Karnataka High Court
P. S. Venkatesh S/O Surendra Sa Pawar vs The Commissioner on 12 October, 2012
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 12th DAY OF OCTOBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE RAM MOHAN REDDY
WRIT PETITION NO. 64172/2010 (GM-PP)
BETWEEN :
P. S. Venkatesh
S/o. Surendra Sa Pawar
Age: 52 years, Occ: Business
R/o. Stall No.10, Ward No.5
Station Road, Hospet, Dist. Bellary
... PETITIONER
(By Sri. F. V. Patil, Adv.)
AND:
1. The Commissioner
Hospet City Municipality
Bellary District.
2. State of Karnataka
Represented by its Secretary
Urban Development Department
Multistoried Building
Bangalore
... RESPONDENTS
(By Smt. Vidyavathi K., AGA for R2
Sri.V. M. Sheelavant, Adv. for R1)
---
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE IMPUGNED ORDER ANNEXURE-C, BEARING
NO.KARSAM:NASOHO:LIJA-01:2006-2007 DATED
23.02.2007 PASSED BY RESPONDENT NO.1 EVICTING THE
PETITIONER FROM THE PREMISES IN QUESTION AND
ALSO QUASH THE IMPUGNED ORDER VIDE ANNEXURE-D,
2010 BEARING NO.M.A.NO.05/2007 PASSED BY THE
COURT OF THE PRINCIPAL DISTRICT AND SESSIONS
JUDGE, AT BELLARY.
THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY THE COURT MADE THE FOLLOWING:
ORDER
Petitioner was inducted as a tenant of the premises bearing No.10 in the shopping complex at Station Road, Hospet under the 1st respondent - City Municipality, who put up a complex under 10th Finance Scheme, for a period of 4 years and 11 months from 01.10.1998 to 31.08.2003, being the highest bidder for its use and occupation, in the public auction. The lease when stood terminated by afflux of time, petitioner did not hand over vacant possession of the premises, but continued to occupy the premises. The 1st respondent initiated proceeding under the Karnataka Public 3 Premises (Eviction of Unauthorized Occupants) Act, 1974, which culminated in the order dated 23.02.2007
- Annexure 'C' recording a finding that the petitioner was in unauthorized occupation of the premises and was directed to vacate and hand over the vacant possession of the premises. That order was called in question in M.A.No.5/2007 before the Principal District and Sessions Judge, Bellary, whence the appeal was rejected by order dated 08.04.2010 - Annexure 'D'. Hence this petition invoking Article 227 of the Constitution of India.
2. The learned Counsel for the petitioner submits that, though the period of lease stood terminated by efflux of time, nevertheless, pursuant to the circular dated 26.10.2009 - Annexure 'B' is entitled to continue in possession on payment of enhanced rate of rents for another 12 years. The learned Counsel next submits that the circumstances in 1964, when the Karnataka 4 Municipalities Act was promulgated is different from that in the year 2003 when the lease period expires. In other words, the learned Counsel submits that, petitioner be permitted to continue to occupy the premises and carrying on business for the next 12 years on payment of higher rental, having regard to the recent observations of the Apex Court in the 2G spectrum case.
3. Learned Counsel for the respondents while critically opposing the submission of the learned Counsel for the petitioner submits that, the circular dated 26.10.2009 - Annexure 'B' is in application to the petitioner who is an unauthorized occupant after the lease having stood terminated by efflux of time on 31.08.2003. It is next contended that, the Public Premises constructed with public funds, if permitted to be occupied by unauthorized occupants, is not only in violative of Article 14 of the Constitution of India, but 5 also violative of Rule of law as declared by the Division Bench in case of Mohan P. Sonu Vs. State of Karnataka and Others reported in 1992(2) KLJ 245. Learned Counsel hastens to add that the observations of the Supreme Court in 2G spectrum case has no application to the immovable property belonging to the 1st respondent - Statutory Authority.
4. Having heard the learned Counsel for the parties, perused the pleadings and examined the orders of the Estate Officer as well as the District Judge in the appeal, there is no dispute that the petitioner, the highest bidder in a public auction, having accepted the period of tenancy of 4 years and 11 months commencing from 01.10.1998 to end with 31.08.2003, cannot be heard to contend that he is entitled to continue in the occupation of the premises for a further period of 12 years. If permitted it cannot but be said 6 will be in breach the tender condition and hence violative of Article 14 of the Constitution of India.
