IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 25TH FEBRUARY 2010 / 26TH MAGHA 1931 WP(C).No. 4795 of 2009 (U) ------------------------- OS.85/2009 of I ADDL.M.C., ERNAKULAM .................... PETITIONERS: --------------- 1. THE KERALA HIGH COURT ADVOCATES' ASSOCIATION,E.R.NO.931/2004, REP; BY ITS SECRETARY HIGH COURT BUILDINGS, ERNAKULAM, KOCHI-31. 2. THE KERALA HIGH COURTS ADVOCATES ASSOCIATION-CHAMBER SOCIETY, E.R.NO.383/08,HIGH COURT BUILDINGS, ERNAKULA, KOCHI-31. 3. M/S GEO FOUNDATION & STRUCTURES (P)LTD- ALPHA PLASA, K.P.VALLON ROAD, ERNAKULAM, KADAVANTHARA, KOCHI-20. BY ADV. MR.G.SHRIKUMAR MR.K.V.SOHAN RESPONDENTS: --------------- 1. BABBALAN, S/O GOVINDAN KARTHA, KAMMANOTTU, PATTIMATTOM.P.O. 2. A.G.CHANDRASEKHARAN, S/O.GOVINDAN NAIR, AMBALAPPARAMBIL HOUSE, WEST VENGOLA, P.O.PERUMBAVOOR. ADV. SRI.K.V.SADANANDA PRABHU FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 4795 of 2009(U) APPENDIX PETITIONERS' EXHIBITS: EXT.P1: PLAINT IN O.S.NO.85/2009 FILED BY THE RESPONDENTS DTD. 17.1.2009. EXT.P2: AFFIDAVIT AND PETITION FILED AS I.A.NO.483/2009 IN O.S.NO.85/2009 DTD.17.1.2009. EXT.P3: ORDER PASSED BY THE MUNSIFF COURT, ERNAKULAM DTD.19.1.2009. EXT.P4: ORDER IN C.R.P.NO.65/2009 DTD. 2.2.2009. EXT.P5: OBJECTION FILED BY THE PETITIONERS IN I.A.NO.483/2009 IN O.S.NO.85/2009 DTD.3.2.2009. EXT.P6: GOVERNMENT ORDER G.O(RT) NO.2519/2006 DTD. 2.11.2006. EXT.P7: CONSENT LETTER ISSUED BY THE HIGH COURT OF KERALA DTD.18.10.2006. EXT.P8: BUILDING PERMIT ISSUED BY THE CORPORATION OF COCHIN DTD. 4.10.2008. EXT.P9: SANCTION ORDER ISSUED BY THE HON'BLE CHIEF JUSTICE OF KERALA DTD/ 30.10.2008 ALONG WITH THE COVERING LETTER OF THE REGISTRAR GENERAL OF THE HIGH COURT DTD. 6.11.2008. EXT.P10: SHOW CAUSE NOTICE ISSUED BY THE SECRETARY OF THE COCHIN CORPORATION DTD.5.11.2008. EXT.P11: LETTER ISSUED BY THE SECRETARY, COCHIN CORPORATION ALLOWING TO PROCEED WITH THE CONSTRUCTION DTD. 6.11.2008. EXT.P12: PROGRAM LETTER OF THE WORK BY THE HON'BLE CHIEF JUSTICE OF INDIA DTD. 8.11.2008. EXT.P13: NEWSPAPER REPORTS PUBLISHED IN MALAYALA MANORAMA DAILY DTD. 9.11.2008. EXT.P14: NEWSPAPER REPORTS PUBLISHED IN MATHRUBHUMI DAILY DTD. 9.11.2008. EXT.P15: NEWSPAPER REPORTS PUBLISHED IN DESHAHIMANI DAILY DTDE. 9.11.2008. EXT.P16: NEWSPAPER REPORTS PUBLISHED IN HINDU DAILY DTD. 9.11.2008. (CNTD...2) WP(C).No. 4795 of 2009(U) ::2:: EXT.P17: NOTICE ISSUED BY THE SECRETARY, COCHIN CORPORATION DTD. 22.11.2008. EXT.P18: LETTER SENT BY PETITIONER NO.1 TO THE SECRETARY, COCHIN CORPORATION DTD.26.11.2008. EXT.P19: EXPLANATIONS GIVEN BY PETITIONER NO.1 BEFORE THE SECRETARY TO THE CORPORATION DURING THE HEARING DTD. 10.12.2008. EXT.P20: ORDER PASSED BY THE SECRETARY, COCHIN CORPORATION DTD. 18.12.2008. EXT.P21: INTERIM ORDER IN WP.(C).NO.38072/2008 PASSED BY THIS HON'BLE COURT DTD. 23.12.2008. EXT.P22: ORDER IN I.A.NO.483/2009 IN O.S.NO.85/2009 DTD. 9.2.2009. EXT.P23: PRINTED NOTICE DTD. 21.11.2008 RESPONDENTS' EXHIBITS: EXT.R1(a): LETTER FROM THE COLLECTOR IN L9-64584/08 DTD.17.11.2008. EXT.R1(b): LETTER NO.F1-21/95 DTD. 3.11.2008 FROM SUPDT ENGINEER, PWD TO THE CORPORATION OF KOCHI. EXTR1(c): LETTER FROM REGIONAL TOWN PLANNING OFFICER TO THE CORPORATION OF KOCHI IN A4-3844/08 DTD. 11.12.2008. // TRUE COPY // P.A TO JUDGE. “C.R” HARUN-UL-RASHID, J. ----------------------------------- W.P.(C).No.4795 of 2009 --------------------------------- Dated this the 25th day of February, 2010 J U D G M E N T The writ petition is filed under Article 227 of the Constitution of India challenging Ext.P22 order passed by the 1st Additional Munsiff Court, Ernakulam in I.A.No.483 of 2009. The writ petitioners are the Kerala High Court Advocates’ Association, Kerala High Court Advocates’ Association Chamber Society and M/s Geo Foundation & Structures (P) Ltd. They are the defendants in O.S.No.85 of 2009 pending before the Munsiff Court, Ernakulam. I.A.No.483 of 2009 is a petition filed under Section 91 of the Code of Civil Procedure seeking leave of the court to institute the suit. By the impugned order, the learned Munsiff allowed the petition and the leave initially granted on 19.1.2009 is made absolute. 