Karnataka High Court
M/S Laxmi Enterprises vs The Commissioner on 8 September, 2011
Author: S.Abdul Nazeer
Bench: S.Abdul Nazeer
1
R
IN THE HIGH COURT OF KARNATAK AT BANGAI
ORF
DATED TillS W" DAY 01 SEPTE1BFR 2011
BEFORE
TIlE IIOX'BLE MR.JLSTIC'E S. IBIH L V4ZEER
WRIT PETiTION NO.25929/2011 (IB-BMP)
Betv een:
MIs La'crni Enterprkcs.
I .akshrni CompIe. No.38/3.
I albagh Road. Bangalore 560 027.
--
Repid B> its Partner
Sri ICR Saiija' . Petitioner
'B' Sri K Suman. Ad'i
And:
I The ( omnuinncr.
Bruhat Bangalote Mahanagar a Pahke.
Nar asnnliaraja Square.
Bangalore.
2
2 The Joint Commissioner (South).
Bruhit Bangalore Xiahanagara Palike,
Commercial Complex Building.
Cross RoHd. 11 B lock. Javanir.
Bangulore. .... Respondents.
(13v Sri, Abhijith A. 1-larnahaHi, Adv.
For M/s Haranahalli A/S. Advs,)
This Writ Petition is filed under Articles 226 & 227 of the
Constitution of India, praying to quash the notice dated 4.7.2() I I as
issued b\ the second respondent. 'tc.
This Writ Petition coming on for Preliminary Hearing in 'B'
Group this da\. the Court passed the lollo\ving:
ORDER
In this case. the petitioner has called in question the validit\ ot the notices at Annexures 'K' and 'N' dated 4.7.2011 and 3H.7.201 I respectively issued h he 2, respondent, to restrain the respondents tmn demo I ishi ne the petitit n cchedu Ic building and for certain other reliefs.
32. Brief facts necessan for disposal of this ease are as under:
The Ckneinnient of Karnatak€i had passed an order dated 2.6.1977 permitting the then Administrator of the Corporati on ot ('its of Bangalore (now Bruhat Bangalore 1ahanagara Palike to lease the land bearing No18/3 measunng 48 + 35/2 ft. 'c 150 ft.
l ing o er the drain on the eastern side of Lalbagh Road.
Bangalore. b> holding public auction. One Sri P.C.Sudharsha n sas the highest bidder in the auction. He requested the Corporation to transfer the leasehold nghts in fa4oui .t the petitioner-firm . The Go' errnnent ol Karnataka accorded appro' alto the \dministr atoi of the Corporation to execute the lease deed in favour of the petitioner as per the order at Anne'ure V dated '8 7 1980 The Corporation executed a lease deed dated 24.9.1980 (Annexur e SC') tegisteted on 25.9.IQXO in ta'ae ot the petitioner far a period ot 60 >ears for the construction of a building thereon for com mercial purpose. Accordinill). the petitioner has put up e.ornmercial complex on the said land On 19.5.1983. the Corporation gran ted 4 permission to the pctitionr to occupy the building The petitioner ecupied the said building and let out different portions of the building to sarious tenants. The BBMP has assessed the building lir the purpose of Ic'.> of property tax on the basis of the rents collected by the petitioner from the tenants.
3. The Zonal Joint ('ommissioner iWesu of the Corporation had issued a notice dated I .4.2(X)6 term inating the tenancy ot the petitioner in respect ot the property in questio n. The petitioner filed a suit O.S.No.275512006 on the file of the Additional ('ity Civil ('nun. Bangalore. br a declaration that the notice is illegal and boi permanent injunction restraining the respond ents from interfering with its peaceful possession and enjoy men t of the property. Aftei contest, the suit '.'.as decreed In the trial Couit on I 1.2011 It is the ac ot the petitioner that it has paid the pi ope rty tax fo; the y ears 2010-2011 and 201 1-2012 Ii is furt het contended that it had hornncd loan trorn (anar. Bank. Banalor e. for tonstiuction of 5 the commercial complex and has been discharging the loan in in%tallments.
4. It is further contended that petition et has recei'.ed a notice at .\nnexure 'IC dated 4.7.2011 ssherd> the second respondent has called upon it to show cause as to hy it should not be n icted from the land and the building con structed thereon be not demolished. The petitioner has sen t a reply to the show cause nntiee as per Annexure 'L' dated 11.7.2011. During the pendency of the dt petition. the second res pondent has issued yet another notice under Section 411) of the Karnataka Public Premise% Eiction of Unauthorised Occupant si Act. 1974 (tor short 'Public Premises ActJ at Annexure 'N dat ed '0.7.2011 calling upon the petitioner to shoi cause as to h it should not be e' icted from the petition schedule property ithin 10 dan from the date of receipt Lt the notice. The petitio ner has sent a ieply to the said not ice as per \nnexure .jV d ned I l.S 2(111 The Bnga1orc I Icuricit Supply Company has issued qot ice as per %nnexure 'Q dated q 9 S.201 1 inthrming the petitioner that it has to disco nnect the power supply to the building in question within ji d tys from the date of receipt of the said notice Therefore, the petitioner has filed this writ petition seeking the aforesaid rcliefs.
