The petitioners have filed this writ petition seeking the following reliefs :
i) declare that Ext.P9 notice is void, inoperative and unconstitutional;
ii) declare that Exts.P11 to P14 are void and inoperative, the same being illegal, unreasonable, arbitrary and unjust;
iii) issue a writ in the nature of certiorari or any other appropriate writ, direction or order calling for the records leading to Exhibits P11 to P14 and quash the decision reflected in Exts.P11 to P14 to evict the petitioners under Kerala Panchayath Raj (Removal of Encroachment and imposition and Recovery of Penalty for Unauthorised Occupation) Rules 1996 ;
iv) issue such other writ, direction or order as deemed fit.
2. The petitioners had been conducting small businesses from shop rooms owned by the 2nd respondent Panchayat, according to them, for the past three decades. They were evicted from the shop rooms for reconstruction of the building. They contend that, they had been assured of being provided with shop rooms in the newly constructed building. As per Ext.P1 agreement, they were permitted to put up temporary sheds in a parcel of land owned by the Panchayat, from which they were permitted to conduct their businesses. They are in occupation of the said sheds, till date. While so, they were served with Ext.P9 notice directing them to show cause why they should not be evicted under the provisions of the Kerala Panchayat Raj (Removal of Encroachment and Imposition and Recovery of Penalty for Unauthorised Occupation) Rules, 1996 (hereinafter referred to as 'the Rules” for short). The petitioners submitted their objections to Ext.P9 by Ext.P10. It is contended that, without considering their objections, the impugned orders Exts.P11 to P14 have been passed under the provisions of the Rules, for eviction of the petitioners. It is contended that, Exts.P11 to P14 are absolutely uncalled for and unsustainable in law.
3. A counter affidavit has been filed by the 3rd respondent.
According to the 3rd respondent, the petitioners were allowed to occupy the vacant land owned by the Panchayat, purely on humanitarian grounds. They were allowed to construct temporary sheds on the land as per Ext.P1 agreement. It is specifically agreed in Ext.P1 that, they would have to vacate the premises as and when requested by the Secretary of the Panchayat. They were also assured that, upon construction of the shopping complex, they may be given shop rooms on the basis of the conditions stipulated by the Panchayat. The petitioners had constructed the sheds, agreeing to the various conditions in Ext.P1. Therefore, it is contended that they are not entitled to challenge Exts.P11 to P14 that are issued in accordance with the provisions of law.
4. According to Adv.Sri.George Varghese Perumapallikuttiyil who appears for the petitioners, they are not in unauthorised occupation of the property of the Panchayat, attracting the provisions of the Rules. They have been granted permission to put up the sheds as per Ext.P1 agreement. After completion of the shopping complex, the Panchayat demanded an interest free deposit of ₹20,00,000/- as a condition for allotment of the new shop rooms. The petitioners being small traders were not in a position to meet the said demand and therefore, they have not been allotted shop rooms in the new shopping complex. Referring to the terms of Ext.P1, it is contended that, the petitioners are lessees of the Panchayat property. Therefore, action can be initiated against them only under the Kerala Panchayat Raj (Acquisition and Disposal of Property) Rules, 2005. For the said reason also, it is contended that the impugned proceedings are liable to be set aside.
5. The learned Senior Counsel Sri.K.P.Satheesan, who appears for respondents 2 and 3 on the other hand points out that, the petitioners are persons who had resisted the action of the Panchayat in seeking vacant possession of the shop rooms occupied by them. However, they lost in all the courts, and were evicted. In spite of the above, on humanitarian grounds they were permitted to occupy the vacant land owned by the Panchayat and to conduct businesses from temporary sheds put up by them, subject to the terms of Ext.P1 agreement. The Panchayat has not been collecting ground rent from the petitioners from July 2013 onwards. The land in question is required for public use. Other than the four petitioners herein, all other occupants have vacated the premises. The Panchayat is not able to put the property to any use because of the interim order of stay granted by this Court. Since the petitioners are bound by the terms of Ext.P1 agreement, it is contended that the present contentions advanced are not available to them. The learned Senior Counsel therefore seeks dismissal of the writ petition.