2. Ext.P1 is the plaint filed along with Ext.P2 petition for leave. Suit is filed seeking the following reliefs: W.P.(C).No.4795 of 2009 2 “i) To pass a judgment and decree, declaring that the defendants have no right to carry on with the construction work in the scheduled property more commonly known as the Ram Mohan Palace. ii) To issue an order of injunction restraining the defendants or any body under them from trespassing the scheduled property. iii) To issue a mandatory injunction to undo the wrong committed on the scheduled property by the defendants. 3. The material averments in the plaint are stated in paragraphs 3, 4, 6, 7, and 9 of the plaint. In paragraphs 3 to 6 it is averred that the plaintiffs personally saw some activities of digging the scheduled property heavily, presumably with a view to effect some construction work; that on enquiry the plaintiffs had understood that the 3rd petitioner/3rd defendant contractor is engaged by the 1st and 2nd petitioners/1st and 2nd defendants and a multi storied Chamber Complex for advocates under the 1st petitioner/1st defendant is proposed to be constructed at the site and that further enquiries made by the plaintiffs clearly revealed that the defendants had encroached the Government land. In paragraph 3 it is also pleaded that they have no right, title and W.P.(C).No.4795 of 2009 3 permission and they have no plan and licence from the competent authorities. In paragraph 5 of the plaint it is further averred that the Secretary of the 1st petitioner/1st defendant Association had submitted an application for permission to construct a building, declaring falsely that an extent of 1 acre 10 cents of land is in the possession of the 1st petitioner/1st defendant. In paragraph 6 it is averred that the Government on its part had not sanctioned any land either on registry or on lease to the 1st petitioner/1st defendant and that the petitioners/defendants are rank trespassers over the Government land. In paragraph 7 it is stated that the Government on its part gave sanction only to effect construction of the Chamber Complex on the site where the old Advocates’ Association building was located, probably as a prelude to enable the 1st petitioner/1st defendant to move appropriate applications in that behalf. In the same paragraph it is stated that with the malicious intention to grab the Government property the first defendant Association instead of complying with the statutory requirements, simply trespassed the adjoining area on its west and further stated that obviously, the present plot encroached by the W.P.(C).No.4795 of 2009 4 defendants is not the plot earmarked for the Association by the Government of Kerala and that the 1st and 2nd petitioners/1st and 2nd defendants are rank trespassers. In paragraph 9 it is pleaded that the conduct of the defendants amount to wrongful acts affecting public property and the public is left with no other remedy to protect the wrongful act on the public property and hence the suit is filed under Section 91 of the Code of Civil Procedure with the leave of the court. 4. The material averments extracted above would show that the plaintiffs proceeded on the basis that the 1st petitioner/1st defendant Association had trespassed over a portion of the old High Court compound and started construction in the site without permission from the authorities. According to the plaintiffs the defendants are rank trespassers of the land and their intention is to grab the Government land and by force they are making constructions in the site. It is also stated that the defendants have no right, title and permission and they have no plan and licence from the competent authorities for making construction. Along with the plaint, plaintiffs produced 5 documents which include photocopy of W.P.(C).No.4795 of 2009 5 the order of the Secretary of Corporation of Cochin dated 5.11.2008, application dated 26.7.2008 filed by the 1st petitioner/1st defendant before the Corporation of Cochin seeking building permit and order of the Government of Kerala dated 2.11.2006 in G.O.