Karnataka High Court
Savithri V. Rao vs Commissioner, Corporation Of The City ... on 9 June, 1986
Equivalent citations: ILR1986KAR2167, 1986(2)KARLJ132
JUDGMENT Rama Jois, J.
1. These Writ Appeals are presented against the common Judgment of the learned Single Judge dismissing the Writ Petitions presented by the appellants in which they had questioned the legality of the notices issued by the Corporation of the City of Mangalore, ('the Corporation' for short) by which the licenses granted in favour of the appellants for occupying a portion of the premises in a public market belonging to the Corporation were terminated and they were called upon to vacate the premises.
2. The facts of the case, in brief, are as under : 16 shop premises belonging to the Corporation were disposed of by auction in the year 1980. The notification proposing to hold a public auction of the 16 shops was issued by the Corporation on 22-10-1980, vide Annexure-A. All the appellants were successful bidders for securing the license for the period ending 31-3-1982. In terms of the conditions of auction, each of them deposited an amount equal to three months license fee and also entered into an agreement with the Corporation. Copy of the agreement is filed as Annexure-B in the petitions. According to the terms of agreement, the period of license was upto 31-3-1982. Sub-clause (iv) of Clause 14 and Clause 15 of the agreement, which are relevant for the purpose of this case, reads :
"14 (iv) If the sums of money Hereby reserved or any of them or any part thereof respectively shall be in arrears for the space of fifteen(15) days next after the same have become payable whether lawfully demanded or not or in case default shall be made by the licensee in the observance or performance of the any of the covenants on his part to be observed or performed then and in either of the said case it shall be lawful for the Corportion of the City of Mangalore in addition to and without prejudice to its other rights and remedies consequent on same by notice in writing sent to the licensee to his address given herein to determine those presents and license hereby granted shall immediately cease and determine but without prejudice to any right of action, or remedy of the Corporation of the City of Mangalore in respect of any previous breach of any covenants on licensee herein contained and the licensee shall be responsible for all loss or damage sustained by the Corporation of City of Mangalore, by reasons of such determination.
15. The Corporation of the City of Mangalore hereby reserves the right to clear the shop departmentally on the termination of the license and if found necessary breaking open the lock and by removing the licensee from the shop through departmental process."
After occupying the shop premises, except for a short period during which the appellants paid the license fee, they failed to pay the license fee. In the circumstances, a notice dated 27th July 1981 or 28th July 1981 was issued to each of appellants. As the contents of all the notices are similar, it is sufficient to set out the contents of one such notice. The notice issued to the first appellant dated 27-7-1981 Annexure-(C) reads :
"A8/11200/81-82 City Corporation Office, Mangalore,
Dated: 27-7-81.
Sub : Central Market Fish Wing Main Block Shop No. 1--non payment of license fees--regarding.
Ref : 1. This office proceedings No. 11815/77-77 dated 26-2-81
2. Report dated 10-3-82 of the Executive Engineer, City Corporation, Mangalore.
3. This office Notice No. 11815/76-77 dated 10-6.-1982.
Notice under Sections 369 & 370 of the KMC Act, 1976.
Your attention is invited to Clause No. 14 (iv) and 15 of the Deed of License executed by you in favour of the Corporation of the City of Mangalore under the said clauses the City Corporation has got right to determine the license granted in your favour if the license fee due in respect of the right to vend in the aforesaid shop is not paid within 15 days of the due date.
You are in arrears of licence fee as from 6-3-1981 up to July 1981 amounting to Rs. 28,064-50 (Rupees twentyeight thousand sixty four and paise fifty only) with interest at 12 1/2% p.a. from the respective due date of payment.
In view of your default in the payment of license fee the license is hereby terminated. You arc called upon to cease vending in the aforesaid shop forthwith by removing all the movable therein failing which further departmental action as per Clause 15 of the Deed of License will be taken against you without further reference. The right to collect the arrears of license fee by the appropriate proceedings is reserved.
Sd - Commissioner."
Questioning the legality of the said notices, the appellants presented Writ Petitions before this Court. An interim order was issued by this Court in the Writ Petitions restraining the respondent from dispossessing the appellants from the shop premises under their occupation.
