PUTHUKUDY VELAYUDHAN Vs. MADATHIL THAZHATH KANDAN

JUDGEMENT

(1.) THIS appeal is against the judgment of a learned Judge of this Court in O.P.No.1456 of 1967.The petitioner in the writ petition is the appellant before us.He had leased a small plot of land with a hut thereon on monthly rent of Rs.6/ - to the 1st Respondent,a member of the scheduled castes on 5 -2 -1955.It is common ground that the hut was destroyed by fire.The exact date of such destruction does not appear from the records but was certainly before 6 -1 -1965.The 1st Respondent attempted to reconstruct the hut;whereupon,O.S.No.80 of 1964 Munsiff 's Court,Quilandy was filed by the appellant to restrain him by an injunction from such reconstruction.Ex.P1 dated 6 -1 -1965 is the judgment in that suit.It was held therein that the hut belonged to the appellant,and had been leased to the 1st Respondent on a monthly rent of Rs.6/ - and that it had been destroyed by fire.The injunction as prayed for was granted.In disobedience of the injunction the 1st Respondent attempted to reconstruct the hut for which he was directed to be arrested and detained in Civil Prison by order dated 14 -9 -1966.By order of Court dated 16 -11 -1966 certain structures constructed by the 1st Respondent were directed to be demolished and removed.These will be seen from Exs.P5 and P6 produced by the appellant in this appeal,along with C.M.P.No.11362 of 1969,which we have allowed.Ex.P6 further contains an endorsement dated 16 -11 -1966:property delivered after demolishing chamayam.Hence this petition is closed.

(2.) AFTER all these,the 1st Respondent filed an application before the 2nd Respondent under S.5 of Ordinance(2)of 1966,replaced by Act 12 of 1966,( The Scheduled Castes and Tribes Prevention of Eviction Ordinance and Act ).The said petition was allowed by the 2nd Respondent by Ex.P2 order and the same was confirmed on appeal by the 3rd Respondent by Ex.P4 order.The writ petition out of which this appeal arises was to quash these orders.The learned single Judge observed: I am unable to accept the petitioner 's(contention that the 1st Respondent must be taken to have been lawfully evicted from the property pursuant to the decree of the civil court,because the decree does not authorise eviction of the 1st Respondent but was merely one for granting a permanent injunction restraining the 1st Respondent from only putting a new structure on the property.It is therefore not possible to hold that the 1st Respondent must be taken to have been evicted from the property pursuant to a decree of the civil court.Even assuming for the sake of argument that he had been so evicted,such eviction would have been clearly contrary to the provisions contained in S.3 of the Kerala Scheduled Castes 'and Schedules Tribes 'Ordinance 1966(Ordinance 2/1966 ),which was subsequently enacted as Act 12 of 1966. In this view,the learned Judge dismissed the petition.

(3.) THE question then is whether the 1st Respondent was entitled to restoration of possession and whether the impugned orders directing such restoration were lawfully passed.It is useful to extract the material portion of S.5 of Act 12 of 1966(S.5 of the Ordinance being in part materia ).