5. 1 have heard Sri KSuman. learned Counsel for the petitionei and Sri Ahhijith A. Harnahalli. learned Counsel br the respondent-Corporation
6. 1 earned Counsel hr the petitioner submits that the State (ioicrninent passed an Order at knneure A' dated 28.7 1980 granting permission to the Administrator ot the Corporati on to lease the land in question in faour of the petitioner for a penod ot N) years \ec.ordingly. the Cotp' ration ha' leased the land unde r a deed of lease at \nnexure 'C' dated 24.') 19X0 for a period 'f 60 sears Th terms and conditions ot th. sod deed peim its the petitionu to onstruc.t a building n the land in question fri commercial purpose. It sas ak' permitted to let out the building.
7On the expiry of the period of the lease, the building constructed h> the petitioner will est with the Corporation flee from all cncurnhrances. Condition No. IS makes it clear that on breach of an of the conditions of the lease, the Corporation has the right to reoke the lease and resume pos ses' ;Jn of the land ith the building constructed thereon notvJt hstanding the un-expired period of lease and that the petitioner shall not be entitled for an> compensation in respect of the bui lding. The land in question i a space measuring 48 + 35/2 ft.
150 ft. lying cner the drain on the eastern side of Lalbagh Road. R:' igalote The petitioner has put up construction on the %aid land as per the plan sanctioned In tht. Corporation. The Corporation has granted permission to the petitionet to oecup' the building as per the endorsement at nnexure 'Li dated 19 5.1Q83 Th e petitioner has let out difterent portions of the building to dif ferent pet sons. Thu land and the building constructed th:reon has bee n assessed to tat and petitionet has been paying the pioperty ta' regularly 8
7. It is argued that the Co rpor non issued a notice da ted 1.4.2006 terminatinp the tenancy of tht petitioner. 1 he petitioner filed a suit O.S.No.2755/200 6 on the tile of the Addition al ('its Ci' II Judge, Bangalore. for de a claratiop that the notice is arbitrary, illegal and without jurisdict ion and for permanent inj unction restraining the Corporation or any body else on their be half from interfering with its peacefu l possession and enjoyment ot the said property. The suit ssas co ntested by the Corporation . The trial Court passed a decree on 1.1.201 I deelanng that the notice ol termination issued by the Co rporation is w ithout jurisdiction . It has granted an order ot injuncti on re%tralning the ('orporat ion 1mm intertering ss ith the petitioner' s po%session and enjoyme nt ot the property. Liberts was reser ed to the ('or poration to initiate action for e' iction of the petitioner from the piopeity in aceoida nce with Liw S It is further argutd that the Corporat ion has again issued a notice as per Annexure K' b dated 4 7.2011 terminating the kase 9 and directing the petitioner to demolish the building hich is not pernn'sihle in The notice Is said to hate been issued on the hais of the order ot this Court in .P.N o.3 1394/2009. During the pendene> of the i it petition, the Corporation has again issued a notice dated 10.7.2011 under Section 4 1; of the Public Premises Act. It is argued that the Corporation has leased only the land ith liberty to the petitionet to put up a com mercial complex thereon.
rhe petitioner has put up construction in terms of the plan sanctioned b the Corporation. Petitioner is the O6 nor of the said building Theretore. the pro' isions of the Public Premises Act does not apply to the case on hand. H there is a breach of conditions of the lease, the Corporation has to take acti on against the petitioner tW its e iction under Section I G. of the Transfer of Property Act, 1882. Thus. the notices impugned her ein ate totally ithout jurisdiction 'The order ol the Di' isb n B.nch of this Court in V I' \o.3 1 W412009 has no ipphcation to thi' ca'e.
109. On the other hand, learned Counsel appearing for the respondents 'submits that a Di isbn Bench of this court in W.P.No 31394/2009 has issued interim orders from time to time directing the Corporation to remote ali the encroachments oter storm isater drains. In the said case. the Corporation has filed an affidavit dated 3.8.2011 stating the procedure that tsould be tollotsed tor remosal of the encroachments oser the storm ater drains. Recording the said affidas it. the ss nt petition was disposed of That is wh3 the Corporation nas issued notice as per Anneure IC dated 4 7.20 I I calling upon the petitioner as to why the lease should not be terminated and the building should not be demolished. The building forms part and parcel ot the land leased to the petitioner hating regard to Section 3(17) ot the Karnataka General Clauses Act. I X9) The Corporation is also justified in initiatina action for eiction of tht. p..titsoner ftom the propert> in que%tion under the Public Premises Act as the building torms part ol the land.
