Narayanan K vs Nileshwar Municipality
2021 Latest Caselaw 11260 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

    THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943

                      WP(C).No.41424 OF 2016(C)


PETITIONER:

               NARAYANAN K.
               AGED 62 YEARS, S/O. KUTHIRUMMAL AMBUNHI,
               KANICHIRA, NELESHWAR P.O, KASARGOD DISTRICT.

               BY ADV. SRI.A.K.MADHAVAN UNNI

RESPONDENTS:

      1        NILESHWAR MUNICIPALITY
               REPRESENTED BY ITS SECRETARY,
               P.O NILESHWAR, KASARGOD 671 314.

      2        CHAIRMAN
               NELESHWAR MUNICIPALITY, NILESHWAR P.O,
               KASARGOD PIN 671 314.

      3        STATE OF KERALA
               DEPARTMENT OF LOCAL SELF GOVERNMENT INSTITUTIONS,
               THIRUVANANTHAPURAM 695 001.

               R1 BY SRI.M.SASINDRAN, SC, NILESHWAR MUNICIPALITY

               R3 BY SRI.M.R.DHANIL, GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD          ON
08.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.41424 OF 2016(C)

                                   -2-



                               JUDGMENT

Dated this the 8th day of April 2021

This writ petition is filed by the petitioner

challenging Ext.P15 order passed by the Secretary

of the Nileshwaram Municipality - the 1st

respondent herein. As per Ext.P15, petitioner was

imposed with a fine of Rs.18,21,150/- on the

ground that, petitioner has unauthorisedly

occupied an extent of 3642.3 m2 of property

situated in Survey No.449/2 of Nileshwaram

Village. Infact the issue started by issuing

Ext.P11 notice to the petitioner dated 04.11.2016

presumably petitioner has submitted Ext.P12 reply

objecting to the imposition of the fine and

pointing out that, petitioner was put in

possession as per the lease arrangement entered

into by and between the petitioner and the

Nileswaram Panchayath, which was succeeded by the

Nileswaram Municipality. Anyhow, the objection was WP(C).No.41424 OF 2016(C)

not acceptable to the Secretary of the

Municipality, who in turn has again issued Ext.P13

notice directing the petitioner to remit an amount

of Rs.18,21,150/-. Anyhow petitioner again

submitted Ext.P14 reply, however the Secretary of

the Municipality after stating that the objection

filed by the petitioner is not acceptable affirmed

the fine amount as specified above. It is thus

challenging the action of the Municipality, the

first relief is sought to Ext.P15. Petitioner has

also a contention that petitioner has submitted an

application for renewal of the lease and sought

direction to consider the application submitted by

the petitioner for that purpose.

2. There is no counter filed by the

respondent Municipality.

3. Infact there are two guiding provisions

under the Kerala Municipality Act, 1994, to sort

out the issues. One is Section 215, which reads WP(C).No.41424 OF 2016(C)

thus:-

215. Power of Municipality to acquire and dispose of property.- A Municipality may in the manner prescribed, acquire any property such as land or building within or outside its Municipal area or dispose of any of its properties with the prior approval of the Government for providing any arrangement or facility for a public purpose.

(2)(a) A Municipality may construct commercial or other buildings and let them out to the public who need them on licence and may charge such fees as it may fix for the use and occupation of the same, in the manner prescribed.

Provided that after the said period, a licence may be renewed subject to such terms and conditions as may be fixed at that time.

(c) In all cases except renewal of licence or rehabilitation of a licensee, licence shall be granted only by public auction or tender.

(3) Every licence under sub-section (2) shall contain terms and conditions governing the use and occupation of the building or room or space therein and the rate and time of payment of fees and such terms and conditions shall be reduced in writing in the form of an agreement in stamp paper of the appropriate value.

(4) No building or room or space let out under sub-section (2) shall be sub-let by the licensee to any person nor the nature of use changed without the prior approval of the Municipality.

Provided that the Municipality may at the instance of a licensee transfer the licence to any other person subject to such terms and WP(C).No.41424 OF 2016(C)

conditions as it may deem fit to impose and upon such transfer, it shall be deemed to be a fresh licence for all purposes.