(Rt).No.2519/6/Home. 5. The suit was filed on 17.1.2009. Application for leave filed as I.A.No.483 of 2009 was supported by an affidavit. The application for leave and the affidavit are marked as Ext.P2. The affidavit is a very short affidavit which does not show any averments stating any reason for leave. The only sentence pleaded which is material regarding grant of leave is ‘in view of the public cause involved the plaintiffs files the present suit in order to prevent the wrongful act affecting the public.’ In the affidavit it is stated that various averments contained in the plaint may be read as part of the affidavit. The learned Munsiff granted permission to the plaintiffs to institute a suit under Section 91(b) of the Code of Civil Procedure. Ext.P3 is the order passed by the learned Munsiff on 19.1.2009 granting leave. Consequently, suit is numbered as O.S.No.85 of 2009. The court passed the order finding that there are prima facie materials to W.P.(C).No.4795 of 2009 6 grant leave under Section 91 of the Code of Civil Procedure. The court issued summons. On getting summons, the defendants preferred civil revision petition before this Court as C.R.P.No.65 of 2009 challenging the order of the learned Munsiff granting leave. This Court disposed of the C.R.P.No.65 of 2009 by order dated 2.2.2009 at the admission stage without issuing notice to the respondents. This Court directed the learned Munsiff to pass appropriate orders after hearing the revision petitioners, either making the leave absolute or vacating/revoking the leave initially granted and shall proceed with the suit only in case the leave granted is made absolute. This Court also observed that the revision petitioners shall be at liberty to file objections, if any, objecting the grant of leave under Section 91(1)(b) of the Code of Civil Procedure and further issued directions that the objections shall be filed positively within two days and that on such objections being filed, the court below shall consider the objections and pass appropriate orders. Ext.P4 is the order passed by this Court in C.R.P.No.65 of 2009. 6. In the civil revision petition this Court is called upon to examine the legality of the order passed by the learned Munsiff in W.P.(C).No.4795 of 2009 7 granting leave to institute the suit. Pursuant to the order of this Court in the C.R.P, the writ petitioners who are the defendants in the suit filed objections within the time fixed by this Court and produced documents marked as Exts.B1 to B11. Those documents and other documents are produced before this Court as Exts.P6 to P21 in this writ petition. The learned Munsiff heard the case on 9.2.2009 and passed orders allowing the petition for leave and held that the leave granted on 19.1.2009 is made absolute. Learned Munsiff held that at this stage what the plaintiffs have only to prove is a prima facie case and that on going through the averments and documents produced by both sides it is clear that the plaintiffs had made out a prima facie case. It is also observed that “since the plaintiffs had satisfied that there is an arguable and debatable case, I am inclined to grant leave under Section 91(1)(b) of the Code of Civil Procedure.” The order is produced and marked as Ext.P22. I have examined Ext.P22 order. It is seen that neither the contentions of the defendants in their objections was considered nor there is discussion and appreciation of the documents produced by them as Exts.B1 to B11 for reference. W.P.(C).No.4795 of 2009 8 This Court issued positive directions to the learned Munsiff in paragraphs 3 and 5 of Ext.P4 order that on such objections being filed the court below shall consider the same and pass appropriate orders by making the leave granted absolute or by vacating/revoking the leave initially granted and then proceed with the suit only if the leave is made absolute. I have examined Ext.P22 order. Ext.P22 order does not reflect consideration of the matter as directed by this Court. There is no discussion nor findings are recorded dealing with the objections raised against the grant of leave. In paragraph 4 of the order there is a single sentence which reads thus: “On going through the documents produced by the petitioners as well as the order passed by the Kochi Corporation on 18.12.2009, revoking the permission would show that the plaintiff has succeeded in proving the prima facie case.” It cannot be disputed that the learned Munsiff again stick on to the position that the documents produced by the petitioners/plaintiffs shows that there is arguable and debatable case for the plaintiffs and that a prima facie case has been made out by the plaintiffs for granting leave. The extracted portion W.P.