Karnataka High Court
Sri. Nagaraju vs The Chief Officer on 10 July, 2018
Author: Aravind Kumar
Bench: Aravind Kumar
- 1 -
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JULY, 2018
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
WRIT PETITION Nos. 26313-26319/2018 (GM-PP)
C/w W.P.Nos.49200-49202/2017, 2790-2819/2017,
11276-11318/2017 & 3419-3420/2018
IN W.P Nos. 26313-26319/2018
BETWEEN:
1. Sri. Nagaraju,
S/o Late Cheluvegowda,
Aged about 55 years,
R/at Ganeshanagara,
Channarayapatna Town,
Hassan District - 573 116.
2. Sri. Narayanagowda,
S/o Late Nanjegowda,
Aged about 65 years,
R/at Kuvempu Nagar,
Channarayapatna Town,
Hassan District - 573 116.
3. Sri. S.N. Dinesh,
S/o Narayanagowda,
Aged about 42 years,
- 2 -
R/at Kuvempu Nagar,
Channarayapatna Town,
Hassan District - 573 116.
4. Sri. K.C. Kumar,
S/o Late Cheluvegowda,
Aged about 45 years,
R/at Ganeshanagara,
Channarayapatna Town,
Hassan District - 573 116.
5. Sri. Mahesha,
S/o Late Krishnappa,
Aged about 51 years,
R/at D. Kalenahalli Road,
Channarayapatna Town,
Hassan District - 573 116.
6. Sri. Vazeer Ahmed,
S/o Late Fakruddin,
Aged about 70 years,
R/at Doddamohalla,
Channarayapatna Town,
Hassan District - 573 116.
7. Sri. Deeparam,
S/o Late Mannaram,
Aged about 74 years,
R/at Vivekanandra,
Channarayapatna Town,
Hassan District - 573 116. ...Petitioners
(By Sri. Vivek Reddy, Sr. counsel for
Sri. Subba Reddy. K.H, Advocate)
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AND:
1. The Chief Officer,
Town Municipal Council,
Channarayapattana,
Channarayapattana Taluk,
Hassan District - 573 116.
2. Town Municipal Council,
Channarayapattana,
Channarayapattana Taluk,
Hassan District- 573 116.
Reptd. by its Chief Officer ...Respondents
(By Sri. C.N. Keshava Murthy, Advocate)
These Writ Petitions are filed under Articles 226 and
227 of the Constitution of India, praying to quash the
impugned eviction notice/ order dated 01.10.2016 passed
by the respondent No.1 vide Annexure - A, A1 to A7 and
etc.,
IN W.P.Nos.49200-49202/2017
BETWEEN:
1. Sri. Adil Pasha,
S/o Abdul Sathar,
Aged about 48 years,
R/at No.61, Ward No.18,
Shanthi Nagar, Bagur Road,
Channarayapatna,
Hassan District - 573 116.
2. Sri. Sanaulla,
S/o Abdul Khayum,
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Aged about 48 years,
R/at Shop No.77,
B.M. Road,
Channarayapatna,
Hassan District - 573 116.
3. Sri. Bore Gowda,
S/o Gowdegowda,
Aged about 58 years,
R/at 3rd Cross,
Shanthi Nagar, Bagur Road,
Channarayapatna,
Hassan District - 573 116. ...Petitioners
(By Sri. Vivek Reddy, Sr. Counsel for
Sri. Subba Reddy. K.H, Advocate)
AND:
1. The Chief Officer,
Town Municipal Council,
Channarayapattana,
Channarayapattana Taluk,
Hassan District - 573 116.
2. Town Municipal Council,
Channarayapattana,
Channarayapattana Taluk,
Hassan District- 573 116.
Reptd. by its Chief Officer ...Respondents
(By Sri. C.N. Keshava Murthy, Advocate)
These Writ Petitions are filed under Articles 226 and
227 of the Constitution of India, praying to quash the
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impugned eviction notice/ order dated 01.10.2016 passed
by the respondent No.1 vide Annexure - A, A1 and A2 and
etc.,
IN W.P.Nos.2790-2819/2017
BETWEEN:
1. K.R. Vajresh Kumar,
S/o K.B. Raju,
Aged about 50 years,
Channarayapattana,
Channarayapattana Taluk,
Hassan District - 573 116.
2. Smt. Chandrakala. S.V,
W/o Padmarajaiah,
Aged about 50 years,
R/at Channarayapatna,
Hassan District - 573 116.
