IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 17TH FEBRUARY 2011 / 28TH MAGHA 1932 WP(C).No. 3163 of 2011(U) ----------------------------------- PETITIONER: -------------------- A.LAKSHMANAN, H.NO.36/185-1/203, RAJEEV NAGAR, THANAVU, OLAVAKKODE P.O., PALAKKAD. BY ADVS. SRI.S.MADHAVAN NAIR SRI.V.B.PREMACHANDRAN SRI.S.MOHANDAS SRI.K.N.GOVINDANKUTTY MENON RESPONDENT(S): ------------------------- 1. PALAKKAD MUNICIPALITY, PALAKKAD, REP. BY ITS SECRETARY.PIN-689 001 2. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVT.DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001 R1 BY ADVS. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP R2 BY GOVERNMENT PLEADER SRI. K.R. DEEPA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SMT C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO.3163 OF 2011 -------------------------------------------- Dated this the 17th day of February, 2011 JUDGMENT The petitioner had been conducting blacksmithy works in a shed put up in purambokku land at Olavankkode, Palakkad District, for 14 years. In the year 2004, the petitioner was dispossessed from the said property belonging to the first respondent and the shed in question was destroyed. Thereupon, the petitioner approached the Kerala State Human Rights Commission and that ultimately resulted in Ext.P1 order carrying a direction to the municipality to examine the feasibility of leasing out the land not exceeding 2 cents to the petitioner on fair rent and on such suitable terms and conditions. The said order was forwarded to the Secretary of the Local Self Government Institutions to issue appropriate directions to the Palakkad Municipality in the said behalf and the petition was accordingly closed. Thereupon, the petitioner approached the first respondent for getting land in terms of Ext.P1 order. Aggrieved by the inaction on the part of the first respondent despite Ext.P1 order, the W.P.(C) NO.3163/2011 2 petitioner approached this Court by filing W.P.(C).No. 9137/2007. The said Writ Petition was disposed of as per Ext.P2 judgment granting the petitioner liberty to submit fresh application before the municipality pointing out alternate sites for leasing out to him in terms of Ext.P1. Subsequently, the petitioner has submitted such a representation before the first respondent. After considering the said representation, Ext.P3 order was passed intimating the petitioner that his request for leasing out 2 cents of land near Kalmandapam and in between Manali-Mangavu road could not be allowed. It is challenging Ext.P3 that this Writ Petition has been filed seeking for issuance of a writ of mandamus commanding the respondents to lease out a small strip of land in Palakkad Municipal area to enable the petitioner to carry out his black smithy works for his livelihood. 2. At the very outset, it is to be stated that the sine qua non for issuance of a writ of mandamus is the existence of a duty on the respondents and a corresponding right in the petitioner to demand the performance of that duty. However, the petitioner did not able to establish any legal right and also a corresponding duty in the matter on the respondents. Evidently, the petitioner was an illegal encroacher into the land belonging to the first respondent. At the same time, it is evident that W.P.(C) NO.3163/2011 3 as per Ext.P1, the Municipality was directed to examine the feasibility of leasing out the land not exceeding 2 cents to the petitioner on fair rent and on such suitable terms and conditions. It is taking note of the said direction that this Court, as per Ext.P2 judgment, granted liberty to the petitioner to file a fresh application in terms of Ext.P1. As already noticed hereinbefore, the only direction issued as per Ext.P1 is to examine the feasibility of leasing out the land not exceeding 2 cents to the petitioner on fair rent and on such suitable terms and conditions. Being a person who was in illegal occupant of the land belonging to the first respondent, as a matter of fact, he cannot seek any direction to the municipality to lease out the land. No provision has been brought to my notice by the petitioner in support of his claim for getting land on lease, as a matter of fact. Based on the direction in Ext.P1 as also in Ext.P2, application of the petitioner to get leasing of land in two places specifically pointed out in his application was considered. However, it is evident from Ext.P3 that after such consideration, the said request of the petitioner was rejected on valid reasons. I do not find any reason to interfere with Ext.P3 especially in view of the failure on the part of the petitioner to establish any legal rights. I am of the view that in such circumstances, this Court cannot issue a writ W.P.(C) NO.3163/2011 4 of mandamus commanding the respondents to lease out certain extent of land to the petitioner to enable him to carry out his black smithy works. At the same time, it is evident from Ext.P1 that the Kerala Human Rights Commission has directed the first respondent Municipality to examine the feasibility of leasing out the land not exceeding 2 cents to the petitioner on fair rent and on such suitable terms and conditions. Ext.P1 has become final. Even at the time of consideration of Ext.P2, the respondents did not make any objection. In view of the said position obtained in this case, I am of the view that the respondents are bound to consider the said issue in terms of Ext.P1. In view of Ext.P1, the first respondent shall consider the feasibility of leasing out the land, expeditiously, in accordance with law. It is made clear that this Court has not made any observation regarding the merit of the claim of the petitioner for getting land on lease. This Writ Petition is disposed of , accordingly. (C.T. RAVIKUMAR, JUDGE) spc /true copy/ P.A. to Judge. W.P.(C) NO.3163/2011 5 C.T. RAVIKUMAR, J. JUDGMENT W.P.(C) NO.3163/2011 6 September, 2010