IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 27TH MAY 2008 / 6TH JYAISHTA 1930 WP(C).No. 294 of 2008(I) ---------------------------------- PETITIONER: -------------------- P.K.CHAKKUNNY,S/O.P.C.KUNHIPALU 25/129,PAREKADAN HOUSE, AMBALAM ROAD TRIKKARA NORTH VILLAGE KOONAMTHAI, EDAPALLY REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SRI.ARUN BABU P. CHAKCO,S/O.P.K.CHAKKUNNY 25/129,PAREKADAN HOUSE, AMBALAM ROAD EDAPALLY. BY ADV. SMT.R.RANJINI SRI.S.RENJITH RESPONDENTS: ------------------------ 1. CORPORATION OF KOCHI PARK AVNUE ROAD, ERNAKULAM, REP. BY ITS SECRETARY. 2. THE TOWN PLANNING OFFICER CORPORATION OF KOCHI, PARK AVNUE ROAD, ERNAKULAM. 3. ARUN KUMAR, ARUN NIVAS, 41/3220 AYYAPANKAVU, KOCHI-18 4. JOSEPH KETTLE.A. VALLANAT S/O. LATE BARAHAM VALLANAT VALLANAT HOUSE, ASSHHEERBHAVAN LANE KACHERIPADY, KOCHI-18. BY ADV. SMT.A.G.ANEETHA - R1 SRI.SAJAN VARGHEESE K. - R3 SRI.LIJU. M.P - R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/05/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO. 294/2008 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE RENT RECEIPT DT. 7.10.07 ISSUED TO THE PETITIONER. EXT.P2:- COPY OF THE NOTICE DT. 16.1.07 ISSUED TO THE PETITIONER. EXT.P3:- COPY OF THE NOTICE DT. 29.12.07 ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT. EXT.P4:- COPY OF THE NOTICE DT. 27.10.07 ISSUED BY THE 2ND RESPONDENT. EXT.P5:- COPY OF THE ORIGINAL PHOTOGRAPH SHOWING THE LIE OF THE BUILDING. EXT.P6:- COPY OF THE POWER OF ATTORNEY EXECUTED BY THE PETITIONER. ANTONY DOMINIC, J. ------------------------------------ W.P.(C) 294 of 2008 ------------------------------------- Dated: MAY 27, 2008 JUDGMENT The challenge in this writ petition is against Ext.P4 notice issued by the 2nd respondent. 2. Petitioner submits that he is the tenant of a building which was owned by the 4th respondent. The 4th respondent had sought his eviction by filing RCP 9/1997 and invoking sec.11(3) of the Rent Control Act. On the dismissal of the petition he pursued the matter by filing appeal as RCA 118/2000 and that also was dismissed. It is stated that the petitioner continued to pay rent and that the same was accepted till 7.10.2007 as is evident from Ext.P1. 3. In the meanwhile it is stated that in January 2007 Ext.P2 notice of eviction was again issued at the instance of the 4th respondent on the ground of sublease and own occupation, but however, without urging any ground of reconstruction. The landlord did not pursue the matter thereafter. While so, the petitioner received Ext.P3 notice from the 3rd respondent in WP(C) 294 of 2008 2 December 2007, describing himself to be the present landlord and forwarding Ext.P4 notice issued by the 2nd respondent making reference to the report dated 21.12.2007 and informing that the building is in a ruinous state and is likely to collapse at any moment. On this ground, the landlord was called upon to demolish the building. Relying on Ext.P4 notice so received by the landlord, the landlord called upon the petitioner to vacate the premises as per Ext.P3. It is on receipt of Exts.P3 and P4 this writ petition was filed seeking to quash Ext.P4. 4. Learned counsel for the petitioner argued that the report was issued without any instruction and therefore the same was without any basis and in violation of the principles of natural justice. It is also alleged that when the landlord failed to get him evicted from the premises in question, at his instance a complaint by a stranger was got filed before the Corporation itself. Making reference to that complaint , the alleged Ext.P4 notice was issued. It is stated that Ext.P4 discloses a collusion between the stranger complainant, the Town Planning Officer and the landlord and thus it is vitiated by mala fides. It is also urged that none of the WP(C) 294 of 2008 3 provisions of sec.4(11) is attracted and, at any rate, no eviction of the tenant is contemplated in the said provision. 5. Yet another argument that is urged by the learned counsel for the petitioner is that the building is not in a dilapidated condition as is wrongly stated in Exts.P3 and P4 and therefore the proceedings are unwarranted. 