1110 It is further contended that Section 28& I) ot the Act authorises the Commissioner of the Corporation to grant licence subject to such conditions and restrictions as he may think fit to the o ncr or occupier of any premises to put tip or continue to have erandahs. balconies. sun-shade. seainer-franies and the like to project oser a street or in streets in 'hich the constructions of arcades has been sanctioned by the Corporation to put up or continue to have an arcade or to construct an> step or drain coering necessary for access to the premises. However, no licence can be granted if the pi,jection of the or construction is likely to he injurious to health or cause public ineonenience or others ise materially interfere ssith the use of the road as such Therefore, the Corporation is lustified in issuing the impugned notices Ihecause the building has been constructed over the drain.
In this tonnection. he has relied on the decision of this Court in W4.JID I'S. STITE OF £4Iec4TAc 1- ILR 1986 kAR 3679. It ;s triucd th it Section of the \ct o's emdes the pros isions of the Public Premises Act.
12has become sold due to I1 It k argued that the leae deed .e of Section 23 of the Indian Contract pas sag e of tim e. It is io1 ati' lic policy. In this connection, he Act. 1872 as it is opposed to pub rel ied on the dec isio n of the Apex Court in has HER I'S. K.S.PRAK ISII (D R ING.INA )AI&%M.3L4 & •IXOT SCW 647 6.
BY LRs. & OTHERS - 2008 AIR n of the building is It is contended that demolitio
12. storm lic interest for the free flov of absolutel> necescar> in pub atcr 'be ns urged. the first question 13 Having regard to the contentio notice at Annexure 'K' dated for concideration is hether the gal?
4 ".2() I I terminating the tenancy is ille K'. one 01 the rea'on'
14. In the notite at Annewe petitioner is the order passed in assigned thr the eviction of the 13 W.P.No 1394/2009. In the said case. the Chief Engineer (Storm ater Draint BBMP, Bangalore. ha filed an affidatit dated 3.8.2() 11 undertaking to remove the encroachments o er the storm water drains. Recording the said affidavit, on 4.$.20l 1. this Court disposed of the writ petition with a direction to remtne all the encroachments over the storm water drains. Needle's to sa> that the encroachments ha'e to be remoed in accordance with law and not otherwise. In the instant writ petition. we hase to con'ider as to whether the procedure adopted is in conformity with law.
15. The other ground ctated in the notice is that the petitioner has sublet different portions of the building The lease deed at nne'iure 'C' e'tet.uted b3 the c orporation is a term lease for 60 >ears Under the said deed. the petitioner was permitted to use the schedule land for the construction of the building for i'rnmercial purposes. Clause I I ot the lease deed bars the petitioner trom subletting or parting with possession of the schedule land On the e'ipir> o. the period of lease, the building 14 constructed b the petitioner ests with the Corporation free from all encumbrances Clause 15 of the lease deed is as under
'On breach of an> of the aforesaid condition, the lessor shall have the right to reoke the lease and resume possession of the schedule land ith the building constructed, if any. by the lessee thereon notwithstanding the un-expired penod of lease and the lessee shall not be entitled to any compensation in respect of the building"
16. After construction ot the building. the petitioner has let out arious portions of the building to different tenants. The Corporation has assessed the building to ta on the basis of the rents collected by the petitioner from anous tenants. The notice issued by the Corporation terminating th tenanc> vas challenged Ii> the petitioner in the suit relerred to aNne. Issue So. I framed in the suit is a under:
15"W hether the notice of termination of tease issued by the setond defendant bearing No.BCC/LC RR 06/04 05 dated 1.4.2006 is illegal, arbitrary and ithout junsdiction?"
17. 'While anstsering the 'aid is',.r. the Cit it Court has held that the notice is illegal and without jurisdiction The decree ot the Cis it Court has become tinal and binding on the parties It is true that the Cnit Court has resened libert to the Corpoiation to initiate action for eiction of the plaintiff horn the property in question in accordance ith lay.
18 It is eIl established that unlike in Itngland in India there can be a dual o nership. in the sense. that the land ma betonu to onc peison ai d the buildinas theieon may bclong to anothei person. This concept ot dual oneiship sas r'cojniscd by th Prns Council in 'sIRI) 1',, D4S ICIII.tITY VS. J1I1NDRI 16 TI! ROY CHOWDHRY & OTHERS -- :111? 1927 PRJIT CO(\CIL 135. as under:
"The maxim which is found in Eneli\h law, viz, "quic quid planiatur solo, SOLO cedit . has at the most only a limited application in India. Iire is nothing in the la s or Customs of India, to shos an traces of the existence of an\ absolute Rule of La that hateser is itself."
