R.A. Hazeena vs State Of Kerala
2022 Latest Caselaw 1546 Ker

Citation : 2022 Latest Caselaw 1546 Ker
Judgement Date : 15 February, 2022

Kerala High Court

R.A. Hazeena vs State Of Kerala on 15 February, 2022

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

            THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                    &

                 THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

         TUESDAY, THE 15TH DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943

                            WA NO. 155 OF 2022

AGAINST THE ORDER/JUDGMENT IN WP(C) 14403/2021 OF HIGH COURT OF KERALA

APPELLANT/2nd PETITIONER:

            R.A. HAZEENA,
            AGED 50 YEARS
            W/O. LATE K.U . ASHARAF,
            KANJIRATHINGAL HOUSE, CC 6/110 MATTANCHERY KOCHI 682 002,
            ERNAKULAM DISTRICT.
            BY ADVS.
            R.MURALEEKRISHNAN
            V.S.NOWSHAD
            SITHARA.S
            AJEESH S.
            BINU K.B.
            T.M. RESHMY


RESPONDENTS/RESPONDENTS, LEGAL HEIRS OF 1ST PETITIONER:

     1      STATE OF KERALA
            REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT,
            THIRUVANANTHAPURAM,PIN-695 001
     2      ASSISTANT EXECUTIVE ENGINEER,
            IRRIGATION SUB DIVISION, ERNAKULAM, KAKKANAD,
            KOCHI-682 030, ERNKAULAM DISTRICT
     3      ASSISTANT ENGINEER,
            IRRIGATION CANAL SECTION, MATTANCHERY, KOCHI-682 002,
            ERNAKULAM DISTRICT .
     4      DISTRICT COLLECTOR,
            COLLECTORATE ERNAKULAM, CIVIL STATION, KAKKANAD,
            KOCHI-682 030, ERNAKULAM DISTRICT.
 W.A. No. 155/2022            :2:




     5      SHAFREENA,
            AGED 31 YEARS
            D/O. LATE K.U. ASHARAF, AGED 29 YEARS,
            KANJIRATHINGAL HOUSE, CC 6/110, MATTANCHERY,KOCHI-682 002
            ERNAKULAM DISTRICT.
     6      SHAHABAS,
            AGED 29 YEARS
            D/O. LATE K.U. ASHARAF, KANJIRATHINGAL HOUSE, CC 6/110
            MATTANCHERRY , KOCHI 682 002, ERNAKULAM DISTRICT.



            SRI. TEK CHAND, SR. GOVERNMENT PLEADER



      THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15.02.2022, THE

      COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A. No. 155/2022                 :3:




                Dated this the 15rd day of February, 2022.

                                 JUDGMENT

S. MANIKUMAR,CJ.

Appellant, who is the second writ petitioner in W.P.(C) No. 14403

of 2021, challenges the judgment dated 05.01.2022 passed by the writ

court dismissing the writ petition.

2. Before the writ court, writ petitioners have challenged Ext.

P10 proceedings of the Assistant Executive Engineer, Irrigation Sub

Division, Kakkanad, second respondent, dated 18.06.2021, by which

an order of eviction was passed.

3. After hearing the learned counsel for the parties, vide

judgment dated 05.01.2022, writ court dismissed the writ petition,

thus:

9. The petitioners impugn Ext.P10 order issued under Section 5 of the Kerala Public Buildings (Eviction of Unauthorised Occupants) Act, 1968. Against an order under Section 5, the petitioners have a statutory appellate remedy under Section 10 of the Act, 1968. The contention of the petitioners is that Exts.P6, P9 and P10 are passed in violation of the principles of natural justice and hence a writ petition is maintainable in spite of availability of alternate statutory remedy.

10. Ext.P9 order of the District Collector would evidence that the petitioners were heard before passing Ext.P9 order and that Ext.P9

order was passed after hearing the petitioners and after perusing the records. Ext.P10 order would show that the petitioners were issued with notices dated 07.11.2019 and 21.01.2021 under the provisions of the Act, 1968. Therefore, the petitioners cannot be heard to contend that there is violation of the principles of natural justice.

In view of the availability of alternate statutory remedy, this Court is of the firm view that the writ petition is liable to be dismissed. The writ petition is hence dismissed.

4. On 31.01.2022, when the matter came up for admission, we

directed Sri. Tek Chand, the learned Senior Government Pleader, to

ascertain as to whether the appellant was provided with an opportunity

of hearing. Said order reads thus:

" Material on record discloses that no sooner the appeal filed by the appellant against the show cause notice issued under Section 5 of the Kerala Public Buildings (Eviction of Unauthorised Occupants) Act, 1968, was rejected as not maintainable, the Estate Officer i.e., Assistant Executive Engineer, Irrigation Sub Division, Ernakulam has passed Exhibit P10 order directing the appellant to vacate the premises. The said authority has also arrived at a conclusion that the subject building has been unauthorisedly occupied by the appellant. Section 5 of the Kerala Public Buildings (Eviction of Unauthorised Occupants) Act, 1968, reads thus:

"5. Eviction of unauthorised occupants.-- (1) If, after considering the cause, if any, shown by any person in pursuance of a notice under section 4 and any evidence produced by such person in support of the same and after giving him a reasonable opportunity of being heard, the estate officer is satisfied that the building is in unauthorised occupation, the estate officer may, on a date to be fixed for the purpose , make an order

of eviction, for reasons to be recorded therein, directing that the public building shall be vacated by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be published by affixing it on the outer door or some other conspicuous part of the public building.

(2) If any person refuses or fails to comply with the order of eviction within thirty days of the date of its publication under sub-section (1), the estate officer or any other officer duly authorised by him in this behalf may evict that person from, and take possession of, the public building and may, for that purpose, use such force as may be necessary."