IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 30TH JANUARY 2008 / 10TH MAGHA 1929 RSA.No. 406 of 2007() --------------------- AS.29/2006 of SUB COURT,THODUPUZHA OS.69/2003 of MUNISIFF COURT, DEVICOLAM .................... APPELLANT(APPELLANT-DEFENDANT) --------------------------------------------- PARVATHY, D/O.KOTTASAMY, AGED 60 YEARS, P.F.NO.2919, RESIDING AT M.P.VIII/4, OLD MUNNAR DIVISION, SEVENMALAY ESTATE, TATA TEA LIMITED, MUNNAR, KDH VILLAGE. BY ADV. SRI.P.RAMAKRISHNAN RESPONDENT: (RESPONDENT-PLAINTIFF) ----------------------------------- TATA TEA, A PUBLIC LIMITED COMPANY, INCORPORATED IN INDIA WITH ITS REG.OFFICE AT 1 BISHOP LEFROT ROAD, CALCUTTA & HAVING ITS REGIONAL OFFICE AT MUNNAR, KLDH VILLAGE, REPRESENTED BY MANAGER, SOUTH INDIA ESTATES DEPARTMENT, REGIONAL OFFICE, MUNNAR. BY ADV. SRI.JOSEPH KODIANTHARA SRI.MATHEWS K.UTHUPPACHAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ R.S.A.NO.406 OF 2007 ------------------------------------------ Dated 30th January 2008 J U D G M E N T Defendant in O.S.69/2003 on the file of Munsiff court, Devikulam is the appellant. Respondent instituted the suit for declaration of title and recovery of possession contending that plaint schedule building was allotted to appellant while she was employed in Sevenmalay estate and she retired on 31/12/2001 and even though she is bound to surrender the building within one month of her retirement, she did not do so and is unauthorisedly continuing occupation of the building and respondent is entitled to recover the possession of the plaint schedule building. Appellant resisted the suit contending that civil court has no jurisdiction as subject matter comes within the Plantation Labour Act, 1951 and the Rules. It was contended that building was allotted by respondent under the Rule 15 of Plantation of Labour Act and under Rule 62 (1) proviso 2, respondent is bound to transfer the building to a family member of 2 the employee when he or she retires from service and respondent is not entitled to the decree sought for. 2. Learned Munsiff on the evidence granted a decree directing the appellant to surrender the building within two months holding that the building was allotted to the appellant as an employee for her residence and after her retirement she has no right to continue the residence. Appellant challenged the judgment before Sub court, Thodupuzha in A.S.29/2006. Learned Sub Judge on re- appreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in second appeal. 2. Learned counsel appearing for appellant was heard. 3. Argument of learned counsel is that Rule 63(1) (ii) of Kearla Plantation Labour Rules provides that in the case of retirement or resignation a worker is entitled to retain the house allotted to an employee for a period not exceeding one month and under Sub Rule 2 if the competent authority is satisfied that a worker or any member of his family refuses to vacate the house allotted to such worker, after the expiry of the said period, worker can be directed to be vacated as provided under Sub Rule (iii) by the competent authority on 3 application filed by the employer and therefore jurisdiction of the civil court is barred. Learned counsel also argued that under the proviso 2 to Rule 62(1) of Plantation Labour Rules an employer is bound to allot the accommodation which originally stood allotted to an employee, on his or her retirement to a member of the family of that employer who is employed under the same employer and as the respondent failed to allot the building to a member of the family of appellant recovery of possession should not have been granted. 3. On hearing the learned counsel I do not find any substantial question of law involved in the appeal. As rightly found by the first appellate court, Rule 63(2) of Kerala Plantation Rules does not bar the jurisdiction of the civil court either expressly or impliedly. At best, it could be said that the employer is provided with an alternative and quick forum of getting the building allotted to an employee vacated on his retirement and it does not amount to a bar of jurisdiction of the civil court as there is no express or implied bar. Therefore, suit is perfectly maintainable. 4. Under the relevant rules it is admitted case that an employee to whom accommodation is provided, has to vacate the building within 30 days from the date of his 4 retirement. What was argued by the learned counsel is that under second proviso to Rule 62(1), the employer is bound to transfer the accommodation so provided to the employee at the time of his retirement to a near relative of that employee who is employed under the same employer. To claim the benefit of that provision, appellant has to plead and prove that she has a near relative employed under the respondent, who is entitled to get allotment of the accommodation by respondent. There is no pleading or evidence that any particular employee is a family member of the appellant so as to get the building transferred to that employee. In the absence of pleading and evidence, appellant is not entitled to claim that the decree granted by the courts below is not sustainable in view of enabling provision provided under proviso 2 of Rule 62(1) of Kerala Plantation Rules. Appeal is dismissed in limine. Dismissal of the appeal will not disentitle any member of the family of the appellant from claiming the benefit as provided under proviso to Rule 62(1) of Kerala Plantation Rules if such employee has any such right. M.SASIDHARAN NAMBIAR, JUDGE. uj.