3. Sri. C.T. Rama Rao,
S/o Thimmapaiah,
Aged about 50 years,
R/at Channarayapatna Taluk,
Hassan District - 573 116.
4. Sri. B.M. Keshava Murthy,
S/o Nanjundegowda,
Aged about 44 years,
Occ: Business,
Shop No.31 (Old No.26)
B.M. Road,
Channarayapatna,
Hassan District - 573 116.
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5. Sri. H.L. Varadarajashetty,
S/o H.S. Lingappa Shetty,
Aged about 82 years,
R/at Channarayapatna Taluk,
Hassan District - 573 116.
6. Sri. C.S. Harish,
S/o Srinivasa Murthy,
Aged about 44 years,
R/at B.M. Road,
Near Corporation Bank,
Channarayapatna,
Hassan District - 573 116.
7. Sri. C.N. Manjunath,
S/o C.H. Nagendra,
Aged about 43 years,
Occ: Business,
Shop No.24 (Old No.30)
B.M. Road,
Channarayapatna,
Hassan District - 573 116.
8. Sri. K.R. Sukumar,
S/o Late K.B. Raju,
Since dead on 2009 R/by his
LR K.S. Praveen Kumar,
Aged about 33 years,
Channarayapatna,
Hassan District - 573 116.
9. Sri. C.Y. Krishna,
S/o C.P. Yallanna,
Aged about 39 years,
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Occ: Business,
Shop No.149, B.M. Road,
Channarayapatna,
Hassan District - 573 116.
10. Sri. C.Y. Muralidhar,
S/o C.P. Yallanna,
Aged about 44 years,
Occ: Business,
Shop No.151, B.M. Road,
Channarayapatna,
Hassan District - 573 116.
11. Smt. Meenakshi. S,
W/o Hareesh,
Aged about 46 years,
R/at Gayathri Layout,
Behind Government Hospital,
Channarayapatna,
Hassan District - 573 116.
12. Sri. B.N. Ranganatha
S/o D. Nagaraju,
Aged about 44 years,
Occ: Business,
Shop No.28 (Old No.26),
Channarayapatna - 573 116,
Hassan District - 573 116.
13. Sri. Annatharamaiah,
S/o H.S. Krishna Murthy,
Aged about 64 years,
Occ: Business,
Shop No.148, B.M. Road,
Channarayapatna,
Hassan District - 573 116.
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14. Sri. C.Y. Sathyanarayana,
S/o C.P. Yallanna,
Aged about 44 years,
Occ: Business,
Shop No.125, B.M. Road,
Channarayapatna,
Hassan District - 573 116.
15. Sri. Shashikiran,
S/o C. Nagaraj,
Aged about 51 years,
R/at Mahalakshmi Nilaya,
Mahalakshmi Layout,
Behind TVS Showroom,
Channarayapatna,
Hassan District - 573 116.
16. Sri. Madhusudhan,
S/o Chikkanna,
Aged about 38 years,
Occ: Business,
B.M. Road,
Channarayapatna,
Hassan District - 573 116.
17. Sri. C.N. Nanjunde Gowda
S/o Sanjeeve Gowda,
Aged about 70 years,
Occ: Business,
Shop No.34,
Channarayapatna,
Hassan District - 573 116.
18. Sri. K.R. Vajresh Kumar,
S/o K.B. Raju,
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Aged about 50 years,
Channarayapatna,
Channarayapatna Taluk,
Hassan District - 573 116.
19. Sri. K.S. Ramakrishna,
S/o Subbanna,
Aged about 65 years,
Occ: Business,
R/at Shop No.100,
Channarayapatna,
Hassan District - 573 116.
20. Sri. B.R. Kumar,
S/o Rangappa,
Aged about 48 years,
R/at Gayathri Extension,
Channarayapatna,
Hassan District - 573 116.
21. Sri. Shanthilal Bhandari,
S/o Sevemal Bhandari,
Aged about 65 years,
Occ: Business,
Shop No.143,
Channarayapatna,
Hassan District - 573 116.
22. Sri. Abdul Jameel H.R,
S/o Abdul Razaak,
Aged about 63 years,
Occ: Business,
R/at Shop No.147,
Channarayapatna,
Hassan District - 573 116.
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23. Sri. Abdul Sammad,
S/o Rahanathulla,
Aged about 42 years,
Occ: Business, R/at Shop No.75,
Channarayapatna,
Channarayapatna Taluk,
Hassan District - 573 116.