(5) Where at any time it appears to the Secretary that any building, room or space let out to any person under sub-section (2) has been sub-let, he shall by order, immediately cancel the licence issued to such person and direct the person or persons in use and occupation of the building, room or space, as the case may be, to vacate within such time as may be specified in the order.

Provided that the Secretary shall, before issuing an order cancelling the licence and evicting the user or occupier give notice to such person requiring him to show cause within a reasonable time to be specified in the notice, why such an order should not be made.

(6) Where an order issued under sub- section (5) is not complied with within the time specified therein, the Secretary shall cause such person or persons to be removed from the building, room or space with the assistance of police and close down the building, room or space as the case may be, and thereupon all properties found in such premises shall, belong to the Municipality and shall be disposed of and the proceeds credited to the municipal fund.

(7) Every person to whom a licence has been issued under sub-section (2) shall pay without demand the licence fee and other charges at the rate specified in the agreement within such time as may be specified therein.

(8) Where any licensee defaults payment of licence fee for a period exceeding the period covered by the deposit made in terms of the licence, the Secretary shall, by notice, in writing, require the defaulter to remit the WP(C).No.41424 OF 2016(C)

dues together with such penalty or interest as provided in the agreement within seven days of service of such notice and in case of failure, he shall immediately cause the premises to be closed down temporarily and the person or persons in occupation shall be got removed with the assistance of police or otherwise.

(9) Notwithstanding the closure of the premises under sub-section(8) the licensee shall continue to be user and occupier of the premises and shall be responsible for the safe custody of the belongings therein, but he shall not break open the premises and re-enter therein and if he does so, he shall be deemed to have committed an offence under section 380 of the Indian Penal Code (Central Act 45 of 1860).

(10) Where the Secretary closed down a premises under sub-section (8), he shall, by notice, direct the licensee to clear off the dues within such time as may be specified in the notice.

(11) Where the licensee remits the dues as required in the notice under sub- section(10), the Secretary shall immediately put him in physical possession of the premises and if he fails to clear of the dues the Secretary shall cancel the licence forthwith and the order canceling the licence shall be communicated to him and if, for any reason, the order cannot be communicated to him in person it shall be published in the premises closed down under sub-section(8) which shall be deemed to be a sufficient notice.

(12) Where the Secretary has cancelled a licence under sub-section(11) he shall, with previous notice to the licensee and after public notice, dispose of by action or otherwise the belongings found in the premises closed down on the day notified, and the WP(C).No.41424 OF 2016(C)

proceeds thereof shall be adjusted towards the amount due from the licensee together with other charges and expenses in connection with the sale and the balance, if any, shall be returned to him. If the sale proceeds are not sufficient to defray the dues together with other charges or expenses in connection with the sale, the balance shall be recoverable from the licensee as if ti were an arrear of property tax.-

4. Second is Section 376, which reads thus:-

376. Occupation of poramboke without licence.- (1) Where any person without the previous sanction of a Municipality occupies any land belonging to it or vested in it or under its control, he shall, from time to time, pay in respect of such ooccupation such sums by way of penalty as may be demanded by the Municipality, subject to such limits as may be prescribed.

Provided that before demanding any sum under this sub-section the Municipality shall give such person an opportunity to show cause against such demand.

(2) Where any person makes default in the payment of any such amount the Magistrate having jurisdiction over the Municipal area may, on application by the Secretary, recover the same in the same manner as if it were a fine imposed by the Court.

(3) (a) Any person unauthorisedly occupying any land for which he is bound to pay a penalty under sub-section (1) in respect of such occupation, may be summarily evicted by the Secretary and any crops or other product raised on the land shall be liable to forfeiture and any building or structure erected or anything deposited thereon, shall also, if not removed by him after such written notice as the Secretary may deem reasonable, be liable to forfeiture and any property so WP(C).No.41424 OF 2016(C)

forfeited shall be disposed of by the Secretary in accordance with such procedure as the Council may direct.