(C).No.4795 of 2009 9 would go to show that the learned Munsiff had not taken into consideration the objections raised by the objectors nor chosen to examine the documents produced by them in support of their serious objections. In the light of the above said facts, it is clear that the order passed by the learned Munsiff granting leave is proceeded on the basis of plaint averments alone. 7. Now, I shall examine whether this is a case where leave granted is to be made absolute or not. Ext.P5 is the objection filed by the Advocates' Association as counter to the application for leave. Petitioners/defendants denied the allegation that they have encroached over any portion of the land in the High Court compound or that they are making constructions without valid permit and approved plan. According to them the property belongs to the Government of Kerala and the property is in the possession and enjoyment of the High Court of Kerala. The land wherein the 1st petitioner Association is constructing the building is a portion of the land in the occupation of the 1st petitioner Association. The 1st petitioner Association was in occupation of the old Association building and appurtenant land which was in the use of the petitioner Association for the last W.P.(C).No.4795 of 2009 10 more than 6 decades i.e., from the date of formation of the Travancore-Cochin High Court on 7.4.1949 and thereafter till 2006 when the Kerala High Court was shifted to the new building constructed in the adjacent compound. The Government of Kerala by a cabinet decision has accorded permission to the petitioner Association to construct a multi storied Chamber Complex in the land in the High Court compound in occupation of the Association. Ext.B1 produced along with the objections is the Government Order dated 2.11.2006 (marked as Ext.P6 in the writ petition) whereby the Government accorded permission to construct a multi storied Chamber Complex in the premises of the High Court compound wherein the old High Court building is located. Ext.B2 is the letter of consent and NOC issued by the High Court stating that the High Court has no objection in putting up the multi storied chamber complex for the members of the Association in the premises of the old High Court building under its occupation. Based on Exts.B1 and B2 it is averred that the Association submitted requisite application for the issuance of a building permit and approved plan before the Corporation of Cochin. Ext.B3 is the building permit issued by the Corporation. W.P.(C).No.4795 of 2009 11 Approved plan was also issued to the petitioner Association. Ext.B4 is the order passed by the Honourable Chief Justice based on the building permit and approved plan issued after placing the matter before the Building committee consisting of only judges. Ext.B4 order was passed by the Honourable Chief Justice after considering Exts.B1, B2 & B3 and the resolution passed by the Building Committee. Honourable Chief Justice granted sanction to the Kerala High Court Advocates Association to commence the construction of the Chamber Complex at the proposed site subject to the condition that the built up area shall be limited to 31 cents satisfying the norms given in the Building Rules. 8. In paragraph 12 of Ext.P5 objection it is stated that when the Association made all preparations to proceed with the construction based on the documents referred to above, the Secretary of the Cochin Corporation issued a show cause notice dated 5.11.2008 directing the petitioner Association to show cause as to why the building permit shall not be cancelled. The show cause notice is produced by the objectors as Ext.B5. The same document was produced by the plaintiffs along with the plaint. The 1st defendant Association had filed a statement in W.P.