(emphasis supplied h\ me) I 9. In Dr,k.A,DHAIRYA fl 1.V & OTHERS I S. J.R.TIL4KL'R & OTHERS -- AIR 195S SC 769. the Apex Court v as considerin the eviction of a tenant under the Bomha\ Rents, lintel and Lodging House Rates Control Act. 1947. In the said case, the appellants as trustees of the \Iankesh ar Temple.
c\euted a ixcistcred iCde in fa\ our of tile rcspondIlt. a llerchy the\ demised a parcel of the land. The ease was for twent\ -one 17 \ears. Under the terms of the lease, the lessee had to construct s ithin sk months from the date ot the lease a double store> ed buildine consisting of shops en the ground floor and residential rooms on the upper floor. on termination of the lease, either at the end of the twenty-one sears or earlier, the lessee was to surrender the demised premises including the building with its fixtuies and appurtenances to the lessors without an compensation for the same. Shortly before the lease was to e"pire. the appellants gate notice to the respondents to deli'ter possession of the demised premises and the building on the epiry of the lease. After examining the tarious clauses of the lease, the kpex Court found that in none of them has it been positiiel> stated that the building to be erected on the demised land would be in the ownership of the lescoi s. I 'nder the law. there w a' no ir'ediment in the way of the parties to ha'e had a clause, in a positi'e t'nrrn. to that eftect. In the ihsenct. of such i clause in the lease. w htthei it 'in 'x said that there had also been a demise of' the huildiin. The Supreme Court found that the schedule to the lease speeit'icall mentions that the 18 land had been demised and there is no mention therein that the building when constructed thereon would also form part of thc demised property. Taking into account these factual aspects, the Apc court held as under:
In 1927. when the lease was ececuted the Act was not in existence and it may reasonably be said that none of the parties had ever in contemplation that the Act or any thing akin thereto would become law in the future affecting the rights of the parties undet the lease. The sarious clauses of t.hn lease are consistent with the ow nership in the building being with the lessees in which the lessors had no right while the lease subsisted. In the case of Vannan I)as Is.
Jatindra Karl, 54 bad pp 21k (4IR 19r PC' 1 35, g'lj the Priy Council approved the obsenations of Sir Barnes Peacock in the case of ThaAt''r Chundel Pt 'reilnanit 'A I s. 1 Rum , ' dln' BhIgttcft 'har,ec 6 .Suth WI? 22's 'B, to the tollowing effect "We have not been able to rind in thc laws or customs of this country any traces of the
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-a... ... f.t..---- a&. %?4•..... t. _t'.19
existence of an absolute rule of law that whatever is aftixed or built on the soil becomes a part of it. and is subjected to the same 'rights of property as the soil itseir. In the case of Va!labhdas Naranji Vs. Development Officer, Bantlra. 56 Intl App 259: fAIR 1929 PC 163 (C the Privy Council once again referred to Sir Barnes Peacock's observation as stated above. The Privy Council also quoted the following observation of Counch, C.J., in the case of Naroyan Vs. Bholagir, 6 Born BC (AC) 80(D):
We cannot, however, apply to cases arising in India the doctrine of the English law as to buildings, viz., that they should belong to the owner of the land. The only doctrine which we can apply is the doctrine established in India that the party so building on another's land should be allowed to remove the materials."
20. In cHANrnu Bid VS. TUKARAM - 1977 (1) KU 270, this Court was considering the eviction of a tenant under I I) . ._.. S.. t...t - ZflJ. •1fl. . .. .. . --.20
Section. 2 H I 'U' of the Karnataka Rent Control Act. 1961 In the said case, the petitioner was the owner of an open site. He leased the site to respondent No. I. Respodent No.1 constructed a building worth Rs.40() and agreed to put up a structure worth Rs.600. The lease period was 15 )ears. The lessee agreed to hand oer possession of the building without taking money at the end of the term, and not to mortgage or sell the building or alienate the building. Respondent No. I had 'blet certain rooms in the building to respondent Nos.2 and I This Court held that the demised premises was only the open 'ite and as such the lease of the two rooms to respondent No.2 and 3 did not amount to subletting
21. In 1LG.IIIREMATH & ANOTHER 33.
I.KRISH's t.PPA -- hR 1978 ILIRXITAKA 13. this Court has held that there may be separation of the owntrship of the buildm& from the ow nership of the land. and there i no rule of law that 21 shateer is affixed or built on the soil becomes a part of it and is subjected LI) the same rights of property a the soil itself.
22. In WEST'S P-I TENT 2ESS ('0. LTD. 1 'sI) :1 .VOTIIER VS. GOVINDNAIA GURL'i's. 1 TH.V4IK AALGHATGI & OTHERS - AIR 1984 VOC 274 (K IR.'s.IflK-U. this Court has held thai in a building lease, if the tenant built on the open site leased to him, then, bs vixtue of the doctrine of dual o nership, h.. ould have the ownership of the building, and ii he let out the building. it would not amount to subletting of the lease-hold property. for the lease-hold property "as only an open site.