24. Sri. Veerabhadrappa,
S/o Kencha Verappa,
Aged about 65 years,
R/at Gayathri Extension,
Channarayapatna,
Hassan District - 573 116.
25. Sri. Lakkegowda @ Rajanna,
S/o Nanje Gowda,
Aged about 60 years,
Channarayapatna,
Hassan District - 573 116.
26. Sri. S. Manjunatha,
S/o Srinivas Gowda,
Aged about 49 years,
R/at Bhuvaneshwara Nilaya,
War No.18, Ganesh Nagar,
Channarayapatna Taluk,
Hassan District - 573 116.
27. Sri. C.R. Suresh,
S/o Rajanna,
Aged about 52 years,
R/at Kerebeedi,
Channarayapatna,
Hassan District - 573 116.
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28. Sri. Susheel Pasha,
S/o Abdul Mazed,
Aged about 36 years,
R/at Opp. Chowk Masjid,
Bagur Road,
Channarayapatna,
Hassan District - 573 116.
29. Sri. N.S. Gunashankar,
S/o Singegowda,
Aged about 54 years,
Occ: Business,
R/at Shop No.42,
Channarayapatna,
Channarayapatna Taluk,
Hassan District - 573 116.
30. Sri. Khaleel Ahamed Khan
S/o Khasim Khan,
Aged about 64 years,
Shop No.157,
Channarayapatna,
Hassan District - 573 116. ...Petitioners
(By Sri. Vivek Reddy, Sr. counsel for
Sri. Subba Reddy. K.N, Advocate)
AND:
1. The Chief Officer,
Town Municipal Council,
Channarayapattana,
Channarayapattana Taluk,
Hassan District - 573 116.
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2. Town Municipal Council,
Channarayapattana,
Channarayapattana Taluk,
Hassan District- 573 116.
Reptd. by its Chief Officer ...Respondents
(By Sri. C.N. Keshava Murthy, Advocate)
These Writ Petitions are filed under Articles 226 and
227 of the Constitution of India, praying to quash the
impugned eviction notice/ order dated 01.10.2016 passed
by the respondent No.1 at Annexure - A1, B1, C1, D1, E1,
F1, G1, H1, J1, K1, L1, M1, N1, P1, Q1, R1, S1, T1, W1, X1,
Y1, Z1, AA1, AB1, AC1, AD1, AE1, AF1, AG1, AH1 and etc.,
IN W.P Nos. 11276-11318/2017
BETWEEN:
1. Sri. H.N. Kumar,
S/o H. Nanje Gowda,
Aged about 59 years,
Shop No.138, B.M. Road,
Channarayapatna,
Hassan District - 573 116.
2. Sri. Krishna,
S/o Sri. Govindappa,
Aged about 41 years,
R/at Shop No.90,
Gayathri Complex,
B.M. Road, Channarayapatna,
Hassan District.
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3. Sri. N. Ramesh,
S/o Narayana Shetty,
Aged about 41 years,
Occ: Business,
R/at Shop No.169, B.M. Road,
Channarayapatna,
Hassan District - 573 116.
4. Smt. Rajeshwari,
W/o G.R. Murthy,
Aged about 42 years,
Shop No.191,
Channarayapatna,
Hassan District.
5. Sri. Hari Ram Solanki,
S/o Jassa Ram Solanki,
Aged about 59 years,
R/at Besides Taluk Panchayath,
Channarayapatna,
Hassan District - 573 116.
6. Sri. K.S. Ganesh,
S/o K.P. Sattigowda,
Aged about 44 years,
Shop No.111 (Old No.35/4),
Channarayapatna,
Hassan District - 573 116.
7. Sri. Sharath. S,
S/o late R. Sheshadri,
Aged about 39 years,
R/at Shop No.146,
Channarayapatna,
Hassan District - 573 116.
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8. Sri. N. Girish,
S/o Narayana Shetty,
Aged about 41 years,
Occ: Business,
Shop No.117,
Channarayapatna,
Hassan District - 573 116.
9. Sri. T.S. Mohan
S/o late N. Srinivasa Murthy,
Aged about 43 years,
Shop No.112, Near Old Bus Stand,
Srinivasa Hard Ware, B.M. Road,
Channarayapatna,
Hassan District - 573 116.
10. Smt. Vijayalakshmi,
D/o Putta Ramu,
Aged about 49 years,
Old Bus Stand,
Channarayapatna,
Hassan District - 573 116.
