IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 30TH SEPTEMBER 2008 / 8TH ASWINA 1930 WP(C).No. 21055 of 2008(F) -------------------------- PETITIONER --------------- NEELAKANDAN KARTHA K.V., AGED 70 YEARS, S/O.NARAYANAN KARTHA, KALATHIL VRINDAVANAM, PUKKATTUPADY, EDATHALA P.O. ALUVA, PIN - 683 561. BY ADV. SRI.P.K.IBRAHIM SMT.K.P.AMBIKA SRI.THOMSTINE K.AUGUSTINE SRI.C.N.GOPAKUMAR RESPONDENTS --------------- 1. THE DISTRICT PANCHAYATH, ERNAKULAM REPRESENTED BY ITS SECRETARY, KAKKANAD. 2. THE EXECUTIVE ENGINEER, LOCAL SELF GOVERNMENT DEPARTMENT DIVISION, KAKKANAD, ERNAKULAM, KOCHI-20. 3. THE ASSISTANT EXECUTIVE ENGINEER, LOCAL SELF GOVERNMENT DEPARTMENT DIVISION, EDAPPALLY BLOCK PANCHAYATH, THAMMANAM P.O. ADDL.R4 IMPLEADED AS PER ORDER DATED 21.7.2008 IN I.A.9371/08. ADDL.R4. THE DISTRICT MEDICAL OFFICER (ISM), ERNAKULAM. BY ADV. SRI.C.M.SURESH BABU, SC FOR R1 R2, 3 & 4 BY GOVERNMENT PLEADER SRI A.J.VARGHESE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. -------------------------------------------------------- W.P.(C) 21055 of 2008 -------------------------------------------------------- Dated: SEPTEMBER 30, 2008 JUDGMENT The challenge in this writ petition is against Ext.P5. Ext.P5 is a resolution passed by the 1st respondent Panchayat authorising the Executive Engineer and the Assistant Engineer of the Local Self Government Department to remove the shed put up and occupied by the petitioner in the premises of the District Ayurveda Hospital, Ernakulam. 2. The facts of the case are that Ext.R3(b) is an order issued by the Director of Indian System of Medicine, on 22.3.1995, accepting the recommendation of the District Medical Officer (ISM) and according sanction to the petitioner to open a milma booth in the premises of the hospital, subject to the conditions mentioned therein. It inter alia provides that the structure shall be a temporary one, that an agreement has to be executed and that the WP(C) 21055 of 2008 2 DMO will be empowered to stop functioning of the booth any time, if found necessary. In pursuance to Ext.R3(b), Ext.R3(a) agreement was entered into between the petitioner and the DMO (ISM), Ernakulam, on 5.5.1995 incorporating the conditions of Ext.R3(b). On the strength of the allotment as above, petitioner put up a shed and is running a milma booth since then. Petitioner submits that he has been paying rent and according to him Ext.P3 evidences payment of rent upto March 2009. 3. Even according to the petitioner, some time in 1998, supervision and management of the hospital had been handed over to the District Panchayat. Presently the hospital building has been demolished and a new building is under construction. According to the learned Government Pleader, apart from the hospital, there is commercial space also in the building under construction. Subsequently, on 26.3.2008, the District Panchayat passed Ext.P5 resolution challenged in this writ petition. 4. It is stated by the Government Pleader that the resolution was forwarded to the Local Self Government WP(C) 21055 of 2008 3 Department and following its receipt, the 3rd respondent issued Ext.P7 letter dated 21.6.2008 to the 2nd respondent, requiring him to expedite action for the removal of the shed put up by the petitioner based on the allotment referred to earlier. It would appear that the 2nd respondent, in turn, placed the matter before the DMO, who considered the matter and passed Ext.P8 order dated 5.7.2008. After narrating the background and concluding that the shed would be an obstruction to the construction now undertaken, the DMO ordered that the functioning of the milma booth should stopped forthwith. Thereafter by Ext.R3(c) dated 5.7.2008, the DMO forwarded Ext.P8 to the 2nd respondent and when further action was taken on the basis of Ext.P8, this writ petition was filed. 5. Learned counsel for the petitioner would challenge Ext.P5 contending that the District Panchayat has no jurisdiction in this matter as the petitioner had not entered into any lease or other arrangement with the District Panchayat. It is also contended that at the time when Ext.P5 was passed, there was absolutely no material available before the 1st respondent to conclude that the WP(C) 21055 of 2008 4 existence of the booth would cause any obstruction to the construction that is undertaken. Lastly, it is also pointed that Ext.P5 is vitiated for violation of the principles of natural justice as the petitioner was not put on notice before it was passed. 