IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 WP(C).No. 25840 of 2009(Y) -------------------------------------- PETITIONER: ------------------- ABDUL GAFOOR, AGED 36 YEARS, S/O.E.K.HAMSA, PROPRIETOR BLUE DIAMOND LODGE, MANANTHAVADY. BY ADV. SRI.ELDHO PAUL. RESPONDENTS: ------------------------ 1. MANANTHAVADY GRAMA PANCHAYAT, REP. BY ITS SPECIAL GRADE SECRETARY, MANANTHAVADY. 2. THE SECRETARY, MANANTHAVADY GRAMA PANCHAYAT, MANANTHAVADY. *ADDL. R3 IMPLEADED: 3. DEPUTY DIRECTOR OF PANCHAYATS, WAYANAD. *IMPLEADED SUO MOTU VIDE ORDER DT. 24/11/09. R1 & R2 BY ADV.SRI.P.C.SASIDHARAN, ADDL.R3 BY GOVERNMENT PLEADER SMT. N. SUDHADEVI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/07/2010,THE COURT ON 07/07/2010 DELIVERED THE FOLLOWING: W.P.(C). NO.25840/2009-Y: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE RECEIPT ISSUED BY THE R.1. PANCHAYATH DTD. 31/03/09. EXT.P.2: COPY OF THE NOTICE ISSUED BY THE R.2. DTD. 25/08/09. EXT.P.3: COPY OF THE REPLY GIVEN BY THE PETITIONER BEFORE THE PANCHAYATH DTD. NIL. EXT.P.4: THE ACKNOWLEDGEMENT RECEIPT DTD. 26/08/09 ISSUED BY THE R.1. EXT.P.5: THE NOTICE ISSUED BY THE R.2. DTD. 24/08/09 TO THE PETITIONER. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 25840 of 2009-Y - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of July, 2010. JUDGMENT Aggrieved by the communication Ext.P5, terminating the lease arrangement in respect of the lodge owned by the Panchayat, the petitioner has filed this writ petition. 2. The lodge is functioning in the building owned by the Panchayat, which is named as Blue Diamond Lodge. The same is situated in the vicinity of the bus stand. The petitioner's father was conducting the lodge for a period of 30 years and after his death, the petitioner is continuing with the same on payment of monthly rent to the Panchayat from time to time. The rent fixed is Rs.11,000/- and the arrangement with the petitioner started in the year 2008, for a period of three years. According to the petitioner, after accepting rent up to October, 2008 the first respondent refused to accept the rent thereafter and copy of the lease agreement has also not been furnished. 3. The lease agreement was being renewed every three years by giving enhancement of 10% of the rent. Initially he was given Ext.P2 notice dated 25.8.2009 directing to stop the repairing process undertaken wpc 25840/2009 2 by him, which was replied by the petitioner as per Ext.P3. It is the case of the petitioner that by notice dated 13.4.2009 he was informed that the rooms which were let out other than for the purpose of lodge to be evicted and by another notice he was asked to do the repairing works such as the leakage of the water tank and the sanitation system. It is pointed out that without allowing a breathing time, Ext.P5 was communicated. 4. While admitting the writ petition, this Court directed the Deputy Director of Panchayats to make a local inspection of the building and furnish a report before this Court. Accordingly, he has submitted a report. 5. The Panchayat has filed a detailed counter affidavit and the petitioner has filed a reply affidavit also. 6. In Ext.P5, the main reasons for terminating the lease arrangement are: (a) that many of the rooms have been given on rent for private purpose, offices etc. and (b) that the petitioner has not informed the Panchayat about the repairs undertaken with regard to the sanitary works, etc. 7. Learned counsel for the petitioner submitted that the allegation that some of the rooms have been let out to political parties, Government offices, etc. is not correct. This is evident from the report submitted by the Deputy Director of Panchayats. It is further submitted that the Panchayat is wpc 25840/2009 3 proceeding on unsustainable grounds and with a view to terminate the lease agreement for flimsy reasons. It is pointed out that the notices have been answered by him and even without conducting a hearing, the Panchayat Committee has taken a decision in the matter. 8. Learned Counsel for the Panchayat submitted that the petitioner has been using the lodge for his own commercial purposes and this amounts to violation of the lease conditions. It is pointed out that the rooms can be let out only for residential purposes. The petitioner was bound to keep the premises clean and tidy also. The details of the offices functioning, have been given in para 5 of the counter affidavit. It is also submitted that the rent payable is in arrears. 9. A reading of the report of the Deputy Director shows the following aspects: Inspections were conducted on 23.9. 