Karnataka High Court
G. Vivekananda Kini @ G.V.Kini vs Bengaluru Metropolitan on 26 November, 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION No.25953 OF 2014 (GM-PP)
BETWEEN:
G VIVEKANANDA KINI @ G V KINI
S/O LATE G GUNDURAYA KINI
AGED ABOUT 54 YEARS
NO.42, "SHANTHERI",
JALADARSHINI LAYOUT,
3RD CROSS, NEW BEL ROAD,
BENGALURU - 560 054. ...PETITIONER
(BY SRI M J ALVA, ADVOCATE)
AND:
1. BENGALURU METROPOLITAN
TRANSPORT CORPORATION,
REPRESENTED BY ITS
DIVISIONAL TRAFFIC OFFICER,
CENTRAL OFFICE, SHANTHI NAGAR
BUS STATION COMPLEX,
BENGALURU - 560 027.
2. THE CHIEF TRAFFIC
MANAGER (COMMERCIAL)
& THE COMPETENT OFFICER
UNDER KPP ACT, BMTC,
SHANTHI NAGAR
BUS STATION COMPLEX,
BENGALURU - 560 027. ...RESPONDENTS
(BY SRI R V JAYAPRAKASH, ADVOCATE)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ENTIRE PROCEEDING BEFORE THE SECOND
RESPONDENT IN PROCEEDING NO.KPP 06/2011-12 VIDE
ANNEXURE-B INITIATED PURSUANT TO THE FILING OF THE
PETITION BY THE FIRST RESPONDENT VIDE ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
In this writ petition, the petitioner has come out with a prayer to quash the proceeding initiated under Section 7 of the Karnataka Public Premises (Eviction of Unauthorized Occupants) Act, 1974 (for short, hereinafter referred to as the 'Act of 1974').
2. The respondent in the said proceeding bearing KPP No.-06/2011-2012, is the petitioner before this Court. Petitioner in the said proceeding is the first respondent of this petition. Second respondent of this petition is the competent officer before whom the proceeding in question is pending.
3. The facts, which are not in dispute can be summarized as under:
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First respondent is the owner of the premises in question. The premises was granted on license to the petitioner in terms of the License Agreement dated 01.12.1999. The six years tenure of the license agreement commencing from 01.12.1999 ended on 30.11.2005.
4. The dispute is relating to the date of re-delivery of possession to the Licensor by the licensee and also arrears of licensee fee/ damages payable to Licensor by the Licencee. Petitioner/Licencee claims to have handed over the possession of the premises in the year 2006, to the licensor, immediately after the expiry of the tenure fixed in the license agreement. On the other hand first respondent Licensor claims possession was taken in 2010.
5. The first respondent, owner of the premises has issued show-cause notice under Section 4 of the said Act of 1974, to the petitioner demanding arrears of license fee. To this notice, the Licensee has replied and disowned the liability. Thus, the petition is filed by the first respondent- Licensor against the Licensee under Section 7 of the Act of 1974 to recover arrears of license fee.
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6. The petitioner/Licensee has questioned the validity of the said proceeding in the present writ petition. This writ petition was allowed by this Court in terms of the order dated 13.03.2019. The challenge by the respondents to the said order, met with partial success and Writ Appeal No.1663 of 2019 was allowed on 28.01.2020 and the matter is remanded to this Court for fresh consideration. In terms of the said order in the writ appeal, the parties were permitted to raise additional grounds. Taking shelter under the said order, petitioner filed an application for amendment and raised additional grounds. The prayer in the amendment application was granted and additional grounds find place in the writ petition.
7. Heard the learned counsel for the parties.
8. Learned counsel for the petitioner raised following grounds:
(a) The license agreement dated 01.12.1999 is executed by the Chief Traffic Manager, Bangalore Metropolitan Transport Corporation and that he being a party to the said agreement, cannot act as a competent 5 officer under the provisions of the Act and has no authority to initiate the proceedings.
(b) Once the tenure fixed under the license has expired, there is no question of paying license fee by the Licensee and proceeding under Section 7 of the Act of 1974 is not maintainable.
(c) The case involves complicated question of facts and as such, the provisions of Act of 1974 cannot be invoked to decide complicated questions of facts.
9. Elaborating on the above said grounds, the learned counsel for the petitioner would urge that the second respondent being the executant of license agreement and being an employee of the first respondent cannot decide a case in which either he or his employer is interested and according to Learned Counsel, it is against the principles of natural justice and attributes possible bias. He would further contend that the possession of the property is delivered very next day after the expiry of the period mentioned in the license agreement and the petitioner not being in possession of the premises is not liable to pay either the license fee or damages. And in support of his contention relating to lack of 6 jurisdiction of the competent officer to decide the case involving complicated questions, he placed reliance on the judgment reported in 2019 (1) SCJ 18 (Western Coalfields Ltd. and another Vs. M/s. Ballapur Collieries Company and others).