11. Sri. N. Nagendra Rao,
S/o Nanarao,
Aged about 48 years,
R/at Nethaji Road,
Channarayapatna,
Hassan District.
12. Sri. K.R. Rajasekhara,
S/o Ramegowda,
Aged about 58 years,
R/at Nagasamudra Raod,
Channarayapatna,
Hassan District - 573 116.
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13. Sri. Fazlulla Pasha,
S/o Abdul Khodoos,
Aged about 52 years,
R/at Chikkamohalla,
Channarayapatna,
Hassan District.
14. Smt. Leela Bai,
C/o Paramalai Kothari,
Aged about 43 years,
R/at Behind Govt. Hospital,
Channarayapatna,
Hassan District - 573 116.
15. Sri. J.N. Manjunatha,
S/o J.C. Nagaraja,
Aged about 34 years,
R/at Jathenahalli Village,
Baralu Post,
Channarayapatna,
Hassan District - 573 116.
16. Sri. C.S. Sajan Rao,
S/o Subba Rao,
Aged about 36 years,
R/at BDO Officer Road,
Channarayapatna,
Hassan District - 573 116.
17. Sri. B. Prakash Jain,
S/o Babu Lal Jain,
Aged about 39 years,
R/at Old Bus Stand,
Channarayapatna,
Hassan District - 573 116.
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18. Sri. H. N. Lakshmish,
S/o Nanjegowda,
Aged about 44 years,
R/at BDO Officer Road,
Channarayapatna,
Hassan District - 573 116.
19. Sri. N. Girish,
S/o Narayana Shetty,
Aged about 41 years,
Shop No.123, B.M. Road,
Channarayapatna,
Hassan - 573 116.
20. Sri. G.R. Murthy,
S/o Range Gowda,
Aged about 45 years,
R/at Goorumaranahalli,
Channarayapatna,
Hassan - 573 116.
21. Sri. Mazhar Pasha,
S/o Abdul Hameed,
Aged about 33 years,
Shop No.150, B.M. Road,
Channarayapatna,
Hassan - 573 116.
22. Sri. C. Suresh,
S/o Chandreshekar,
Aged about 50 years,
Shop No.153,
Channarayapatna,
Hassan - 573 116.
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23. Sri. C.P. Srinivas,
S/o C.S. Puttanna,
Aged about 54 years,
R/at Kuvempu Complex Par I,
Peetebeedi, Bagur Road,
Channarayapatna,
Hassan - 573 116.
24. Sri. C.H. Ameer Jan,
S/o Abdul Ameed,
Aged about 38 years,
Occ: Business,
Shop No.79, B.M. Road,
Channarayapatna,
Hassan - 573 116.
25. Sri. Ghouse Mouddin,
S/o Haaj Abdul Rahim,
Aged about 41 years,
Occ: Business,
Shop No.144, B.M. Road,
Channarayapatna,
Hassan.
26. Sri. Shakeel Ahamed,
S/o Mohammed Ismail,
Aged about 49 years,
R/at Shanthi Nagar,
2nd Cross, Bagur Road,
Channarayapatna,
Hassan District - 573 116.
27. Sri. K.P. Sharath,
S/o Prakash,
Aged about 48 years,
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R/at Vivekananda Nagar,
Channarayapatna,
Hassan.
28. Sri. Chitti .G,
S/o late G. Reddappa,
Aged about 53 years,
R/at Shop No.93, B.M. Road,
Channarayapatna,
Hassan - 573 116.
29. Smt. Saroja K.S,
W/o late N. Srinivasa Murthy,
Aged about 55 years,
Shop No.128, B.M. Road,
Channarayapatna,
Hassan- 573 116.
30. Smt. Lakshmamma,
Dead by LR
Sri. Nagaraj .L,
Aged about 37 years,
Channarayapatna,
Hassan - 573 116.
31. Sri. Yogeshwar Rao,
S/o V. Shamaiah,
Aged about 75 years,
Shop No.115, B.M. Road,
Channarayapatna,
Hassan- 573 116.
32. Sri. Doraiswamy,
S/o Shivalingagowda,
Aged about 51 years,
R/at Bhirashwera Nilaya,
- 19 -
Ward No.14, Megalakere,
Near Gandhi Circle,
Channarayapatna,
Hassan - 573 116.
