lead to violent agitation against the Government. The petitioners were advised that Writ Petition No. 15663/07 be withdrawn as not pressed so as to facilitate a fresh approach to the issue by the authorities. Accordingly that writ petition was got dismissed. Petitioners were advised by legislators of the ruling party from Kannur District to submit a representation before the Kerala Government and Ext.P3 representation was submitted by the petitioners in the letter paper of Kerala Vyapari Vyavasayi Ekopana Samithi on behalf of the petitioners before the Honourable Minister. Along with the reply affidavit the WP(C)N0.37815/07 -6- petitioners have submitted Ext.P7 which is a copy of the representation submitted before the Principal Secretary of the Local Self Government Department by the Vyapari Vyavasayi Ekopana Samithi. It is submitted that pursuant to this representation, the Chief Engineer of the Local Self Government Department and a team of engineers inspected the building complex and they appeared to have been satisfied that the building requires only minor repairs and not a complete demolition. The petitioners believe that the Chief Engineer will be submitting his report to the Government and the Government will be taking a decision on the basis of the said report. As regards allegation that rent is in arrears it is stated that the rent was tendered, but the Secretary of the Panchayat refused to accept the rent. Petitioners express their willingness to pay the entire arrears. 4. I have heard the submissions of Sri.C.Khalid, learned counsel for the petitioners and Sri.Pramod, learned standing counsel for the Panchayat. I directed the learned Government Pleader to find out from the Government whether any representation filed by the petitioners is pending before the Government and also as to whether Chief Engineer inspected the buildings in question as directed by the Government. Pursuant to that direction the Government Pleader has WP(C)N0.37815/07 -7- placed before me the file which contains letters to the Advocate General from the Chief Engineer as well as a certificate issued by the Assistant Executive Engineer, LSGD Sub Division, Kannur about the physical condition of the shopping complex. Going by the certificate issued by the Assistant Executive Engineer the shopping complex building is unfit for functioning and the building is to be demolished immediately for avoiding casualties. This certificate (Ext.P1 itself) is the one on the basis of which the Panchayat Secretary initiated the action. It is stated in the Chief Engineer's letter that the Minister for LSGD instructed the Chief Engineer to inspect the shopping complex in question by an expert team . Therefore an expert team consisting of Superintending Engineer, LSGD North Circle, Kozhikode, Executive Engineer, LSGD Division Kannur, and the Executive Engineer Buildings Dn. PWD Thalassery were directed to inspect the building and submit a report urgently by the Chief Engineer vide letter dated 12-2-2008. The inspection report is awaited and on receiving that, the Chief Engineer will be reporting to the Minister. As regards Assistant Engineer's certificate it is submitted that the said certificate was received by the Chief Engineer along with the petition which was submitted by the Kerala Vyapari Vyavasayi Ekopana Samithi to the Minister. The WP(C)N0.37815/07 -8- Government Pleader also submitted that Ext.P3 and Ext.P7 representations submitted by the Vyapari Vyavasayi Ekopana Samithi have not been finally disposed of by the Government. 5. On considering the rival submissions addressed before me by the learned counsel appearing for various parties there is no difficulty to accept the argument of the learned Standing Counsel for the Panchayat that the petitioners do not have any legal right to continue in possession of the respective shop rooms, whatever be the real condition of the shopping complex. At the same time the circumstance that Government has been moved by them directly and through the Vyapari Vyavasayi Ekopana Samithi and the Government has issued certain directions to have an inspection by a team of experts to ascertain the truth of the position taken by the Panchayat that the building is in a dilapidated condition and the contra position taken by the petitioners that the building is in a solid condition cannot be ignored. After all it is not seriously in dispute that all the petitioners are eking out their livelihood by carrying on business in the buildings and there is no immediate proposal before the Panchayat to reconstruct the building or to construct a new building so as to make up for the loss which will be sustained by the Panchayat on account of WP(C)N0.37815/07 -9- the rent which was otherwise recoverable in respect of the building. In the statement dated 13-2-2008 it is reported that presently the petitioners are paying monthly rent at the rate of Rs. 802/-, Rs.846/-, Rs.932/-, Rs.828/-, Rs.543/-, Rs.833/-, Rs.833/-, Rs.539/-, Rs.539/-, Rs.557/-, Rs.816/-, Rs.840/-, Rs.2085/-, Rs.539/-, Rs.539/-, Rs.2168/-, Rs.538/- Rs.539/- Rs.824/-, Rs.810/- respectively. It is not in dispute that the above rent is in arrears till 31-3-2007. On considerations of justice I am inclined to direct the Panchayat to permit the petitioners to continue in possession of the respective rooms on condition that they discharge the entire arrears at the rates mentioned in paragraph 2 of the statement filed by the first respondent till 31-3-2007 and pay monthly rent at the rate of 25% above those rates for the subsequent period till such time the Government takes a decision on Exts. P3 and P7 representations. The Government will also be directed to take early decision based on the report to be submitted by the Chief Engineer. The result therefore is that the following directions are issued: The third respondent is directed to issue necessary instructions to the Chief Engineer LSGD and ensure that the Chief Engineer submits the report called for by Government letter WP(C)N0.37815/07 -10- No.12511/08/M (LSG) dated 16-1-2008 within one month from today. The third respondent will on receiving that report hear one representative of the petitioners and one representative of the Kerala Vyapari Vyavasayi Ekopana Samithi, Town Unit, Puthiyatheruvu P.O., Chirakkal, Kannur as well as the Panchayat and take a final decision on Exts.P3 and P7. Decision as directed above will be taken by Government within two months on Government receiving report from the Chief Engineer. Considering the above direction, there will be a direction to the Panchayat not to take any coercive steps for evicting the petitioners from the shop rooms respectively occupied by them till such time as the Government take decision on Exts.P3 and P7 and communicates the same to the Panchayat and the Kerala Vyapari Vyavasayi Ekopana Samithi subject to the following conditions: The petitioners will discharge the rent/licence fee arrears payable by them to the Panchayat at the rates mentioned in paragraph 2 of the statement filed by the first respondent for the period up to 31-3-2007 together with damages for use and occupation for the periods till 29-2-2008 at the rate of 25% above the rates WP(C)N0.37815/07 -11- applicable for the period up to 31-3-2007 on or before 15-3- 2008. If either of the above conditions are not complied with it will be open to the Panchayat to evict the petitioners summarily from the premises in their occupation. As regards the period subsequent to 15-3-08 also the petitioners must continue to pay damages to the Panchayat for use and occupation at the enhanced rate indicated above. (PIUS C.KURIAKOSE, JUDGE) ksv/-