6. Heard. It is not in dispute that the petitioners were put in possession of the land of the Panchayat subject to the conditions in Ext.P1. Condition No.2 of Ext.P1 stipulates that, upon completion of the new shopping complex, shop rooms would be allotted to the existing traders, subject to the terms and conditions that may be decided upon by the Panchayat Committee. As per Clause No.3, it is stipulated that, rent at rates to be fixed by the Panchayat/Government would have to be paid and three months rent would have to be paid as advance. Clause No.6 further provides that, as and when demanded by the Secretary of the Grama Panchayat, the shed shall be demolished and removed. Therefore, the petitioners had occupied the premises and started their businesses, agreeing to the above terms in Ext.P1 agreement.
7. It is not in dispute that, after the new shopping complex was constructed, the petitioners had not complied with the terms stipulated by the Panchayat Committee and therefore, they were not allotted any shop rooms. Some of them had approached this Court by filing W.P. (C).No.7368/2012. Petitioners 1 and 3 were parties to the said writ petition. The said writ petition was disposed of by Ext.P7 judgment. As per Ext.P7 judgment, this Court has held that, since the demand for deposit made by the Panchayat was objected to on the ground that the same was exorbitant, it was open to the petitioners to submit representations to the Panchayat specifying the amounts offered by them. The Panchayat was directed to fix an appropriate amount after considering such representations. The counsel on both sides agree that, pursuant to Ext.P7, no representations were submitted. According to the counsel for the Panchayat, in spite of the above, the amount demanded as deposit had been reduced initially to ₹11 lakhs and later on fixed at ₹5 lakhs. However, the petitioners had not deposited the amount. Nor did they participate in the auction that was conducted later on. It is clear from the above conduct of theirs that, the petitioners were not serious in getting the rooms in the newly constructed shopping complex allotted to them.
8. It was in the above circumstances that the Panchayat initiated proceedings for getting vacant possession of the premises occupied by them. It is admitted that, the Panchayat has not been collecting ground rent from the petitioners since July 2013. Ext.P9 show cause notice was issued, to which the petitioners have responded by Ext.P10. It is after considering Ext.P10 that Exts.P11 to P14 orders have been issued. The contention of the counsel for the petitioners, as already noticed above is that, the provisions of the Rules are not applicable to them and that, they have to be proceeded against under the provisions of the Kerala Panchayat Raj (Acquisition and Disposal of Property) Rules, 2005. The said contention cannot be countenanced for the reason that, the petitioners have specifically agreed in Ext.P1 agreement as per Clause 6 that they would dismantle and remove the shed as and when demanded by the Secretary on behalf of the Panchayat. Having been put in possession of the property subject to the terms of Ext.P1 agreement, it is not open to the petitioners to claim that they are entitled to continue in occupation of the property, indefinitely. Having agreed to the terms of Ext.P1, it is also not open for the petitioners to invoke the discretionary remedy of this Court under Article 226 of the Constitution, contending that they are lessees under the Panchayat. It is not in dispute that, they had been granted only a permission to erect the sheds of the dimensions stipulated by the Panchayat strictly as per the terms of Ext.P1. It is not in dispute that, Ext.P1 agreement was entered into with the object of providing the petitioners with a package of rehabilitation. The petitioners have not taken advantage of the package. Their object is to continue in occupation of the property, indefinitely. Therefore, the only option available to the Panchayat was to invoke the provisions of the Rules for getting vacant possession of the land. I do not find any infirmity in Exts.P11 to P14 proceedings warranting an interference under Article 226 of the Constitution of India.
For the above reasons, this writ petition is dismissed.
Sd/-
K.SURENDRA MOHAN, JUDGE.
AV