P.T.Abdul Razack vs The Koduvally Grama Panchayat
2021 Latest Caselaw 14935 Ker

W.P.(C) No. 7315/2013                     :1:



                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                        PRESENT

                        THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

             THURSDAY, THE 15TH DAY OF JULY 2021 / 24TH ASHADHA, 1943

                                 WP(C) NO. 7315 OF 2013

PETITIONER/S:

              P.T.ABDUL RAZACK
              AGED 45 YEARS
              S/O.USSAIN, MEKKAPRAMBIL HOUSE, KODUVALLY P.O., KOZHIKODE
              DISTRICT.

              BY ADVS.
              SRI.V.G.ARUN
              SRI.T.R.HARIKUMAR

RESPONDENT/S:

      1       THE KODUVALLY GRAMA PANCHAYAT
              KODUVALLY P.O., KOZHIKODE-673572, REPRESENTED BY ITS SECRETARY.

      2       THE SECRETARY
              KODUVALLY GRAMA PANCHAYAT, KODUVALLY P.O., KOZHIKODE-673572.

              ADDL. R3 & R4 IMPLEADED:

      3       KODUVALLY MUNICIPALITY, KODUVALLY PO., KOZHIKODE DISTRICT,

              PIN 673 572.

      4       THE SECRETARY, KODUVALLY MUNICIPALITY, KODUVALLY P.O.,
              KOZHIKODE - 673 572.

              (ADDL. R3 & R4 IMPLEADED AS PER ORDER DATED 15.07.2021 IN W.P.(C)
              No. 7315/2013)

              BY ADVS.
              SRI.K.M.FIROZ
              SMT.M.SHAJNA



       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON      15.07.2021,

      THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No. 7315/2013                 :2:




                    Dated this the 15th day of July, 2021.

                                 JUDGMENT

This writ petition is filed by the petitioner basically challenging Ext.P5

order passed by the Secretary of the Koduvally Grama Panchayat directing

the petitioner to vacate the premises, since he was put in possession of

building No. KP3/783/B without following the provisions of the Kerala

Panchayat Raj Act, 1994 (Act, 1994) and the Kerala Panchayat Raj

(Acquisition and Disposal of the Property) Rules, 2005 ('Rules, 2005' for

short).

2. According to the learned counsel for the petitioner, the petitioner

was put in possession of the building and has paid the demand raised by the

Secretary of the Grama Panchayat and therefore, the eviction of the

petitioner without following the principles of natural justice and without

affording sufficient opportunity of hearing, is illegal and arbitrary. It was

also submitted that when the petitioner received notice, he has submitted

Ext.P4 objection, but Ext.P5 order of eviction was passed by the Secretary

without taking into account any of the aspects mentioned in Ext.P4 and

further threatened that the Panchayat would be at liberty to take coercive

action, if the petitioner was not vacating the premises. Now the Grama

Panchayat is converted as a Municipality and accordingly, the Municipality

and its Secretary are impleaded as additional respondents through a

separate order.

3. I have heard the learned counsel for the petitioner Sri. Aditya

Rajeev and the learned counsel for the Koduvally Municipality, Sri. K.M.

Firoz, and perused the pleadings and documents on record.

4. When the writ petition was admitted to the files of this Court on

15.03.2013, an interim stay was granted for a period of two weeks, which

was being extended periodically, and finally until further orders on

23.09.2003, and the said order is in force now. It is also clear from Ext.P5

order that the Secretary of the Grama Panchayat has not taken into account

any of the aspects pointed out by the petitioner in Ext.P4 objection to the

notice issued by the Panchayat directing the petitioner to vacate the

premises. It is also discernible from the pleadings and submissions as well

as the order issued by the Secretary of the Grama Panchayat that the

petitioner was put in possession by the Grama Panchayat itself and

therefore, the petitioner can never be treated as an encroacher into the

property of the local body to evict summarily without even providing an

opportunity of hearing, and viewed in that perspective, the Secretary of the

Grama Panchayat was duty bound to provide sufficient opportunity of

hearing to the petitioner before a decision was taken as per Ext.P5 order

dated 01.03.2013. Having failed to do so, I am of the clear opinion that

there is violation of principles of natural justice in passing Ext.P5 order and

is liable to be interfered with by this Court exercising the power of judicial

review under Article 226 of the Constitution of India.

5. In the context, I also place on record the submission made by the

learned counsel for the Municipality relying upon the provisions of the Kerala

Municipality (Acquisition and Disposal of Property) Rules, 2000 ('Rules, 2000'

for short), and especially Rule 11 of Rules, 2000, since the local body is a

Municipality now, which clearly specifies that transfers of the property of the

Municipality through sale, except renewal of licences, rehabilitation of

licensees, granting of lease, letting out on rent, shall either be in public

auction or by inviting tenders.

6. Therefore, I quash Ext.P5 order bearing No. A3-3340/13 dated

01.03.2013 and direct the Secretary of the Koduvally Municipality, as at

present, to take a decision in the matter after considering Ext.P4 reply

submitted by the petitioner, after providing an opportunity of hearing and

attain finality at the earliest and at any rate within one month from the date

of receipt of a copy of this judgment also taking into account the provisions

of Rules 2000, which is akin to the Rules, 2005. Till such time, the interim

order granted by this Court would continue to be in force.

With the above observations and directions, this writ petition is

allowed as above.

sd/-

SHAJI P. CHALY, JUDGE.

Rv

APPENDIX OF WP(C) 7315/2013

PETITIONER'S EXHIBITS

Exhibit P1 COPY OF THE LICENSE AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND THE 2ND RESPONDENT DATED 07/11/2009.

Exhibit P2 COPY OF THE LICENSE AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND THE 2ND RESPONDENT DATED 01/04/2012.

Exhibit P3 COPY OF THE LICENSE NO. B3187/2012-13 DATED 28/04/2012 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

Exhibit P4 COPY OF THE REPLY DATED NIL SUBMITTED BY THE PETITIONER TO THE SHOW CAUSE NOTICE.

Exhibit P5 COPY OF THE NOTICE NO.A3-3340/12 DATED 01/03/2013

RESPONDENTS' EXHIBITS: NIL

/True Copy/

PS to Judge.

rv