IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 22ND MARCH 2007 / 1ST CHAITHRA 1929 RSA.No. 62 of 2007(G) ----------------------------- AS.178/2006 of D.C. & SESSIONS COURT,KOZHIKODE OS.22/2003 of ADDL.M.C.,KOZHIKODE-I .................... APPELLANT/APPELLANT/PLAINTIFF ---------------------------------------------- LIVESTOCK IMPROVEMENT ASSOCIATION, VETERINARY HOSPITAL PREMISES, KOZHIKODE-I, REPRESENTED BY THE ITS PRESIDENT SRI.S.KRISHNAN, AGED 71 YEARS, SON OF LATE A.N.SESHA IYER, `AJANTHA', PUTHIYARA, KOZHIKODE-4, KASABA AMSOM AND KARYAKUNNU DESOM OF KOZHIKODE TALUK. BY ADV. SRI.JACOB ABRAHAM RESPONDENTS/RESPONDENTS/DEFENDANTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION, KOZHIKODE-20, NEDUNGOTTUR AMSOM AND DESOM OF KOZHIKODE TALUK. 2. THE DIRECTOR OF ANIMAL HUSBANDRY, VIKAS BHAVAN, THIRUVANANTHAPURAM. 3. THE DISTRICT VETERINARY OFFICER, VETERINARY HOSPITAL COMPOUND, WAYANADU ROAD, KOZHIKODE-I, KALATHINKUNNU AMSOM AND DESOM OF KOZHIKODE TALUK. 4. THE CHIEF VETERINARY OFFICER, VETERINARY HOSPITAL COMPOUND, WAYANADU ROAD, KOZHIKODE-I, KALATHINKUNNU AMSOM AND DESOM OF KOZHIKODE TALUK. BY GOVERNMENT PLEADER, SRI.S.DILEEP (FOR R1, R2, R3 & R4) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/03/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... R.S.A.No. 62 OF 2007 ............................................ DATED THIS THE 22nd DAY OF MARCH, 2007 JUDGMENT The plaintiff in OS No.22/2003 on the file of Additional Munsiff Court, Kozhikkode is the appellant herein. Respondents are the defendants. Suit was filed seeking a decree for declaration that Ext.A3 cancellation order is illegal and arbitrary and for a permanent prohibitory injunction restraining the respondents from evicting appellant except under due process of law. Though the relief sought for in the plaint was not properly framed, the declaration sought for was that the cancellation of lease under Ext.A2 is null and void and defendants are not entitled to remove plaintiff from the existing premises. The appellant association is running Milma booth in the plaint schedule premises as per sanction granted for 5 years which expired on 30.7.2002. Appellant applied for extension of the period of lease for another 10 years. Plaintiff filed OS No.498/2002, as the period was not extended. After an order of temporary injunction was granted, under Ext.A1 order the period was extended to another 5 years. But as per Ext. A2 order dated 27.11.2002 extension of the period under Ext. A1 R.S.A.No.62 OF 2007 2 order was cancelled. Appellant contended that removal of Milma booth will cause untold sufferings and hardship to the appellant association and they will be forced to find out some other alternatives to reinstate the staff of the booth and they will be rendered jobless. Contending that appellant was forced to file civil suit and Ext.A2 is void as it was unreasonable and unilateral decree was sought for. 2. Respondents in their written statement contended that as per Govt. Order dated 30.7.1997 Government permitted appellant to conduct a milma booth in the veterinary hospital campus for a period of 5 years making it specifically clear that the construction shall be of a temporary nature. The period expired on 30.7.2002. As per Ext.A1 order, Government accorded sanction, extending the period of lease for 5 years. As per Ext.A2 order it was cancelled. Respondents contended that Ext.A2 order is valid and appellant is not entitled to the decree sought for. 3. Learned Munsiff on the evidence of Exts.A1 to A5, B1 to B3 and oral evidence of PW1 and DW1, dismissed the suit holding that Ext.A2 order is not null and void and appellant is not entitled to get either the decree for declaration or injunction. Plaintiff challenged the decree and judgment before District R.S.A.No.62 OF 2007 3 Court, Kozhikode in AS No.178/2006. Learned District Judge on re-appreciation of evidence dismissed the appeal confirming the judgment of the learned Munsiff. The second appeal is filed challenging the concurrent decree. 4. Learned counsel appearing for appellant and learned Govt. Pleader were heard. The arguments of the learned counsel appearing for appellant was that the lease was granted for a period of 5 years in 1997 and after the expiry of the period of lease, on the application filed by the plaintiff, under Ext.A2 order dated 31.7.2002 the period of lease was extended to a further period of 5 years and thereafter Government is not entitled to cancel the order and Ext.A2 order dated 27.11.2002 was passed for extraneous reasons and without hearing appellant and in violation of the relevant rules and therefore it is invalid. Learned counsel also argued that the lease in favour of appellant association was granted as per the provisions of Assignment of Land within Municipal and Corporation Areas Rules, 1995 and Ext.A2 order was passed cancelling Ext.A1 order as provided under the said rules and proviso to rule 17 mandates that before passing such an order, appellant shall be given an opportunity of being heard and as Ext.A2 order was passed without affording that opportunity, it is in violation of the R.S.A.No.62 OF 2007 4 mandatory provision for rule 17 and therefore it is illegal and invalid and courts below should have granted the decree. It was pointed out that the courts below did not consider the relevant aspects in the proper perspective and therefore the decree and judgment are to be set aside. Reliance was placed on the decisions to this court in Alias v. State of Kerala (1994(2) KLT 466) and Ellakkal Service Co-operative Bank v. State of Kerala (1997(2) KLT 85) and it was argued that Ext.A2 order issued is violative of natural justice and therefore it is to be declared invalid. The learned counsel also argued that courts below did not consider the question whether even if there is no subsequent lease, respondents are entitled to forcibly take possession of the property other than by due process of law and after expiry of period of lease respondents can take possession only under the provisions of Kerala Land Conservancy Act. Relying on the decision of the apex court in State of U.P. v. Prasad Singh (1989 (1) KLT short note 42). It was argued that even respondents-state are not placed in a higher or better position and appellant association cannot be dispossessed otherwise other than by due process of law and therefore courts below should have granted the decree. 