2. In BALL' 31 IL P. SETH VS. (IRIYIPPA -- ILR 1991 EAR 1256. this Court ct.nsidering the protection a'ailable to sub tenants inducted b tenant ith npt 'ss consent of landloid In this case, a acant site let out h die landlord in Ln our of respondent No.4 for a period of 20 sears on a monthly rental ot 22 shall construct a Rs 200/-. The lease deed proided that the tenant d by the ('orponition.
building according to the plan got sanctione tenant at his own The building was to be constructed by the expense. and apart from the pound floor and the first floor as construct othet shown in the plan. the tenant was at lihert' to storey d for others at his instance thereon and use it tor himsdf w 1 of 20 years. the according to his con'enience. After the c'cpiry as it then stood tenant was to dcli' er possession of the building landlord ga e with atleast the ground floor and the first floor. The ng upon them to notice to the tenant as also to the sub-tenants calli .1986 a the term hand o er sacant possession of th: building on 6.1 t and the sub-
ot 20 years was to expire on that day. Since the tenan tiled a petition to, tenants did not 'acate the premises. the landlord c iction on arious grounds Relying on the decision in has hcld DrJt4.DIIAIRY4W4X\ case supra'. this Court Js under 23 "Applying the principles laid down by the Supreme Court to the facts of the instant case. all that can be said is that the landlords in ew of the contract became the owners of the super-structure on the expiry of the term of the lease, and if they so desired, could recover rent from the sub-tenants. However, for seeking eviction of the tenants, they have necessarily to resort to the procedure laid down in the Karnataka Rent Control Act, which they have done in the instant case. They have therefore to ir'ke out a ground for eviction of the occupants from the premises in question. The decision in DrDhairyawan's case can be of no assistance in deciding whether in pursuance of the decree for eviction passed against the tenant. the sub-tenant can also be evicted with the aid of Section 30 of the Act, because the status of the sub-tenants inducted by the tenant ii not fall for con%ideration before the supreme Court."
24. The Apex Court in £4 TAN LAL lAiN & OTHERS VS.
LIMA SHANKAR WAS & OTHERS - (2O02) 2 SCC 656, has considered a similar question. It has been held as under:
I 24 '6. Clause (h) of Section 108 of the Transfer of Property Act, 1882 confers a right on the lessee to remove either during or even after the determination of the lease, at any time whilst he is in possession of the property leased but not afterwards, all things which he has attached to the earth which will include any building raised by him on the leased land. However, such right is subject to a contract or local usage to the contrary. In the present case, clause 16 of the lease deed obliges the lessee to hand over, at the end of the lease. all the construction with fittings and tenancy to the owners. In the facts very similar to those before us. this Court held in Ka-tDhairyawan (Dr) V. J.R.Thakur that although under Section 108 of the TP Act, the lessee had the right to remove the building but by the contract he had agreed to hand over the same to the lessors without the right to recei compensation at the
-
end of the lease. The matter would be governed by the contract between the parties. Such a contract did no transfer the ownership in the building to the lessors only while the lease subsisted. Obviously at the end of the lease. the things attached to earth by the tenants 25 pass over to lessor-owners of land in accordance with the contract. On determination of lease, as entered into between the panics the consequences which follow are: (i) the lease of land comes to an end, (ii) the ownership of building raised by incipal tenants stand vested in the lessor-owners of land, the building goes with the land, (iii) the principal tenants have to physically vacate the property. and (iv) the lessor- owners stand subrogated in place of principal tenants."
25. In the instant case, the Corporation is the owner of the land. Under the lease deed at Annexure 'C' the petitioner was put in possession of the said land. It was a term lease for 60 years under which the petitioner was permitted to put up a construction.
The petitioner has constructed a multi-storied complex thereon as per the plan sanctioned by the Corporation. None of the clauses in the lease deed positively state that the uulding to be erected on the demised land would be in the ownership of the Corporation. There "as no impediment in the way of the panics to have had a clause in a positive form to that effect. In the absence of such a clause, it 4 I 26 cannot be said that the ('orporntion is the owner of the building.
By 'irtue of the doctrine of dual ownership, the petitioner has become the oner ot the building. The petitionet has not iolated an) of the conditions of the lease. The lease of the building by the petitioner in favour of third panics did not amount to sub-letting as the lease hold property as only the land On this ground, the Corporation cannot evict the petitioner from the land and the building in question On the expiry ot the penod of lease, the building constructed by the petitioner will vest with the Cot poration tree froni all encumbrances. If the petitioner iolatcs an of the terms of the lease insofar as ti;e land is concerned, it can he evicted from the land and the building ncn ithstanding the un expired penod of lease 26 That brings me to the second question a to hether the (orpotation is justified in inu fling auton tot esiction ot the petitioner under the pro' isions of the Karnataka Public Premises (Esiction oft. nauthorised Occupants) Au. 1974?