3. None of the facts stated above are in dispute. Along with the statement of objection, a statement was prepared and produced before the Court regarding the total amount of license fee due from each of the appellants along with interest at the rate of 12 1/2 per cent upto February, 1982. The same has also been extracted in the order of the learned Single Judge. It reads:
Name of the Licensee Shop No. Monthly License Fee Total License fee Interest upto Feb 1982 at 12 1/2% p.a. Total Amount due 1 2 3 4 5 6 M. Savithri V. Rao WP 18100/81 1 5,800-00 57,064-50 4,219-90 61,284-40 C.K. Abbas WP 18101/81 2 4,200-00 40,916-15 3,015-87 43,932-02 K.M. Noorulla WP 18102/81 4 4,000-00 49,032-25 4,368-19 53,400-00 M. Umesh WP 18103/81 6 3,000-00 30,107-15 2,352-65 32,459-80 Arunakumar Nayak WP 18104/81 7 4,100-00 50,390-35 4,504-66 54,895-01 M/s. S.A Ekambaram & Sons WP 18105/81 8 3,100-00 31,110-75 3,430-95 33,541-70 P. Gokulchanda Baliga WP 18106/81 9 3,700-00 34,851-65 3,602-21 37,453-86 K.M. Prabhu WP 18107/81 10 3,700-00 33,538-71 3,442-60 35,981-31 P.S. Kamath WP 18108/81 11 3,300-00 29,912-90 2,180-22 32,093-12 P.S. Armugam WP 18109/81 12 3,000-00 30,107-15 2,352-65 32,459-80 U. Varadarya Nayak WP 18110/81 13 3,300-00 32,361-30 2,387-26 34,748-56 Rama Jewellery WP 18111/81 14 3,200-00 31,587-10 2,332-48 33,919-58 B.R. Bajapopet WP 18112/21 15 3,100-00 31,100-75 2,433-20 33,543-95 Total :
4,84,090-71 72,622-84 5,56,713-55 These figures were also not disputed. The main contention urged by the appellants before the learned Single Judge was that even on the basis that the licenses granted to the appellants had been terminated in terms of the agreement for default in payment of license fee and consequently their occupation had become unauthorised, they could be evicted only in terms of the provisions of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974, ('the Act' for Short), according to which in the first instance an order of eviction has to be passed by the Estate Officer nominated under the provisions of the Act and ' thereafter the aggrieved party would have the right of appeal to District Judge.
4. As against the above contention, the learned Counsel for the Corporation relied on Section 369 of the Karnataka Municipal Corporations Act, 1976, which authorised the Corporation to regulate the use of public markets and in particular Section 370 of the said Act which empowered the Commissioner to take steps for eviction of a person occupying a public market on any one of the grounds set out in the Section. Section 370 of the said Act reads:
"370. COMMISSIONER'S CONTROL OVER PUBLIC MARKETS: (1) No person shall,without the permission of Commissioner, or if the fees have been farmed out, of the farmer, sell or expose for sale any animal, or article within any public market.
(2) Any person who contravenes Sub-section (1) or any condition of the license or any regulation made under Section 378 or in any bye-law made under Section 423 or who commits default in payment of the fees leviable under Section 369 may after three days' clear notice be summarily removed from such market by any corporation officer or servant and any lease or tenure which any person may possess may be terminated for such period and from such date as the Commissioner may determine without prejudice to the legal rights of the corporation to prosecute the person or to recover the fees leviable under Section 369 and expenses, if any, which the Corporation may incur in such removal."
The learned Single Judge was of the view that while the provisions of the 1974 Act were general provisions, Section 370 of the Karnataka Municipal Corporations Act, 1976, was a special provision applicable only in respect of public market, and, this being a special provision, the Corporation could legitimately invoke its power under this Section for evicting the appellants as they had become defaulters in payment of license fee in contravention of the terms and conditions of the license under which they were permitted to occupy the premises in the market belonging to the Corporation. The Learned Single Judge who disposed of the Writ Petitions by his order dated 20-4-1982 was of the view that the term of license itself had come to an end during the pendency of the Writ Petitions on 31-3-1982 and consequently the appellants had no right to continue beyond the said date. In the circumstances, the Learned Single Judge dismissed the Writ Petitions with exemplary costs. Aggrieved by the said order, the appellants have preferred these appeals.
5. At the time of admitting the appeals, the Division Bench made the following order :
"On a casual perusal of the judgment under appeal, one would be tempted to dismiss the same without even hearing the Counsel for the appellants, but on a close scrutiny we find that there is a serious question to be tried. The question is ; ''Whether the Corporation could invoke the provisions of Section 370 of the Karnataka Municipal Corporation Act, 1976, for eviction of occupants of shops in a market or whether the Corporation is obliged to have recourse to the procedure provided under the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974."
It is the above question which we are required to answer in these appeals. Shri Shekar Shetty, Learned Counsel for the appellants, strenuously contended that as against the general provisions available in the Rent Control Act, according to which an owner of a premises could seek eviction on grounds specified in Section 21 of the Rent Control Act after making out aground for eviction of a tenant, the 1974 Act had been enacted prescribing a special procedure and special forum for evicting persons found to continue in unauthorised occupation of the public premises and this being a special provision applicable to premises belonging to the Corporation, the action for eviction of the appellants from the premises in question could have been initiated only under that special law and the Corporation cannot without resorting to the provisions of the said Act, take steps to evict the appellants from the premises in question under Section 370 of the Municipal Corporations Act.