5. The observations of the Apex Court in the case of Saroj Screens Vs. Ghanshyam (AIR 2012 SC 1649) in the circumstances is opposite:
"15. The question whether the Staet and/or its agency/instrumentality can transfer the public property or interest in public property in favour of a private person by negotiations or in a like manner has been considered and answered in negative in several cases. In Akhil Bharatiya Upbhokta Congress v. State of Madhya Pradesh (2011) 5 SCC 29 : (AIR 2011 SC 1834: 2011 AIR SCW 2346), this Court was called upon to examine whetehr the Government of Madhya Pradesh could have allotted 20 acres land to Shri Kushabhau Thakre Memorial Trust under the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 read with M. P. Nagar Tatha Gram Nivesh Vikasit Bhoomiyo, Griho, Bhavano Tatha Anya Sanrachanao ke Vyayan Niyam, 1975. After noticing the provision of the Act and the Rules, 7 as also those contained in M.P. Revenue Book Circular and the judgments of this Court in S.G. Jaisinghani v. Union of India, AIR 1967 SC 1427, Ramana Dayaram Shetty v. International Airport Authority of India (1979) 3 SCC 489: (AIR 1979 SC 1628), Erusian Equipment and Chemicals Ltd., v. State of W.B. (1975) 1 SCC 70: (AIR 1975 SC 266), Kasturi Lal Lakshmi Reddy v. State of J & K (1980) 4 SCC 1: (AIR 1980 SC 1992), Common Cause v. Union of India (1966) 6 SCC 530: (AIR 1996 SC 3538: 1996 AIR SCW 3696), Shrilekha Vidyarthi v. State of U.P. (1991) 1 SCC 212: (AIR 1991 SC 537: 1993 AIR SCW 77), LIC v. Consumer Education & Research Centre (1995) 5 SCC 482: (AIR 1995 SC 1811: 1995 AIR SCW 2834), New India Public School v. HUDA (1996) 5 SCC 510: (AIR 1996 SC 3458: 1996 AIR SCW 3164), the Court culled out the following propositions:
"What needs to be emphasised is that the State and/or its agencies/instrumentalities cannot give largesse to any person according to the sweet will and whims of the political entities and/or officers of the State. Every 8 action/decision of the State and/or its agencies/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well-defined policy, which shall be made known to the public by publication in the Official Gazette and other recognised modes of publicity and such policy must be implemented/executed by adopting a non-discriminatory and non-arbitrary method irrespective of the class or category of persons proposed to be benefited by the policy. The distribution of largesse like allotment of land, grant of quota, permit licence, etc. by the State and its agencies/ instrumentalities should always be done in a fair and equitable manner and the element of favouritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the State.
We may add that there cannot be any policy, much less, a rational policy of allotting land on the basis of applications made by individuals, bodies, organisations or institutions dehors an invitation or advertisement by the 9 State or its agency/instrumentality. By entertaining applications made by individuals, organisations or institutions for allotment of land or for grant of any other type of largesse the State cannot exclude other eligible persons from lodging competing claim. Any allotment of land or grant of other form of largesse by the State or its agencies/instrumentalities by treating the exercise as a private venture is liable to be treated as arbitrary, discriminatory and an act of favouritism and/or nepotism violating the soul of the equality clause embodied in Article 14 of the Constitution."
6. Applying the said principles, it is needless to state that the petitioner is disentitled to claim extension of the period of lease of 12 years from 01.09.2003 onwards (i.e., on the expiry of lease on 31.08.2003) under the circular dated 26.10.2009 Annexure 'B'. Even otherwise, item No.3 in the circular though said to apply to persons in occupation of public property and whose period of lease has expired entitling them to continue to occupy the premises on extension of lease 10 for the next 12 years on payment of enhanced rentals, I am afraid in violative of Section 72 of the Karnataka Municipalities Act read with Rule 39 of the Karnataka Municipalities (Guidance of Officers, Grant of Copies and Miscellaneous Provisions) Rules, 1966, providing for holding a public auction in the matter of public properties so as to receive the highest revenue from such properties belonging to the Municipality, as held by Division Bench of this Court in Mohan P. Sonu Vs. State of Karnataka and Others reported in 1992(2) KLJ 245.
7. The submission that the observations of the Supreme Court in 2G-spectrum case equally applies to the petitioner, is also unacceptable. It is needless to state that, if the petitioner makes an offer in the public auction, to be held for the right to use the premises in question and if found to be the successful bidder, would 11 be entitled to be put in possession of the premises and not otherwise.
8. Petitioner having had the benefit of use of the premises for the past 9 years, after termination of the lease, must be saddled with the liability to pay damages for use and occupation. According to the learned Counsel for the Municipality, the right to use of the shop No.2 in the very same complex when auctioned fetched Rs.9,000/- per month as rent during the year 2009 and if that is so, the petitioner cannot but pay monthly damages at the same rate from 2009 onwards up to date of handing over vacant possession of the premises. As regards the period from 01.09.2003 onwards petitioner is liable to pay damages at the rate of Rs.3,500/- per month, since Sri. F. V. Patil very fairly submits that sum is reasonable.
In the result, the petition fails and is accordingly, rejected. The petitioner to comply with the above 12 directions relating to payment of damages within one month and to hand over vacant possession of the premises within six months. In the light of the observations made supra, item No.3 in the circular Annexure 'B' is accordingly quashed.
SD/-
JUDGE gab/-