2009 and 11.11.2009. The lodge is situated in Mananthavady bus stand building. It consists of shop rooms and a lodge. The lodge consists of of 37 rooms. As per Resolution No.41/2008 dated 14.3.2008 of the Panchayat, the period of lease is extended up to 31.3.2011 by enhancing 15% of the existing rent. In para 4, the details of the repair works being conducted, etc. have been stated. 10. There is no mention in the report about the functioning of wpc 25840/2009 4 Government offices, or office of any political parties, etc. in the lodge. This is highlighted by the learned counsel for the petitioner to contend that the very premise on which possession has been proposed to be taken by the Panchayat, cannot be sustained. It is further pointed out that only necessary repair works have been undertaken by the petitioner and no reconstruction, etc. have been carried out by him. 11. The nature of the repairs undertaken by the petitioner, going by para 4 of the report, includes tiling work of the public toilet, mossaic polishing, white washing of certain rooms, etc. 12. Even though learned Counsel for the Panchayat submitted that the entire details are not there in the report submitted by the Deputy Director, being a report submitted as per the orders passed by this Court, its contents can be relied on. 13. The rules, viz. Kerala Panchayat Raj (Acquisition and Disposal of Property) Rules, 2005 contains various provisions with regard to the manner of disposal of properties of the Panchayat. Rule 7 of the said rules allows the Panchayat to construct rooms and buildings and let out the same for rent or lease, etc. Sub-rule (4) of Rule 7 confers power on the Secretary to cancel the licence, if it is seen that the room was sublet to another person wpc 25840/2009 5 and the proviso specifies that before issuing an order cancelling the licence and also before evicting the user or the possessor, notice will have to be given asking him to show cause for not issuing such order within a reasonable time to be specified in the notice. 14. It is a case where the petitioner was given the right to conduct the lodge on the basis of a lease arrangement, by paying monthly rent. It is the case of the petitioner that subsequent to the filing of this writ petition, arrears of rent are being remitted by the petitioner from time to time and the Panchayat is now refusing to accept the money, even though he is ready to pay it. 15. Going by the pleadings, the main allegation raised against the petitioner is that some rooms have been let out for the functioning of various offices. This is said to be in violation of the provisions of the rules also. In Ext.P5 no details of the rooms where such offices, etc. are functioning, are stated. This is significant, especially since in the report furnished by the Deputy Director before this Court, there is no mention about the details with regard to the offices, if any, functioning in the lodge given to the petitioner. Then, the other issue is regarding the non payment of arrears of rent. Subsequent to the filing of the writ petition, the petitioner wpc 25840/2009 6 has paid various amounts towards arrears of rent also. 16. It is clear that the petitioner has acquired a right to conduct the lodge for a period of three years and the lease period ends by 2011 only, going by the report of the Deputy Director also. Therefore, the termination of such arrangement before the expiry of the lease deed clearly adversely affects the right of the petitioner. In that view of the matter, there should be cogent and specific reasons for cancellation. 17. The parties are in dispute with regard to the repairs undertaken by the petitioner also. The order should contain essential details for taking action under the Kerala Panchayat Raj (Acquisition and Disposal of Property) Rules. In the light of the facts stated above, I am satisfied that Ext.P5 does not contain the entire details with regard to the allegations. Specific items of the alleged violation ought to have found a place in Ext.P5. The notices issued, if any, prior to Ext.P5 are not available in the pleadings also. 18. The matter will, therefore, be reconsidered by the Panchayat with notice to the petitioner. Ext.P5 is therefore quashed. The details contained in the report of the Deputy Director as available before this Court, also justifies the above conclusion. wpc 25840/2009 7 19. Therefore, if the Panchayat wishes to proceed further, they should issue a comprehensive notice to the petitioner showing the details of the reasons on the basis of which the lease arrangement is proposed to be cancelled. The petitioner shall be given an opportunity of hearing also before any action is taken. The orders, if any, passed thereafter will be communicated to the petitioner. The petitioner will continue to pay the monthly rent along with arrears, from time to time. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/