IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 12TH JANUARY 2011 / 22ND POUSHA 1932 WP(C).No. 11311 of 2010(L) -------------------------- PETITIONER(S): --------------- ZHACARIA USMAN, C.C.6/105, JEW TOWN, MATTANCHERRY, KOCHI-2. BY ADV. SRI.SAJEEV KUMAR K.GOPAL SRI.SURAJ KRISHNA B.S. RESPONDENT(S): --------------- 1. THE DIRECTOR, DIRECOTRATE OF STATE WATER TRANSPORT DEPARTMENT, ALAPPUZHA. 2. THE ESTATE OFFICER, STATE WATER TRANSPORT DEPARTMENT, DIRECTORATE OF STATE TRANSPORT DEPARTMENT, ALAPPUZHA. 3. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, WATER TRANSPORT DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.T.K. ARAVINDKUMAR BABU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.11311 OF 2010(L) -------------------------------------------------- Dated this the 12th day of January, 2011 J U D G M E N T Petitioner was allotted a room bearing Door No.CC.6/105, situated in Jew Town, Mattancherry on monthly rent of Rs.891/-. It is stated that a partnership firm was formed and that the partnership firm was conducting handicraft business in the room. According to the petitioner the rent due for the room was paid till 28.2.2007. It is stated that on 4.3.2010, the 2nd respondent issued Ext.P1 notice initiating proceedings under Section 4 of the Kerala Public Buildings(Eviction of Unauthorized Occupants) Act 1968. According to the petitioner, although he did not file a reply to Ext.P1, other two persons, who are his partners, to whom notice was issued, submitted Ext.P2 reply. The case of the petitioner is that without initiating any further proceedings as contemplated either under Section 4 of the Act or under Section 5, on 26.3.2010, petitioner was evicted from the room and the room was locked by the 2nd respondent. It is challenging the aforesaid proceedings the writ petition is filed. WPC.No. 11311/2010 :2 : 2. Contention raised by the counsel for the petitioner is that 2nd respondent being the Estate Officer appointed under the Provisions of the Act is bound to discharge his duties in terms of the provisions of the Act. It is stated that under Sections 4 and 5, when notice is issued and the response is received, the 2nd respondent is bound to afford an opportunity of hearing to the parties concerned, and thereafter shall pass an order of eviction. It is stated that only if such an order of eviction is passed, can the 2nd respondent evict the occupant. It is stated that without complying with the aforesaid formalities all on a sudden, petitioner was evicted from the leased premises on 26.3.2010. This according to the counsel for the petitioner is illegal and calls for interference. 3. Counter affidavit has been filed by the 2nd respondent. In the counter affidavit, it is stated that the room was allotted to the petitioner for conducting business of tea and cool bar. It is stated that despite the above, handicraft business was being carried on in the room. It is stated that rent was in arrears from 1.3.2007 and that therefore Ext.P1 notice was issued under Section 4 of the Act. It is stated that despite service of notice petitioner did not WPC.No. 11311/2010 :3 : submit any reply and that in Ext.P2 reply submitted by the other persons they denied occupation of the building. It is stated that it was therefore that, further action was initiated and the petitioner was evicted from the premises in question. This according to the respondents is fully in compliance with the provisions of the Act and therefore this court should not interfere with the same. 4. The fact that the petitioner was the allottee of the room is not in dispute. That Ext.P1 notice was issued under Section 4 of the Act is not a disputed issue. Petitioner also admits that in response to Ext.P1, he did not submit any reply. Question is whether, in spite of the above, the 2nd respondent could have summarily evicted the petitioner from the premises in question. 5. As already seen the 2nd respondent is an Estate Officer as defined under the Act. An Estate Officer under the Act is to discharge his duties in terms of the provisions in the Act. Sections 4 and 5 of the Act lays down The manner in which the Estate Officer is to issue notice and pass orders of eviction. These sections provide that once a notice is issued and on receipt of response thereto, the Estate Officer is bound to hear the parties concerned and if required, pass an order of eviction. Despite WPC.No. 11311/2010 :4 : service of such an order of eviction, if the unauthorized occupant fails to comply with the order, the Estate Officer is empowered to evict the unauthorized occupant from the premises also. In this case apparently for the reason that in response to Ext.P1 petitioner did not submit his explanation, the Estate Officer proceeded to evict him without passing an order as contemplated under Sections 4 and 5. This in my view is illegal. Whether a person has responded to a notice by filing his reply or not, the Estate Officer is bound to pass an order of eviction and without passing such an order of eviction, the Estate Officer could not have evicted the occupant from the premises in his occupation. 6. For the reason that such an order of eviction has not been passed, the Estate Officer could not have evicted the petitioner from the premises in question. Therefore the petitioner is entitled to be restored possession of the premises, but however, the same shall be without prejudice to the right of the 2nd respondent to proceed in pursuance to Ext.P5 and pass orders in terms of Sections 4 and 5 of the Act. That apart, having regard to the admitted fact that from Ist March, 2007, rent in in arrears, restoration of the possession in pursuance to the above shall be WPC.No. 11311/2010 :5 : only on the petitioner depositing arrears of rent till 26.3.2010, the day on which the petitioner was evicted from the premises. 7. Therefore, I dispose of this writ petition with the following directions. On the petitioner remitting rent and other charges, if any due, in relation to the premises for the period from 1.3.2007 to 26.3.2010, the 2nd respondent will restore possession of the premises to the petitioner. It will be open to the 2nd respondent to proceed with Ext.P1 by complying with the provisions of Sections 4 and 5 of the Act and if an order of eviction is passed and it is open to the 2nd respondent to evict the petitioner from the premises in accordance with law. (ANTONY DOMINIC) JUDGE vi/