(C).No.4795 of 2009 12 reply to Ext.B5 notice dated 5.11.2008. The Corporation after taking into consideration the explanation offered by the first defendant Association and after taking note of the orders referred to including the order passed by the Honourable Chief Justice and after having satisfied that the petitioners have requisite permission from the authorities to construct the Chamber Complex, passed Ext.B6 order permitting the first defendant Association to proceed with the construction. The plaintiff produced Ext.B5 show cause notice dated 5.11.2008. It is not known why they have not produced Ext.B6 communication issued by the Corporation after considering the objections to Ext.B5 show cause notice which is dated 6.11.2008. The suit was filed only on 17.1.2009. It is also stated in the objections that the work commenced on 8.11.2008 and the Honourable Chief Justice of India inaugurated the commencement of the work. It is also averred in the objection that at the instance of some persons who are inimical to the Association, with malafide intention, the Corporation issued a fresh notice on 22.11.2008 for personal hearing and subsequently passed Ext.P22 order dated 18.12.2008 revoking the permit granted to the Association. W.P.(C).No.4795 of 2009 13 Ext.B10 produced in the suit is the order passed by the Corporation of Cochin. Ext.B11 is the interim order passed by this Court in W.P.(C).No.38072 of 2008 staying the order of the revocation of the permit. In the objection it is prayed that the order passed by the learned Munsiff is liable to be revoked and further prayed for dismissal of the application for leave with compensatory cost. 9. The objection filed is supported by documents marked as Exts.B1 to B11. Ext.B1 is the Government Order, B2 is the letter of consent issued by the High Court, B3 is the building permit issued by the Corporation, B4 is the order passed by the Honourable Chief Justice of the High Court of Kerala, B5 is the show cause notice, B6 is the order of the Corporation accepting the explanation offered to the show cause notice and permitting the petitioner Association to carry on with the construction. Ext.B10 order subsequently passed by the Corporation was stayed by this Court in W.P.(C).No.38072 of 2008 which was also produced and marked as Ext.B11. All these documents would ex-facie show that the defendants are not rank trespassers as alleged in the plaint, that they are not encroachers of the W.P.(C).No.4795 of 2009 14 Government land and that they have started construction on the basis of permission granted by the authorities. The allegations that the defendants have no right, title and possession nor they have plan and licence for construction are without any basis and the allegations on the face of it are unfounded. For the purpose of taking a decision as to whether grant of leave can be granted in a given case, it is the duty of the court to examine the contentions of the defendants especially when there is a specific direction issued by this Court to pass orders on merits. The documents produced by the defendants would show that the allegations made in the plaint are baseless and are alleged without any bonafides. 10. Learned counsel for the respondents/plaintiffs submitted that for the grant of leave the court has to look into the plaint and other materials produced by the plaintiffs alone, in order to satisfy itself whether a prima facie case is made out by the plaintiff or not. According to him Exts.P2 to P21 produced before this Court which includes the documents produced before the Munsiff Court by the defendants are irrelevant so far as the enquiry relating to leave is concerned. According to the learned W.P.