2727. Annexure bN* is the notice issued by the Corporation under Section 4(l) of the Public Premises Act calling upon the petitioner as to why it should not be evicted from the land and building in question. The ground urged in the notice is that petitioner has sub-let the building in favour of third parties in violation of Clause 11 of the lease deed. Clause 11 of the lease deed bars the petitioner from subletting or parting with possession of the land. On the expiry of the period of lease, the building constructed by the petitioner vests with the Corporation free from all encumbrances. Clause 15 states that the Corporation shall have the right to revoke the lease and resume possession of the land with the building constructed thereon if the lessee contravenes any of the terms and conditions of the lease deed. As has been noticed above, under the lease, petitioner was permitted to use the land for construction of the building for commercial purpose. He has not sub-let the land in question. I have already held that petitioner is the owner of the super structure. As the owner of the super ctructure. he has let out different portions of the building to I 28 different tenants. On the e\pir of the peiiod ot 6() sears, the building constructed by the petitioner sests ssdth the Corporation free from all encumbrances. The petitioner has not parted ith possession of the land. Therefore, the question is shether the leasing of the buildings to the tenants attracts the provisions of the Public Premises Act?
2S The Apex Court in EXPRESS i'LWSPAPERS PVT.
LTD. & OTHERS VS. UNION OF IADIA & OTHERS - AIR 1986 SC 872. has considered an identical question. In the said case, it has been held thus:
87, NpierJi,Ltd ,Vv th the sanction of the lessor i e. the on Plots \os) and I 0. Bahaduishah /iMgr cdnjgetggI lease bircistcred lease deed datLd March 1 198 can, by noprocess ot reasog. he regarded edcrenIshelpnging ft the Central Gosernment under S 2(e). That hem so, there 29 )reictiorof the Express Newspapers Pvt. Ltd., under S.5( 1) of the t,197liorir under sub-sec. (2 Due process of law in a case like the present necessarily implies the filing of suit by the lessor i.e. tile Union of India, Ministry of Works & Housing for the enforcement of the alleged right of re-entry, if any, upon fo"'iture of lease due to breach of the terms of the lease,"
(emphasis supplied by me)
29. This Court in COL.S,P.A NA ND VS. THE COMPETENT OFFICER, SECRETARY TO BANGALORE DEVELOPMENT HTORITY, 7 AL BANGALORE AND ANOTHER 2001 (6) kU 72, was considering the eviction of an allottee from a site allotted by the BDA and the house constructed h the petitioner thereon with the sanction of the competent authority. It is hc.ld that the premises cannot he considere.d as a I 30 public piemises belonging to the autho ty Consequently. there is no jurisdiction to direct e' iction of the allottee therefrom. Due process ot Ias requires tiling of suit br enforcement of its right of ie'.oking the allotment and for re-entry. Psiction proceedings was accordingly quashed by this Court resersing liberty to the BD\ to take suitable action before the r; II Court in a properly constituted suit. It has been held thus' In this ease. as stated above, the question of tenancy does not vies of the fact that the building in arise in question was constructed by the petitioner spending money and the same was also according to the plan and specifications panted by the BDA. Therefoic. it cannot be construed a a public premises."
(J. Iherefore it cannot be said that petitioner has unauthorisedly sub-let portions of the building. The building in question cannot be treated as public premises The petitioner Is the ow net of Uic said building The Corporation becomes the owner of 31 the building after the expiry of 60 years from the date of execution of the lease deed. It is only hen the petitioner violate' the terms of the lease, the Corporation is at liberty to terminate the lease and resume possession of the land and building notwithstanding the unexpired period of lease. The petitioner has not violated any of the terms ot the lease. If that is so. the action initiated In the Corporation for eviction of the petitioner under the provisions of Public Premises Act is ithout authority of la.
31. At this stage. it is necessary to consider the contention of the learned Counsel for the Corporation that the building put up by the petitioner forms part of the land leased by the Corporation Clauses haung zegard to Section 3(17) 01 the Karnataka General \ct. 3899. Theretkwe. the Corporation is justified in inok.ing the pm' isions of the Public Premises Act for e' ic.tion ot the petitioner 32 The object of the Public Premises Act is to indicate th.
meaning of an expression in a genc: ic and not in a rigid ot 32 exhaustive sense and shorten the language of statutory enactments and to provide for uniformity of expression in case where there is identity of subject matter. Vhatever th.. General Clauses Act says as regards the meaning of the words or as regards the legal principles has to be read into every statute to which it applies provided the statute does not contain anything repugnant to them in its subject or context and does not produce a different intention. In N.SUBRAMANIA IYER VS. OFFICIAL RECEIVER, QIJILON AND ANOTHER -- AIR 1958 SC 1. the Apex Court has held that the General Clauses Act is enacted in order to shorten language used in parliamentary legislation and to av?id repetition of the same words in the course of the same piece of a legislation. Such an Act is not meant to give a hide-bound meaning to terms and phra.cs generally occurring in legislation. That is the reason why the definition section contains words like 'unless there is anything repugnant in the subject or context'.
a .a..aac a a a..aa• la'a.a.a..a._._•_.