6. It is true that the 1974 Act is a special enactment which prescribes a special procedure for eviction of unauthorised occupants from public premises and having regard to the definition of the word 'public premises' in the said Act, every premises belonging to a local authority like the Corporation is a public premises. But it is also a general provision applicable to all premises of the State and all its instrumentalities including local authorities. Section 370, however, is a special provision applicable to public markets belonging to the Corporation. It has been incorporated designedly by the Legislature to regulate the occupation of public markets. It has no application to all other buildings/premises of the Corporation, that is, other than public markets. In respect of buildings/premises other than public markets, the Corporation, in order to evict an unauthorised occupant, has to resort to the 1974 Act. We respectfully agree with the view taken by Puttaswamy, J. that Section 370 of the Municipal Corporations Act is a special provision applicable only for public markets and therefore must prevail. It is also significant that the Municipal Corporations Act is a later enactment than the 1974 Act. The incorporation of Section 370 into the Municipal Corporations Act makes it clear that the Legislature considered that a special provision as the one contained in the said Section was essential in order to control markets and the power to evict a person occupying a premises in a public market on any one of the grounds specified in Section 370 of the Act was essential in public interest, and, therefore the Legislature has considered that such a special power has to be conferred on the Commissioner of the Corporation under Section 370 of the said Act. The contention advanced for the appellants, if accepted, would render Section 370 otiose and therefore should be rejected. Under the said Section a Corporation is entitled to evict any person occupying a premises in a public market, if any one of the grounds mentioned in the said provision was available,
7. As far as these cases are concerned, it is an admitted fact that the appellants are defaulters and defaulters to the tune of several thousands of Rupees prior to the issue of the notices, which is apperant from the statement, extracted earlier. This is one of the grounds expressly set out in Section 370 of the Karnataka Municipal Corporations Act on the basis of which the Commissioner could have taken action against the appellants for evicting them.
8. From Clauses 14(iv) and 15 of the agreement, extracted earlier, it may be seen that the license though granted upto 31-3-1982 was terminable even prior to that date if the appellants committed default in paying the license fee. As the appellants committed default in paying the license fee in terms of Clause 14(iv) of the agreement, the Commissioner intimated each of the appellants that his/her license was terminated for default in paying the license fee. The Commissioner also called upon each of the appellants to stop his/her business and vacate the premises and also informed that if he/she were not to vacate the premises, action would be taken to evict him/her from the premises by force. In issuing the above notice, the Commissioner invoked his powers under Section 369 of the Municipal Corporations Act to regulate the markets and Section 370 of the said Act to evict a person on any of the grounds set out in the said Section, and there is express reference to these Sections at the top of the notice issued to each of the appellants.
9. Learned Counsel for the appellants submitted that the notices were not issued under Section 370 of the Municipal Corporations Act and the notices did not give, three days' time to the appellants to vacate the premises. We see no force in this submission. The notices were issued in terms of Section 370 of the said Act read with Clause 15 of the agreement consequent on the termination of the license in terms of Clause 14(iv) of the agreement. It was made clear to each of the appellants by the issue of the said notices that if in terms of the said notices they did not voluntarily vacate the premises, action would be taken in accordance with law, which means the Commissioner would have waited for three days and thereafter he would have proceeded to evict each of the appellants from the premises he was occupying.
10. After careful consideration and close scrutiny of the question set out in the order of admission, extracted at paragraph 5 of this Judgment, we answer the question in the affirmative.
11. Further, as pointed out by the Learned Single Judge, we are also of the opinion that when the petitioners approached this Court, the period for which the license was granted, which had been terminated by the Commissioner by the issue of notices impugned in the Writ Petitions, was only upto 31-3-1982. Therefore, even in terms of the license granted, the appellants had no right to remain in the premises on and after 31-3-1982. The appellants have not only succeeded in continuing in the premises for the whole of the license period by virtue of an interim order, but have also continued till now on account of the interim order granted in the Writ Petitions in the first instance and thereafter in these appeals for more than 4 1/2 years over and above the period for which they had secured license at public auction. The original period of license was less than two years and they have continued in the premises by virtue of an interim order for more than double the period for which they had secured the license. In these circumstances, Learned Counsel for the Corporation submitted that exemplary costs should be imposed on the appellants. It may be seen that the appellants in terms of the license were in duty bound to vacate the premises by 31-3-1982, but they have turned the order of the Commissioner terminating their license on 27-7-81 to their favour by securing interim orders and by continuing even after 31-3-1982 for more than four years without license from the Corporation. Therefore, the Learned Counsel for the Corporation is fully justified in submitting that exemplary costs should be awarded.
12. In the result, we make the following order :
(i) The Writ appeals are dismissed with exemplary costs. Each of the appellants shall pay Advocate's fee of Rs. 1,000/- to the Corporation.
ORDER ON ORAL APPLICATION Immediately after the pronouncement of the Judgment, Learned Counsel for the appellants made an oral application under Article 134-A of the Constitution of India to grant a Certificate of fitness to appeal to the Supreme Court under Article 133 of the Constitution of India. In our opinion, the case does not involve any substantial questions of law to be decided by the Supreme Court. Hence the application is rejected.