(C).No.4795 of 2009 15 counsel the averments in Ext.P1 plaint alone need be looked into. In Ext.P1 plaint it is stated that defendants have no right, title or interest over the plaint schedule property nor do they possess approved plan or licence for making any construction in the property. It is also alleged in the plaint that the scheduled land is a Government land and the defendants had trespassed over the same and by doing so the defendants have by their conduct committed wrongful acts affecting the public. The basic and important allegations in the plaint are controverted by filing a detailed objection with supporting documents to show that the construction is made in the compound of the High Court under permission from the Government, which is the paramount title holder and that the High Court is in possession and enjoyment of the property. The request of the Association was considered, considering the long cherished desire of the members of the first defendant Association to have a Chamber Complex in the High Court compound. 11. In support of the contentions that the plaint allegations and materials produced by the plaintiffs alone need be looked into, the counsel for the respondents brought to the notice W.P.(C).No.4795 of 2009 16 of this Court decisions reported in Mulchand Basarmal v. Devigir Motigir (AIR 1936 Sind 179), Swami Paramatmanand Saraswati and Another v. Ramji Tripathi and Another (1974 (2) SCC 695), Charan Singh and Another v. Darshan Singh and Others (1975(1) SCC 298), Ambrish Kumar Singh v. Raja Abhushan Bran Bramhshah and others (AIR 1989 Allahabad 194), P.V.Mathew and Others v. K.V.Thomas and Others (AIR 1983 Kerala 5), S.S.Bhagat and Others v. N.S.Ahluwalia (AIR 1978 Delhi 14), R.M.Narayana Chettiyar and Another v. N.Lakshmanan Chettiyar and Others (AIR 1991 SC 221) and Shavax A.Lal and Others v. Syed Masood Hosain and Others (AIR 1965 AP 143). Most of the decisions cited by the learned counsel are decisions rendered by the court prior to legislative change made in the Code of Civil Procedure (Amendment Act 104 of 1976). I may first refer to the decision reported in R.M.Narayana Chettiyar and Another v. N.Lakshmanan Chettiyar and Others (AIR 1991 SC 221). In that case relying on the decision reported in Swami Paramatmanand Saraswati and Another v. Ramji Tripathi and Another (1974 (2) SCC 695) it was W.P.(C).No.4795 of 2009 17 argued that to see whether the suit falls within the ambit of Section 92, only the allegations in the plaint should be looked into in the first instance. Learned counsel referred to the decision reported in Mulchand Basarmal v. Devigir Motigir (AIR 1936 Sind 179). At page 183 it was held that the nature of the case is to be determined by the plaint and not by the written statement. In Ambrish Kumar Singh v. Raja Abhushan Bran Bramhshah and others (AIR 1989 Allahabad 194) it was held that while granting leave the court is not to decide the rights of the parties, that no right is adjudicated at this stage and court has merely to see whether there is prima facie case for granting leave to institute the suit. In paragraph 11 it is also observed that Section 92 of the Code of Civil Procedure does not contemplate any notice to the proposed defendants before granting leave. Referring to another decision of the same court, the court held that the proceedings under Section 92 of the Code of Civil Procedure are judicial proceedings and the order of the District Judge is a judicial order. The court should pass the order after hearing the defendants. The next decision cited is S.S.Bhagat and Others v. N.S.Ahluwalia (AIR 1978 Delhi 14). W.P.(C).No.4795 of 2009 18 In that case the provision as it stands before the amendment was considered. Act 5 of 1908 was considered in that case. The question decided mainly was as to whether the decision of the Advocate General is administrative or quasi judicial in nature. It was held that the Advocate General has merely to see whether there is or there is not a prima facie case that should be allowed to go to a court of law. The law may therefore be taken to be settled that the order of the Advocate-General is not quasi judicial. In paragraph 20 it was held: “It being firmly established that in exercising the powers vested