33mises Act defines public
33. Section 2e) 1)1 the Public Pre to or allotted to Suite premises a' an> premises belonging uisitioned by or on behalf of Gosernment or taken on lease or req es an premises belonging to or the State Government and inciut tioned therein. 'Premises' taken on lease In different parties men land or any building or hut has been defined in Section 2(c) as any includes the garden. grounds and or pan of a building or hut and h building or hut or part of a outhouses if any. appertaining to suc to such building or hut or building oi hut. and an> fittings affled eficial enjoy ment thereof.
part of a building or hut for the mow ben out by the petitioner 34 Tn the instant case, the premises let public premises It belongs to k the super structure 'shich k not a es' or 'public premises are the petitioner. The expression 'premis s 4..t The object of Public not defined in the General Clause remedy br e ictmon of the Premise' Act is to pit 'ide for a speedt mise'. hen the npression unauthoristd oc.cupants from public pre in the Geneial (austs Act.
puhlic premises' has not been defined 34 n of the c'tpression it is uflncccsszu'v to import (he definitio immn able propert>' into the Public Premises Acts.
ned Counsel fez the 35 The third contention of the lear the petitioner is that the Corpo ration is authoriied to demolish in having building in question constructed oer the storm water dra mataka Municipal Corporation s regard to Section 288 of the Ka n issued under Act. 1976. The impugned notices hate not bee as it ma) 'ection 288 of the said Act. Be that
36. Section 288(1) authorises t':, Commissioner to grant mitt> think fit to the oner licence subject to such conditions as he up or ontinuc to hate or occupier ot an) premises to put ather frames and the like to terandahs. balconies, sun-shades. ise t ose r a stre et or in stre ets in hmch the constructions of pro jec Corporation to put up or arcades has been sanctioned t' the tonstruct any step ot drain continue to hate an arcade or to piemises. Sub-section (2) cotering necessar> for access to the 35 licence subject to such auihorises the Commissioner to grant conditions and restrictions as he may think fit br any temporary public place the control of construction in any street or in any
-section 4i states that on the which is sested in Corporation. Sub nce has been granted or after epiry of an> period for which a lice pension or re'.ocation of such due communication of an order of sus w about notice, cause an> licence, the Commissioner ma>.
sub-section tl) or (2) to be projection or construction put up under application because petitioner remo'ed. These pros isions have no has taken possession of the land und er a lease deed for a period of eon. Section 288(4) does not 60 years and put up construction ther the property belonging to the pro'. ide for c. icting a tenant fr'm lass fully constructed by tht Corporation or to demolish the building to remove the petitioner It authoriies the Commissioner the licencees after the epin pinlections oi constructions put up by ot the petiod ob liencc or attei suspension or tesocation of the lLence 36
37. In W4JIL)\ case isupnn relied on In the learned rt as considering the Counsel for the Corporation, this Cou therein on the foot renIo%al of hunk shops put up h> the petitioners ation limits. It as held that path and sub-ts a s sithin the Corpor k shops on the foot path is encroachment of any type including bun potter in the Corporation not permitted b> the statute There is no shop on the foot path. The to grant permission to put up even bunk ohstructions, projections in Corporation is competent to remo'e the public places. The Court has or upon the streets, bridges and other s hen compared to Public further held that Section 288 of the Act and it ovemdes the Premises Act becomes a special statute In the instant ttc are pro' isions of the Public Premises Act.
case.
chments under Section not considering the reinos al of encroa aforesaid decision is not 288(4 of the Act. Thererore. the applitable to the facts of this case.
ot the tespondent
38. That brings me to the la't contention eure 'C' has betome that the object of the lease deed at Ann 37 ed that the tinlaM ful as it is opposed to public polic). It is argu lying oser the subject matter of the lease is the portion of the land storm water drain. The 'torm water drain is meant for drdinin2 the oertiowing water which floods tt roads, paements and of the Indian adjoining properties. Ha' ing regard to Section 23 e void Contract Act. 1872. the contract has etentually bewm the
39. Section 23 of the Contract \ct las, down that wful if it i consideration or object ot am agreement is unla any law, or forbidden by law, or would defeat the pro' isions of her or the would invol c injurs to the person or property of anot y The Court considers it immoral or opposed to public polic policy'. The Contract Act does not define the expression 'public no man can public policy is the principle which declares that the public law lull> do that which has a tendency to be injurious to weltare. Public policy comprehends the protection and promotion 01 puNk weltare. It is a pnnciple ot lass under which freedom tot the good t if contract or pth ate deal'ng is restricted by the law tor 38 j I has the tendency to injure public the community A contract which lic policy. The concept inteicst or public elfare is one against pub h the ut public policy is not immutable iiite it must ary wit It does not remain static. It changing needs of the society.