33. Sri. H.C. Raju,
S/o Chandriya,
Aged about 45 years,
R/at Madiwalara Street,
Channarayapatna,
Hassan - 573 116.
34. Sri. Doraiswamy,
S/o Shivalingagowda,
Aged about 51 years,
R/at Bhirashwera Nilaya,
Ward No.14, Megalakere,
Near Gandhi Circle,
Channarayapatna,
Hassan- 573 116.
35. Sri. C.B. Rangashetty,
S/o Belurayiah,
Aged about 45 years,
Occ: Business,
Shop No.113, B.M. Road,
Channarayapatna,
Hassan - 573 116.
36. Sri. Rama Rao,
S/o late Thimmappaiah,
Aged about 50 years,
Occ: Business,
Shop No.301,
Channarayapatna,
Hassan - 573 116.
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37. Sri. Noor Ahamed,
S/o Mohammed Jaffer,
Aged about 46 years,
R/at Chikkamohalla,
Channarayapatna,
Hassan.
38. Smt. Shubhalakshmi,
W/o Devikumar,
Aged about 45 years,
Occ: Business,
Shop No.31, B.M. Road,
Channarayapatna,
Hassan - 573 116.
39. Sri. Jawarappa,
S/o Chikkagowda,
Aged about 49 years,
R/at Malenahalli,
Anekere Post,
Channarayapatna,
Hassan- 573 116.
40. Sri. M.R. Manjegowda,
S/o Ranjegowda,
Aged about 45 years,
R/at Malenahalli,
Channarayapatna,
Hassan - 573 116.
41. Sri. C.R. Naveen Kumar,
S/o late C.S. Ramegowda,
Aged about 35 years,
R/at Ganesh Nagar,
Channarayapatna,
Hassan - 573 116.
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42. Sri. C.B. Shivaswamy,
Dead R/by LR
Deepamala,
Aged about 35 years,
R/at Aralapura, Begur Road,
Channarayapatna,
Hassan - 573 116.
43. Smt. Mahalakshmi,
W/o Marigowda,
Aged about 58 years,
R/at Door No.187/3,
Iyengar Vatara,
Gandhi Circle,
Channarayapatna,
Hassan - 573 116. ... Petitioners
(By Sri. Vivek Reddy, Sr. counsel for
Sri. Bhujabalaiah Y.C, Advocate)
AND:
1. The Chief Officer,
Town Municipal Council,
Channarayapattana,
Channarayapattana Taluk,
Hassan District - 573 116.
2. Town Municipal Council,
Channarayapattana,
Channarayapattana Taluk,
Hassan District- 573 116.
Reptd. by its Chief Officer ...Respondents
(By Sri. C.N. Keshava Murthy, Advocate)
- 22 -
These Writ Petitions are filed under Articles 226 and
227 of the Constitution of India, praying to quash the
impugned eviction notice/ order dated 01.10.2016 passed
by the respondent No.1 vide Annexure - A to A42 and etc.,
IN W.P Nos. 3419-3420/2018
BETWEEN:
1. Sri. Shivegowda,
S/o Puttegowda,
Aged about 63 years,
R/at Sri. Lakshmi Channakeshava,
Provision Store,
Old Bus Stand, BM Road,
Channarayapatna,
Hassan District - 573 116.
2. Sri. Nagaraju,
S/o Channaveera Shetty,
Aged about 39 years,
Address: No.1 BM Road,
Ambika Nagar,
Channarayapatna,
Hassan - 573 116. ...Petitioners
(By Sri. Vivek Reddy, Sr. counsel for
Sri. Subba Reddy. K.N, Advocate)
AND:
1. The Chief Officer,
Town Municipal Council,
- 23 -
Channarayapattana,
Channarayapattana Taluk,
Hassan District - 573 116.
2. Town Municipal Council,
Channarayapattana,
Channarayapattana Taluk,
Hassan District- 573 116.
Reptd. by its Chief Officer ...Respondents
(By Sri. C.N. Keshava Murthy, Advocate)
These Writ Petitions are filed under Articles 226 and
227 of the Constitution of India, praying to quash the
impugned eviction notice/ order dated 01.10.2016 passed
by the respondent No.1 vide Annexure - A and A1 and etc.,
These Writ petitions coming on for Preliminary hearing
in 'B' Group this day, the Court made the following:
ORDER
These writ petitions are filed by the occupants of different portions of the premises belonging to and owned by Town Municipal Council, Channarayapatna Taluk, Hassan District (for short 'Municipal Council') challenging the orders of eviction passed under The Karnataka Public Premises (eviction of unauthorized occupants) Act, 1974 (for short 'Act').