5. The judgment of the learned Munsiff and learned R.S.A.No.62 OF 2007 5 District Judge show that the case that appellant was granted a lease under the provisions of Assignment of Land within Municipal and Corporation Areas Rules, 1995 was not pleaded or put forth before the trial court or before first appellate court. It is evident from the judgments of the courts below. Before the courts below appellant proceeded on the basis that appellant association is a licencee and not a lessee. The learned counsel appearing for the appellant pointed out that there is specific pleading in the plaint that it is a lease. But, from the judgment of the courts below, it is clear, that was not pressed and instead what was contended before courts below was that it was a licence arrangement and not a lease. It is more clear from the fact that in the first appeal an application was filed for amendment of the plaint to plead that the licence is irrevocable under Section 60(b) of the Easement Act. In such circumstances in the second appeal appellant is not entitled to advance a different case. What ever it be, even if it is taken that the lease was granted by the state as provided under Assignment of Land within Municipal and Corporation Areas Rules, 1995 (hereinafter as Rules), the question is whether Ext.A2 is invalid as it is in contravention of proviso to rule 17. 6. Rule 12 of the Rules provide for lease of land. Under R.S.A.No.62 OF 2007 6 rule 12, land held under lease either, current or time expired, granted under any rule or orders in force at the time of such grant and which do not fall under Rule 5 shall be granted fresh lease in form No.6 as per procedure laid under clauses (a) to (e). Under clause (c) on receipt of the application submitted under clause (a) the Assigning authority shall conduct a personal inspection of the land and under clause (e) the lease granted shall be for a period not exceeding three years and shall be renewed on application. 7. If the lease granted in favour of appellant association in 1997 was under Assignment of Land within Municipal and Corporation Areas Rules as claimed by the appellant, then the period of lease could not have been for more than three years as under clause (e) of rule 12 as the period of lease shall not exceed three years. 8. Sub-rule 2 of Rule 12 provides for renewal of the lease. Under the said rule, the application for renewal of the lease shall be in form no.5 and in renewing the lease the Assigning Authority shall follow the procedure laid down in Clauses (c) and (d) of sub-rule (1) of Rule 12. Sub-rule 3 of rule 12 provides that the renewal of the lease shall be in Form 7. Sub rule 4 of Rule 12 mandates that the period of renewed lease R.S.A.No.62 OF 2007 7 shall not exceed three years. Rule 17 deals with contravention of terms and conditions and resumption of land. Under the said rule any assignment on registry or lease shall be liable to cancellation for contravention of any of the conditions enumerated in the patta and in such cases land shall be resumed. The proviso to rule 17 relied on by the learned counsel for the appellant reads: “provided that the person affected by such cancellation of pattah or lease and resumption of land shall be given an opportunity of being heard in person before passing such orders“. The argument of the learned counsel for the appellant was that Ext.A2 order was passed without hearing the appellant and without affording an opportunity as provided under the proviso and so it is in contravention of rule 17 and hence void. A reading of the plaint shows that Ext.A2 order was not challenged on that ground. The only ground on which Ext.A2 order was challenged reads: “removal of the milma booth will cause untold sufferings and great hardship to the plaintiff association as they will be forced to find out some other alternatives”. The second ground alleged was that they will be jobless apart from the other difficulties caused to the appellant association and appellant will be forced to find out some other alternatives. R.S.A.No.62 OF 2007 8 Case of the appellant was that for these reasons Ext.A2 order dated 27.11.2002 is void. There is no case in the plaint that Ext.A2 was void for violation of proviso to rule 17 or that Ext.A2 order was bad as it was passed without affording an opportunity to appellant for being heard. Even it is taken that Ext. A2 order is passed in violation of the rule 17, rule 18 provides a right of appeal against such an order. Therefore appellant has an efficacious and equal remedy under rule 18 to challenge Ext. A2 order. Hence the suit is impliedly barred. 9. Even otherwise on the facts and circumstances of the case interest of justice does not warrant any interference on the concurrent findings. Ext.A1 order was passed on 31.7.2002. According to the appellant that order was passed under rule 12 of the Rules. It is the further case that under Ext.A2, the lease was renewed. As provided under 12(4) the renewal of the lease shall not exceed three years. Therefore the period of renewed lease granted under Ext.A1 if passed as provided under rule 12 (4) on 31.7.2002 shall expire on 30.7.2005 much before the dismissal of the suit by the trial court. As the case of the appellant was only on the violation of rule 17, when the period of renewed lease itself shall expire on 30.7.2005, if passed as provided under rule 12 of the Rules appellant is not entitled to R.S.A.No.62 OF 2007 9 challenge Ext.A2 order cancelling Ext.A1 order. 10. Then the question is whether plaintiff is entitled to decree for injunction against forcible eviction. The argument of the learned counsel for appellant was that appellant cannot be forcibly evicted other than by due process of law. What was contended in the plaint was that as Ext.A2 is invalid. Appellant cannot be evicted and therefore a decree for permanent prohibitory injunction is to be granted. The relief of injunction is an equitable relief. Learned Munsiff and the learned District Judge, on the facts and circumstances of the case, found that the appellant is not entitled to an equitable relief. On the facts and circumstances of the case I do not find any reason to differ with that finding. There is no merit in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE jp