changes with passage of time
40. In NAGLE S. FIELDEX -- 1966(2) QB 633. it was lic policy cannot iemain stated that the law relating to pub sage of time The wind of immutable. It must change w ith pas change blows upon it.
in RATTA.VCIIANI)
41. The Andhra Pradesh High Court Z M) AIR 1976 AP 112 IIIR4CHAXD VS. ASkIR XAIIA 1C
-
gresshe society with fast has observed that in a modem pro it becomes more and more changing social alues and concepts.
lic policy. Law cannot afford impeaatne to eohe new heads ot pub to remain sta&. The pnnciples gcnen.iog publi'.. polk' are thus ansion ot modification. If there is capable on proper occasion ot exp case. then the Court must in no head of policy which coven a 39 consonance with publit conscience mid in keeping with ublic idered goods and public intcrct. declare practices which were cons to nomial at one time, but ha'e become obno'ious and oppressie public conscience. to he opposed to public policy.
42. Tn ASSO('IA FED (tME VT COMPANIES LTD. VS.
THE STATE OF R4JA STRAY AND ANOTHER - AIR 1981 RAJ4STIL4N 133. it has been held thus:
Publie polk> does not remain static in an> gisen community. It ma' 'my from generation to genetation and een in the same generation. Public Policy would be almost useless it it was to remain in fixed moulds fin all time. rhe difficulty of disco'ering what public policy is at any gnen moment certainty does not absolve the Judges from the duty of doing o. In In conducting an enquirs. Judges arc not hide abound precedent The Judges must took hey ond the narrow held of past precetlents. though this still 1eaes open the question, in whi:h directioi. they must cast their ga'e. The Judges we to base their decision or' the 40 opinions of men of the world, as distinguished from the opinion based on legal learning. In other words, and Judges will have to look beyond. the jurisprudence own that in so doing, they must consuLt not their the personal standards or predilections but those of been dominant opinion at a given moment. or what ha termed customary morality."
43. In GURMLJKH SINGH VS. AMAR SJNGH - (1991)3 5CC 79. the Apex Court has held as under:
'Public policy is not static. It is variable with the changing times and the needs of the society. The A march of law must match with the fact situation.
ic contract tending to injure public interest or publ welfare or fraudulent to defeat the right of the third parties is void under Section 23 of the Contract Act."
with the
44. The legislature often fails to keep pace pt that it will changing needs and values nor is it realistic to exce tualities, it is, have provided for all contingencies and even I 1! 4. ?4t$t !at tttttt-' .. . ..• . .
, a.
41I r> on the Courts to step thcrefr're. not only neces'ary. hut obhgato IX in to fill the lacuna. 15cc R4fl'AX L'H4ND IIIR.4L'II4VD ASK1R £IW4Z JLMJ -- (1991 j 3 Sfl' 67).
ations Act. 1976
45. The Kamataka Municipal Corpor lands in question. The authorises the Corporation to lease the a period of 60 years. The agreement was executed on 24.9 1980 for execute the lease deed State Gos ernment has accorded appros alto The contention of the Corporation is that the construction of the ts free flow rain water building oser the storm water drain presen the rain> season. It is resulting in submergence of the area during n the lease deed was further submitted that at the time whe ed to today \ extent executed. City of Bangalore had not des elop water drain has caused Encroachment and construction oser st•am In public interest.
oh%tiuction to the fret flow of storm water asoided The Corporation flooding of wads. pasenients must he ed with obstruttion fret.
should ensure that Banaloie Cit' is equipp flood water properl>.
storm water drains. ss hich will thannalise the I 42 I ihus. the contract has nm become unlawfuL Whether the contract sage of time as contended ha' mnentuall> become 'old ith the pas n js a quection of tact.
in the learned Counsel lot the Corporatio issued on this ground.
The impugned notices have riot been observations on this Therefore. I refrain from recording rn question The Corporation js at liberty to initiate appropriate proceedings on this ground ra relied on by
46. In RANGA&1YAk4MMSs case (sup atior the Apex Court has held the learned Counsel for the Corpor be a' oided hereas that a void document is not required to lease deed is a oid oidahIe document rnut be Whether the document or not is not the cubject matter of thk writ petition ls not helple's 47 It is rele ant to note that the C orporation of storm ater in the In ft mine the obstruction for the free the lease hold rights drain in qut stion. It is permissible to acquire of the petitioner in the land and its o'ner'hip nghts in the hitildins.
constructed thereon in accordance ith lass.
4348 The nt petition is aecordingi> allowed. 1 he notices at nneurc 'K and S' dated 4.7.O 11 and 30.7.2011 respectie1y are hereb> qua%hed. No ct)st%.
it ; 8MM!