- 24 -
2. Under the second round of litigation petitioners are knocking at the doors of this Court calling in question the eviction orders passed by the Estate Officer of Municipal Council have taken recourse to evict the petitioners under the Act by issuing notices under Section 4(1) of the Act. Pursuant to said notices impugned orders came to be passed under Section 5(1) and (2) for evicting the petitioners from their shop premises which is in their respective occupation.
3. Petitioners being aggrieved by the orders of eviction passed by the Competent officer as defined under the Act, had preferred an appeal under Section 10 of the Act by challenging the correctness and legality of same which has also ended in its dismissal on the ground of delay. As there was delay of 414 days in filing the appeals, learned Appellate Judge has dismissed I.A.No.1-for condonation of delay, filed by appellants under Section 5 of the Limitation
- 25 -
Act and has consequently dismissed the appeals by taking note of the fact that during the interregnum period, Municipal Council had auctioned Seven (7) Shops and pursuant to same, petitioners in W.P.Nos.26313- 26319/2018 had already delivered possession of shop premises in their occupation and successful bidders were already in occupation of said shop premises. On that sole ground itself W.P.Nos.26313-26319/2018 would be liable to be rejected.
Accordingly, W.P.Nos.26313-26319/2018 stands rejected.
4. Insofar as other writ petitions i.e., W.P.Nos.49200-49202/2017, 2790-2819/2017, 11276- 11318/2017 and 3419-3420/2018 are concerned, I have heard the arguments of Sri. Vivek Reddy, learned Senior Counsel appearing for petitioners and Sri.C.N.Keshava
- 26 -
Murthy, learned counsel appearing for respondents. Perused the records.
5. It requires to be noticed at the outset that on completion of period of lease in respect of the shops allotted to petitioners an eviction notice came to be issued to them. Being aggrieved by the same petitioners had approached this Court in W.P.Nos.59187-59252/2015 contending interalia that they are entitled to continue in possession of the shop premises and they have a right to seek for renewal of the lease period for a further period of 12 years as contemplated under Section 72 of the Karnataka Municipalities Act, 1964. The co-ordinate Bench of this Court having considered the rival contentions and having regard to Section 72 of the Karnataka Municipalities Act, 1964 and Rule 39 of the Karnataka Municipalities (Improvement Board) Rules, 1966 and the judgment of this Court in the case of MOHAN P. SONU Vs. STATE OF
- 27 -
KARNATAKA - ILR 1992 KAR 1219 held that shops in question are public property belonging to a Municipal Council, which is an instrumentality of State and same being largesse of the State, said authority would not be empowered to make grant lease of the premises without resorting to take steps to let out the same by public auction. It was further held that an instrumentality of the State being the custodian of public property would not be free in selecting the recipients for distribution of the largesse of the State and as such held that leasehold rights in respect of the property belonging to the Municipal Council should be auctioned as per the mandate of Rule 39 the Karnataka Municipalities (Improvement Board) Rules, 1966.
6. As noticed herein above, petitioners were inducted as tenants of the shop premises in question and the tenancy had come to an end long time ago and they have continued to be in possession of the premises by
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paying the respondents. Hence, it was held by Co-ordinate Bench that petitioners cannot be thrown out of the premises in question without due process of law and as such permitted the Municipal Council to initiate proceedings under the Act. Accordingly, writ petitions came to be dismissed on 11.02.2016. Same has resulted in Show Cause notices being issued to the petitioners on 06.09.2016. However, petitioners for reasons best known did not reply to the said Show Cause Notices. In other words they did not give reasons or state as to why they should not be evicted from the premises in question. But on the other hand, they have filed a reply before the Estate Officer in the eviction proceedings contending that they have sought for certain information/documents from the Municipal Council and said documents are required for them to file their statement of objections or reply to the Show Cause Notices. In the absence of no statement of objections being filed and left with no option, Estate Officer has proceeded to pass an
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orders on 01.10.2016 under Section 5(1) and (2) of the Act. All the petitioners except petitioners in W.P.Nos.26313- 26319/2018, preferred appeal on time as required under Section 10 of the Act. The Appellate Authority after considering the grounds urged, contentions raised and documents produced by impugned order dated 02.07.2017 dismissed the appeals. Hence, these writ petitions.