6. On the other hand, the learned Government Pleader, referring to the statement filed by respondents 2 and 3 and the documents referred to therein would contend that it was only subject to the conditions mentioned in Ext.R3(a) and (b) that a portion of the land was allotted to the petitioner to put up a temporary structure for opening a milma booth. According to him, as can be seen from Exts.P7 and P8, it was only on account of the fact that the shed was causing obstruction to the construction that the impugned proceedings were initiated. It is also contended that rights, if any, that the petitioner has, are only in terms of Exts.R3(a) and (b) and going by these two documents, it is the satisfaction of the DMO which is material. It is contended that the DMO was satisfied that the petitioner's shed needs to be removed for the smooth progress of the construction. It is stated that for these reasons the WP(C) 21055 of 2008 5 impugned proceedings are liable to be upheld. 7. I have considered the submissions made by both sides. 8. As can be seen from the documents made available, it was based on Exts.R3(a) and (b) that the petitioner was allotted a portion of the land within the premises of the District Ayurveda Hospital, Ernakulam, for setting up a milma booth by putting up a temporary structure. Therefore whatever rights the petitioner has, have to be traced to Exts.R3(a) and (b). These documents show that the petitioner's entitlement to continue the occupation of the temporary structure would only be until the DMO passes an order requiring him to remove the same. Ext.P8 in this case is the order that was passed by the DMO in terms of clause (6) of Ext.R3(a) agreement. True, the petitioner has a case that the DMO had no material to come to the decision that the shed needs to be removed. It is also his contention that he is not exercising his discretion, but was acting at the dictates of respondents 1 to 3. 9. A reading of Ext.P8, in my view, does not lend support to the position canvassed by the learned counsel WP(C) 21055 of 2008 6 for the petitioner and, as admitted by the petitioner himself, the supervision and management of the hospital has been handed over to the District Panchayat since 1998. It is also the admitted case that the construction is going on. Therefore the 1st respondent is perfectly justified in passing Ext.P1 which was forwarded to the Local Self Government Department. It is thereupon that Ext.P7 letter was written by the 3rd respondent to the 2nd respondent, who, in turn, took up the matter before the DMO. It was accepting the recommendation of the 2nd respondent that the DMO issued Ext.P8 and this fact is evident from Ext.P8 itself. If that be so, I am not persuaded to endorse the contention of the learned counsel for the petitioner that the DMO surrendered his independent discretion and was acting purely guided by the recommendation of the others. As already noticed, it is the decision of the DMO which is material and as Ext.P8 shows that the DMO has concluded that the existence of the booth will cause obstruction to the construction undertaken, the petitioner cannot claim that he should be permitted to continue occupation of the other. I am also inclined to think that once on the WP(C) 21055 of 2008 7 materials available before him, the DMO has come to such a conclusion, this Court will be justified in sitting in appeal over the same and decide to the contrary. 10. Learned counsel for the petitioner contended for the position that his rights under Art.21 of the Constitution of India have been violated by the impugned proceedings. I can not agree with the counsel. The rights, if any of the petitioner, have to be traced to Exts.R3(a) and (b) and viewed in this context, I am not in a position to accept the contention that any of his fundamental rights has been violated. 11. On an overall consideration of the matter, I am not persuaded to interfere with Ext.P5. However, I record the submission of the learned Government Pleader that in addition to the hospital space under construction, there is provision for commercial space also. If that be so, it will be open to the petitioner also to apply for allotment of a suitable space, in which case, I have no reason to think that the authorities will not consider the same with the sympathy that it deserves. WP(C) 21055 of 2008 8 12. Learned counsel for the petitioner seeks two weeks time for removing all his materials from the shed in question. This request seems to be quite reasonable and I direct that the petitioner will be given two weeks time from today for the removal of his materials. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE mt/-