6. Lastly, it is urged that even if it is assumed that the proceedings have culminated in Ext.P4, Ext.P4 is issued invoking the powers under sec.4(11) of the Kerala Municipalities Act, only the Secretary could have issued such a notice and not the Town Planning Officer who has issued Ext.P4. It is on these grounds the learned counsel for the petitioner seeks to quash Ext.P4. Learned counsel would also make reference the report submitted by the advocate-commissioner and to canvass for the position that there was nothing to suggest that the building is in a ruinous condition. Counsel would also make reference to the counter affidavit filed by the 3rd respondent in this matter. 7. Yet another document on which the counsel for the petitioner makes reference is the report of the Building Inspector of WP(C) 294 of 2008 4 the Corporation. According to the report, counsel would submit that apart from saying that the building is in a ruinous state, there is nothing to indicate any subjective satisfaction of the officer who conducted the inspection. 8. Learned counsel for the landlord would vehemently canvass for the position that the building is in a ruinous state. He has made extensive reference to the counter affidavit filed, photographs produced, and the report of the advocate commissioner appointed by this court by order dated 15th February, 2008. On this basis,s the learned counsel would support the proceedings Ext.P4. According to him, in view of the decision of this court in Sunder Raj v. Corporation of Cochin - 2001 (1) KLT 536 and Reghunath v. Thiruvalla Municipality - 2004 (3) KLT 75, the report of the Building Inspector deserves acceptance as it discloses satisfaction of the officer concerned about the ruinous state of the building in question. Learned counsel for the Corporation would also canvass for the position that the order has been issued under sec.4(11) after necessary enquiry and the report that has been submitted by the Building Inspector of the Corporation. WP(C) 294 of 2008 5 9. Although several contentions as above have been raised by both sides, I feel that the proceedings culminated in Ext.P4 calls for interference on the short ground that it was not the Secretary of the Corporation who has issued the proceedings. I say this for the reason that both the petitioner and the landlord proceeded on the basis that Ext.P4 is an order issued under sec.4(11). The standing counsel appearing for the Corporation has also confirmed this position. If that be so, sec.4(11) requires the satisfaction of the Secretary and the proceedings to be issued by the Secretary of the Corporation. Evidently a reading of Ext.P4 shows that it was not the Secretary of the Corporation who has issued the proceedings, but it was the Town Planning Officer of the Corporation who has issued the proceedings. If that be so, this is a case where the Secretary, the officer competent to exercise the power under sec.4(11), has not exercised the powers and for that reason Ext.P4 has to be held as one issued by an officer incompetent to issue the same. For that reason itself Ext.P4 deserves to be set aside and I do so. I clarify that I have not pronounced on the correctness or otherwise of the contentions raised by both parties and it will be open to the WP(C) 294 of 2008 6 Secretary of the Corporation to initiate fresh proceedings based on the Building Inspector's report that has been relied on in Ext.P3. Learned counsel for the landlord contended for the position that in the absence of any mala fide, petitioner is incompetent to challenge Ext.P4. I am not in a position to accept this contention either. As already stated, petitioner has a specific case of collusion between the landlord, Corporation officials and the Building Inspector. Though I am not pronouncing on this either, I feel that being a tenant, petitioner is entitled to challenge Ext.P4 as otherwise petitioner will be left in a helpless position and without any remedy available in law. This cannot be the position and therefore I reject the contention raised by the learned counsel for the landlord. For all these reasons the writ petition stands disposed of in the manner as indicated above. ANTONY DOMINIC, JUDGE mt/-