7. It is the contention of Mr. Vivek Reddy, learned Senior Counsel appearing for the petitioners that original authority who issued notice under Section 4(1) of the Act and has passed orders under Section 5(1) & (2) of the Act has not at all applied his mind as to whether the documents sought for by the petitioners were relevant or not and as such the said order suffers from illegality. He would also submit that Appellate Authority while examining the appeals has not assigned its reasons for upholding the impugned orders of eviction which was in the scope of the Appellate
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Authority and as such Appellate Authority has also committed a serious error in dismissing the appeal. Hence, relying upon the following judgments, he has prayed for allowing the writ petitions:
(1) Judgment dated 26.02.2014 passed by this Court in W.P.Nos.100408-100409/2014 and connected matters between BHARATH KUMAR & OTHERS VS. THE COMPETENT AUTHORITY CUM ESTATE OFFICER AND COMMISSIONER AND ANOTHER (2) In the case of SUHAS VS. ASSISTANT COLLECTOR, AHMEDNAGAR AND ANOTHER reported in (2009) 2 Mah LJ 50.
(3) In the case of LAXMI B. METKARI VS.
EXECUTIVE ENGINEER NORTH MUMBAI DIVISION reported in (2018) 3 Mah LJ 355
8. Per contra, Sri. C.N. Keshava Murthy, learned counsel appearing for respondents would support the impugned orders by referring to the earlier orders passed by this Court and has contended that petitioners are in unauthorized occupations of the shops allotted to them long number of years ago and respondent authority have now
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taken recourse to evict them under due process of law and impugned orders do not suffer from any infirmity whatsoever. Hence, he prays for dismissal of writ petitions.
9. In reply Sri. Vivek Reddy, learned Senior Counsel appearing for petitioners would submit that without prejudice to the contentions urged in writ petitions that if some reasonable time namely to an extent of one year time is given, petitioners are ready and willing to quit, vacate and hand over vacant possession of the premises in order to put an end to the present litigation. His submission is placed on record.
10. Having heard the learned advocates appearing for the parties and on perusal of records, it is noticed that undisputedly petitioners are in occupation of various shops belonging to Town Municipal Council, Channarayapatna and it is a public property. Petitioners claim for being continued as tenant and seek for renewal of the lease period
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had been examined by the co-ordinate bench in earlier round of litigation and negatived has attained finality. Hence, it would not be open for petitioners to re-adjudicate the said issue in these proceedings.
11. In the light of liberty having been granted to Municipal Council to initiate proceedings under the Act and evict the petitioners from the premises by due process of law by this Court in the earlier round of litigation, a notice came to be issued under Section 4(1) of the Act on 06.09.2016 by the Competent Authority under the Act. Said notice though not produced along with writ petitions, gist of the notice has been extracted in the order of the Appellate Authority and on perusal of the same it would disclose that it is inconsonance of the Section 4(1) of the Act. No infirmity can be found in the said notice. Petitioners were required to reply within 10 days from the date of receipt of said notice. As noticed herein above petitioners did not reply but chose
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to file their reply. However, they have dodged to reply the show cause notice or in other words postponed submitting their reply and for submitting reply they sought for certain documents from the authorities and contended that same is required to be looked into by them for the purposes of submitting their reply to the notice issued under Section 4(1) of the Act. In fact statement of objection was also not filed. As such, authority namely Estate Officer while examining the plea of petitioners has rightly found that petitioners had not submitted their reply and the plea which was sought to be put forward by them namely non- availability of documents is not a ground on which they can be considered as not being in unauthorized occupation of the shop premises in question. Hence, Estate Officer of the Municipal Council has arrived at a conclusion that petitioners are in unauthorized occupation of shop premises and are liable to be evicted under the Act and as such an order under Section 5 (1) and (2) came to be passed.
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Though Mr. Vivek Reddy, learned Senior Counsel appearing for petitioners would contend that authority passing the order has not applied his mind before passing the same and it is cryptic-trite law that no elaborate reasons are required to be assigned by an Estate Officer while passing an order under Section 5(1) & (2) of the Act. As such, the contentions raised in that regard cannot be accepted and it stands rejected.