(b)Any eviction under this sub-section shall be by serving a notice on a person reputed, to be in occupation or his agent, requiring him, within such time as the Secretary may deem reasonable after receipt of the said notice, to vacate the land and if such notice is not obeyed, by removing or deputing a subordinate to remove any person who may refuse to vacate the same and if the officer removing any such person shall be resisted or obstructed by any person, the Secretary may report the fact to the collector and thereupon the Collector shall hold a summary enquiry into the case and if satisfied that the resistance or obstruction still continues, may issue a warrant for the arrest of the said person and, on his appearance may send him, with a warrant, in such form as may be prescribed, for imprisonment in the civil jail for such period, not exceeding thirty days as may be necessary to prevent the continuance of such obstruction or resistance.

Provided that no person so committed for imprisonment under this section shall be liable to be prosecuted under section 183, 186 and 188 of the Indian Penal Code, 1860 (Central Act 45 of 1860) in respect of the same facts.

5. Apart from the same, the issue is also

guided by the Kerala Municipality (Acquisition and

Disposal of Property) Rules 2000 and the Kerala

Municipality (Penalty for Unauthorised Occupation

of Poramboke)Rules, 1998.

WP(C).No.41424 OF 2016(C)

6. The case put forth by the petitioner is

that, eventhough the lease arrangement expired,

petitioner continued in the premises and the

Municipality has even accepted the lease rent of

the petitioner in the year 2014. Therefore,

according to the petitioner, there is an illegal

occupation of any premises of the Municipality by

the petitioner.

7. On the other hand learned counsel for the

Municipality submitted that, since the lease

agreement expired the petitioner is in

unauthorised occupation and erstwhile Nileswaram

Panchayath has issued Ext.P7 notice dated

12.12.2007, whereby petitioner was informed that

petitioner has encroached into other lands other

than lease hold rights and the petitioner is

continuing in illegal occupation and therefore,

since the lease arrangement has already expired,

petitioner can be termed to be an illegal WP(C).No.41424 OF 2016(C)

occupant.

8. I have heard learned counsel for the

petitioner Sri.A.K.Madhavan Unni and the learned

counsel appearing for the Municipality

Sri.M.Sasindran and perused the pleadings and

materials on record.

9. The subject issue raised by the petitioner

no doubt revolve around various factual

circumstances, since the contentions raised by the

petitioner is stoutly opposed by the learned

counsel appearing for the Municipality. According

to the Municipality, the lease arrangement expired

some time in 2007 and thereafter petitioner was

in illegal occupation and therefore the

Municipality is entitled as of right to impose

fine in terms of Section 376 read with the Rules

specified above.

10. It is also submitted that the fine was

imposed only in terms of the provisions of law. WP(C).No.41424 OF 2016(C)

Therefore, the petitioner cannot attribute any

illegality against the Secretary of the

Municipality in imposing fine, since the

petitioner is illegally occupying the property of

the Municipality.

11. I have gone through the notices issued and

the order passed by the Secretary of the

Municipality imposing fine and I find that though

opportunity was provided to the petitioner to

submit objection, petitioner was not heard before

the fine was confirmed by the Secretary of the

Municipality. The provisions of law discussed

above and the Rules shows the manner in which an

eviction is to be carried out by the Municipality.

Anyhow, since a heavy fine of more than Rs.18lakhs

is imposed on the petitioner, it was only

appropriate on the part of the Secretary of the

Municipality to have provided the petitioner with

an opportunity of hearing before finally taking a WP(C).No.41424 OF 2016(C)

decision in regard to the imposition of the fine.

Therefore, I think it is only appropriate that the

writ petition is disposed of with suitable

directions.

12. In that view of the matter, I quash

Exts.P13 and P15 order/ demand and direct the

Secretary of the Municipality to consider Exts.P12

and P14 objection submitted by the petitioner and

attain finality to the same, after providing an

opportunity of hearing to the petitioner, at the

earliest, and at any rate, within one month from

the date of receipt of a copy of this judgment.

