Harris.T.K vs Greater Cochin Development ...
2023 Latest Caselaw 2156 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
          THE HONOURABLE MR. JUSTICE GOPINATH P.
 FRIDAY, THE 10TH DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944
                  WP(C) NO. 4542 OF 2023
PETITIONER/S:

         HARRIS.T.K, AGED 42 YEARS
         S/O AN GILLATH ABOOBACKER, T.K HOUSE,
         CHANDERA,
         POST MANIYEKAT, TRIKARIPUR VIA,
         KODAKKAD, KASARAGAOD, PIN - 671310
         BY ADVS.
         THAYYIB SHA P.S.
         NABIL KHADER

RESPONDENT/S:

    1     GREATER COCHIN DEVELOPMENT AUTHORITY
          REPRESENTED BY THE SECRETARY, KADAVANTHRA P.O,
          ERNAKULAM, PIN - 682020
    2     ACCOUNTS OFFICER(REVENUE)
          GCDA, KADAVANTHRA P.O, ERNAKULAM, PIN - 682020
          SRI. PHILIP T. VARGHESE - SC, GCDA
     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 10.02.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 WP(C) NO. 4542 OF 2023                    2




                                 JUDGMENT

Petitioner has approached this Court being aggrieved

by Ext.P5 notice issued to the petitioner by the Greater

Cochin Development Authority (the GCDA').

2. The petitioner is a tenant under the GCDA. Ext.P5

notice has been issued to the petitioner, essentially

requiring the petitioner to ensure that the petitioner's

business must be confined to the area allotted to him under

Ext.P.1 licence agreement and directing that all

encroachments into common areas and any illegal

extensions etc. must be removed. It is the case of the

petitioner is that Ext.P5 has not been preceded by any show

cause notice. Reference is made in this regard to Clause IV

(9) of Ext.P1 lease deed where, according to the petitioner, it

is stipulated that any action for eviction of the petitioner

shall be in accordance with the provisions contained in

Kerala Public Building (Eviction of unauthorised

Occupants) Act, 1968 (hereinafter referred to as 'the Act').

3. Learned counsel appearing for the petitioner

places reliance on the judgment of the Hon'ble Supreme

Court in Cantonment Board, Meerut and Another V.

Afzal [2019 KHC 6479], to contend that any action taken

by the respondent without notice to the petitioner is clearly

illegal and arbitrary.

4. Learned counsel appearing for the respondents

would submit that Ext.P5 notice is only a notice requiring

the petitioner to ensure that he conducts the business in the

premises allotted to him in terms of Ext.P1 lease deed, that

is, by confining his occupation to the area in respect of

which Ext.P1 lease deed is executed. It is submitted that

Ext.P5 cannot be construed as an action under the

provisions of the Act. It is submitted that the petitioner has

no right, as perExt.P1, to occupy any area other than the

area allotted to him. Reference is made to Clause II (19) of

Ext.P1 in this regard.

5. Having heard the learned counsel appearing for

the petitioner and the learned counsel appearing for the

respondents, I am of the view that there is considerable

merit in the contention taken by the learned counsel

appearing for the respondents. Clause IV (9), which has

been relied on by the learned counsel for the petitioner

reads as follows:-

''9. If any of the covenants on the lessee's part herein contained has not been performed or observed or if it is discovered that his deed has been obtained by suppression of any fact or by misstatement, misrepresentation or fraud or if there has been in the opinion of the Lessor whose decision shall be final, any breach by the Lessee or any person claiming under or through his if any of the covenants or conditions obtained herein, then and in any such case it shall be lawful for the Authority notwithstanding any waiver of any previous cause or right of re-entry upon the said Shop Room C-

1102 hereby demised to exercise the powers conferred on the Secretary under Kerala Public Building (Eviction of unauthorized Occupants) Act, 1968 and to re-enter upon the demised premises and thereupon this demise shall absolutely determine without prejudice to the right of action of the Authority in respect of the breach of any of the Lessee's covenants herein contained and the Lessee shall be responsible for all the consequences resulting on accounts to such action and the Lessee shall be liable to pay the expenses incurred by the Authority on this account.''

A reading of the said Clause makes it clear that action under

the provisions of the Act is for the purposes mentioned

therein. Ext.P5 cannot be constructed in any manner to be

an action under the provisions of the Act. It only requires the

petitioner to keep his activities confined to the area allotted

to him in terms of Ext.P1 lease deed. A reading of Ext.P1

and, in particular, Clause II.(19) thereof makes it clear that

the petitioner has no right to occupy any open space, and

the entrance to the demised premises must always be free

from all construction/obstructions. I am, therefore of the

view that the reliefs sought in the writ petition, which is to

quash Ext.P5 cannot be granted . The judgment of the

Supreme Court in Contonment Board (supra) relates to

the stoppage of unauthorised constructions. The Supreme

Court has taken the view that such notice and order must

comply with the principles of natural justice. There can be

absolutely no quarrel whatsoever with the proposition laid

down by the Supreme Court in the decision mentioned

above. However, since I have already found that Ext.P5

cannot be construed to be an action against the petitioner

either under the provisions of the Act or otherwise and since

Ext.P.5 only requires the petitioner to confine his activities

to the area allotted to him, there cannot be any dispute that

such instructions given to the petitioner need not be

preceded by any show-cause notice. The petitioner has

absolutely no right, under the terms of Ext.P1, to occupy any

space other than the area allotted to him. Therefore, even if

the principles of natural justice were complied with, the

petitioner cannot establish that he is entitled to occupy any

area other than the area allotted to him. Therefore,

absolutely no prejudice is caused to the petitioner by the

issuance of Ext.P5. Futility or lack of prejudice is a ground to

refuse relief even when a person complains of a violation of

Natural Justice. In M.C. Mehta v. Union of India (1999) 6

SCC 237 it was held:-

'22. ... We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the courts can, in exercise of their "discretion", refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma [State Bank of Patiala v. S.K. Sharma, (1996) 3 SCC 364 : 1996 SCC (L&S)

717] , Rajendra Singh v. State of M.P.

[Rajendra Singh v. State of M.P., (1996) 5 SCC 460] that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived.' In Board of Mining Examination and Chief Inspector of

Mines v. Ramjee, (1977) 2 SCC 256, it was held:-

"Natural justice is no unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt -- that is the conscience of the matter." (emphasis is mine)

I am clear in my mind that a person in permissive

occupation of certain premises belonging to the GCDA

cannot, at his whims and fancies, occupy other areas,

including public spaces and common areas and then be

heard to contend that action can be taken against him only

in accordance with the principles of Natural Justice. The

writ petition fails, and it is accordingly dismissed.

sd/-

GOPINATH P.

JUDGE ajt

APPENDIX OF WP(C) 4542/2023

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE LEASE AGREEMENT DATED 28/09/2021 EXECUTED BETWEEN THE PETITIONER AND 1ST RESPONDENT Exhibit2 P2 THE TRUE COPY OF THE REGISTRATION CERTIFICATE DATED 21/03/2022 Exhibit P3 TRUE COPY OF THE LICENCE DATED 07/10/2022 ISSUED BY THE CORPORATION OF COCHIN Exhibit4 P4 THE TRUE COPY OF THE REGISTRATION CERTIFICATE DATED 01/09/2022 Exhibit5 P5 THE TRUE COPY OF THE ORDER DATED 03/02/2023