12. Learned Senior counsel has raised yet another contention viz., Estate Officer while passing the order under Section 5(1) and 5(2) of the Act, has assigned diametrically opposite reasons and as such on that ground the order dated 01.10.2016 evicting the petitioners from the premises in question is liable to be set aside also requires to be considered for the purposes of rejection, inasmuch as what has been stated in the order of eviction is that petitioners have not submitted their reply to the notice issued under
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Section 4(1) of the Act and the contentions which came to be put forward by them is that they have sought for certain documents and as such without said documents they would not be in a position to reply to the notice issued under Section 4(1) would not be a justifiable ground to postpone the proceedings. In other words what the Estate Officer has said that till date no reply has been furnished and the reasons furnished by petitioners for dropping the proceedings is not justifiable. It has been held:
EA¢£Àªg À « É UÀÆ ¤«ÄäAzÀ AiÀiÁªÀÅzÉà ¸ÀPÁgÀtUÀ¼ÀÄ F PÀbÃÉ jUÉ §A¢gÀĪÀÅ¢®è. ¤ÃªÀÅ w½¹gÀĪÀ PÁgÀtUÀ¼£ À ÀÄß ¥Àj²Ã°¸À¯ÁVzÀÄÝ, CªÀÅUÀ¼ÀÄ PÁ£ÀÆ£ÀħzÀÞªÁzÀ ¸ÀPÁgÀtUÀ¼ÁVgÀĪÀÅ¢®è.
13. In the light of above reasoning assigned by Estate Officer, contentions raised by Sri. Vivek Reddy, learned Senior Counsel cannot be accepted and it stands rejected. Though, learned Senior Counsel has raised a contention that Appellate Judge could not have acted as a adjudicating authority, this Court cannot lose sight of the
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fact that Appellate judge while exercising power of an Appellate Court is also required to assign reasons by examining the grounds urged in memorandum of appeal and appeal being continuation of original proceedings, said contention cannot be accepted. To support this view, the provisions of Order 41 Rule 31 of CPC can be looked into, which discloses what the aspects or points the Appellate Judge will have to examine while passing a judgment, which is illustratively indicated in Clause (a) to (d) of Rule 31 of Order 41 namely:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
In the light of the afore-stated position of law and the fact that appellants had urged various grounds in their appeals has perforced the Appellate Judge to examine the
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grounds urged and a finding is recorded. The Appellate Court has re-appreciated the entire material on record by taking into consideration that the proceedings initiated by Municipal Council under Section 4(1) of the Act and orders passed thereon under Section 5(1) and (2) being in consonance with the mandate of Section 5(2), has rightly held there is no error committed by the Estate Officer and Appellate Court was correct in dismissing the appeals and justified and in upholding the order of eviction, it does not suffer from any infirmity calling for interference in the hands of this Court.
14. The last point which would arise for consideration is whether petitioners are entitled to grant of time to vacate the shop premises in question to relocate themselves and if yes, how much time should be granted? Though, Sri. C.N. Keshava Murthy, learned counsel for Municipal Council has vehemently opposed for any time
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being granted to petitioners the fact remains that petitioners are in occupation of the premises/shops allotted to them from long number of years till date. Though the petitioners request for renewal of the lease has not been examined, considered, adjudicated, answered or rejected in other words they have been in possession of the premises from long number of years and have established their businesses in the premises in question, at this juncture if they are ordered to vacate the shop premises forthwith, naturally it would not only cause utmost hardship, it would also result in many of the petitioners being thrown to streets as their livelihood is dependant on it. As such, this Court is of the considered view that some reasonable time deserves to be granted to the petitioners to relocate themselves and to ensure that largesses of the State is not dissipated or there is no loss of revenue to the Municipal Council, petitioners can also be put on terms to offset the revenue loss to the Municipal Council. In other words petitioners would be
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entitled for some reasonable time to quit, vacate and hand over vacant possession of their respective shops which are in their occupation subject to payment of double the license fee now they are paying.
Hence, the following:
ORDER
(i) Writ petitions are hereby dismissed.
(ii) Orders passed by the Estate Officer under Section 5(2) of the Act which has been affirmed by the learned Appellate Judge in respect of the appellants are hereby affirmed and all writ petitions except writ petitioners in WP Nos.26313-26319/2018 inasmuch as they have already vacated and handed over the vacant possession of the premises to the Municipal Council are hereby dismissed.
(iii) Petitioners are hereby granted six months time from today to quit, vacate and hand over vacant possession of the schedule shop premises to the Municipal Council - 2nd respondent without
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directing them to execution proceedings, subject to payment of double the licence fee by way of damages which they are paying, for the remaining six months.
(iv) No order as to costs.
Ordered accordingly.
SD/-
JUDGE SV/-