I make it clear that, I am not expressing any

opinion on the merits of the matter, but the

Secretary of the Municipality may have to take a

decision referring to the provisions of law

discussed above.

Sd/-

SHAJI P.CHALY hmh JUDGE WP(C).No.41424 OF 2016(C)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT-P1 TRUE COPY OF RECEIPT ISSUED BY THE PANCHAYATH DATED 31.3.1992.

EXHIBIT-P1(A) TRUE COPY OF RECEIPT ISSUED BY THE PANCHAYATH DATED 6.12.2004.

EXHIBIT-P1(B) TRUE COPY OF THE RECEIPT ISSUED BY THE PANCHAYATH DATED 22.12.2005.

EXHIBIT-P2 TRUE COPY OF THE RECEIPT DATED 15/10/2008 ISSUED BY THE VILLAGE OFFICER.

EXHIBIT-P2(A) TRUE COPY OF THE RECEIPT DATED 25/9/2009 ISSUED BY THE VILLAGE OFFICER.

EXHIBIT-P2(B) TRUE COPY OF RECEIPT DATED 17/12/2011 ISSUED BY THE VILLAGE OFFICER.

EXHIBIT-P2(C) TRUE COPY OF THE RECEIPT DATED 8/8/2012 ISSUED BY VILLAGE OFFICER.

EXHIBIT-P2(D) TRUE COPY OF THE RECEIPT DATED 8/7/2013 ISSUED BY THE VILLAGE OFFICER.

EXHIBIT-P2(E) TRUE COPY OF THE RECEIPT DATED 31/5/2014 ISSUED BY THE VILLAGE OFFICER.

EXHIIBIT-P3 TRUE COPY OF LICENSE DATED 28/2/1977.

EXHIBIT-P3(A) TRUE COPY OF LICENSE DATED 11/12/1980

EXHIBIT-P3(B) TRUE COPY OF LICENCE DATED 5/10/1987.

EXHIBIT-P3(C) TRUE COPY OF THE LICENSE DATED 18/5/1990.

EXHIBIT-P4 TRUE COPY OF THE PROFESSIONAL TAX RECEIPT DATED 10/2/2012 ISSUED BY PANCHAYATH.

WP(C).No.41424 OF 2016(C)

EXHIBIT-P4(A) TRUE COPY OF THE PROFESSIONAL TAX RECEIPT DATED 28/2/2013.

EXHIBIT-P4(B) TRUE COPY OF PROFESSIONAL TAX RECEIPT DATED 24/10/2014.

EXHIBIT-P4(C) TRUE COPY PROFESSIONAL TAX RECEIPT DATED 20/2/2015.

EXHIBIT-P5 TRUE COPY OF EVICTION ORDER /NOTICE ON 13/06/2007 ISSUED BY THE PANCHAYATH.

EXHIBIT-P6 TRUE COPY OF REPLY DATED 21.06.2007 SUBMITTED BY PETITIONER.

EXHIBIT-P7 TRUE COPY OF THE ORDER DATED 12.12.2007 ISSUED BY THE PANCHAYATH.

EXHIBIT-P8 TRUE COPY OF REPLY DATED 24/12/2007.

EXHIBIT-P9 TRUE COPY OF NOTICE DATED 12.02.2016 ISSUED BY THE FIRST RESPONDENT.

EXHIBIT-P10 TRUE COPY OF REPLY DATED 23.02.2016 SUBMITTED BY PETITIONER.

EXHIBIT-P11 TRUE COPY OF THE NOTICE DATED 04.11.2016 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT-P12 TRUE COPY OF THE REPRESENTATION DATED 16.11.2016.

EXHIBIT-P13 TRUE COPY OF THE NOTICE DATED 01.12.2016 ISSUED BY THE FIRST RESPONDENT.

EXHIBIT-P14 TRUE COPY OF REPRESENTATION DATED 14.12.2016 SUBMITTED BY THE PETITIONER.

EXHIBIT-P15 TRUE COPY OF ORDER /NOTICE DATED 14.12.2016 ISSUED BY THE FIRST RESPONDENT.

RESPONDENT'S/S EXHIBITS: NIL