Based on these grounds, learned counsel for the petitioner would pray to allow the writ petition.
10. Learned counsel appearing for the respondents in support if his case, would make following submissions.
i) That a Notification was issued appointing Second respondent / Chief Traffic Manager of first respondent as the competent officer to conduct the proceedings under the Act of 1974, and traces the source of power to issue such notification to S.3 of the Act of 1974.
ii) That a new Notification is issued dated 01/04/2019, appointing the Chief Law manager of the first respondent - Corporation as competent officer, in place of second respondent, in exercise of powers under Section 3 of the Act of 1974. 7
iii) That the claim for arrears of license fee made in the petition is nothing but claim for recovery of damages.
11. This court has considered each of the contentions raised above and perused the materials on record.
12. The contention of the petitioner that the lease agreement was executed by the Chief Traffic Manager, as such, he cannot act as competent officer to initiate proceedings under Section 7 of the Act cannot be accepted. The License agreement is produced at Annexure C. Opening sentence of the said agreement reads as under:
This agreement is made on the 1st Day of December 1999, Bangalore City between Chief Traffic Manager, Bangalore Metropolitan Transport Corporation, Central Offices, K.H.Road, Bangalore 560027 ( Herein after called Licensor) ..... Though from the reading of the said opening sentence in the agreement, one would get an impression that the Chief Traffic Manager is the party entering into agreement, contents of the 2nd paragraph in the agreement would make it abundantly clear that the licensed property belongs to the 8 first respondent corporation. It is only the owner who can execute license agreement. Since BMTC/owner being a Corporation, it has to be represented by an officer its behalf. The Chief Traffic Controller has represented BMTC while signing the license agreement in favour of the petitioner. Thus it is obvious that the Chief Traffic Manager is representing BMTC/first respondent which is the owner of the premises. A drafting error in the license agreement, which omits to recognise Chief traffic Manager as the person representing BMTC, will not nullify the sanctity and true import of the license agreement. On account of this error in the drafting the Chief Traffic manager cannot be termed as the owner of the premises. Thus, the contention of the petitioner that the second respondent having executed the licence agreement has no power to conduct the proceedings has to be rejected.
13. Moreover, in view of the Notification dated 01.04.2019, the second respondent now cannot act as the competent officer and in his place the Chief Law Manager of first respondent-Corporation will act as the competent officer. On this count also the contention of the petitioner relating to competency of the petitioner to conduct the proceedings does 9 not merit any consideration. And for the same reason the plea of bias which was raised against the Chief Traffic Controller is not available to the petitioner.
14. As far as the contention that there is serious dispute relating to date of delivery of premises is concerned, said disputed fact cannot be termed as complicated disputed question of fact falling outside the realm of the proceedings under the Act of 1974. The ratio laid down in the case of Western Coalfields Ltd (supra) cannot be made applicable to the facts of the present case. In the aforesaid reported Judgment, the petition was filed seeking possession of the premises. In this case, the possession is already delivered. The dispute is relating to arrears of licensee fee/damages. Thus, the ratio laid down in the judgment referred above does not come to the aid of the petitioner.
15. As far as contention of the learned counsel for the petitioner, that there cannot be a claim for recovery of license fee subsequent to the licensee handing over possession, the learned counsel for the respondent would submit that claim to recover the arrears of licence of fee post expiry of licence 10 period, in substance is a claim for recovery of damages. It is the submission of learned counsel for the respondents, that the claim for recovery of damages is based on licence fee payable in respect of the premsies. He would further submit that it is always open to the first respondent to seek necessary amendment in his petition filed under S.7 of the Act, to make a claim for recovery of damages instead of arrears of recovery of licence fee. It is apparent from S.7 of the Act of 1974, that the claim for recovery of licence fee/rent/damages is maintainable under the said Act. Again the question whether the claim is made for recovery of arrears of licence fee or damages is for the competent officer to decide. And it is open to the 2nd respondent competent officer to rule on maintainability the petition to recover arrears of licence fees/ damages.
16. The Learned counsel for the petitioner has drawn the attention of the Court to the judgment rendered by the Division Bench of this Court in (Indian Bank Vs. M/s.Blaze & Central (P) Ltd) reported in ILR 1986 KAR 744, wherein the constitutional validity of S.4 of the Act of 1974 is upheld. Thus the proceedings before the second respondent who is 11 appointed in terms of valid notification under S. 3 of the Act is perfectly valid in law and same cannot be quashed.
17. For the reasons assigned above, this Court is of the opinion that there is no merit in this writ petition.
18. Accordingly the following:
ORDER The writ petition is dismissed. The Competent officer appointed in terms of Notification dated 01.04.2019 has to decide the petition no. KPP -06/2011-2012 in accordance with the provisions of Karnataka Public Premises (Eviction of Unauthorized Occupants) Act, 1974.
Cost of the petition is made easy.
Sd/-
JUDGE DH