Karnataka High Court
Veerupakshappa S/O Shivanandappa ... vs The Town Muncipal Council Byadgi on 18 December, 2024
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NC: 2024:KHC-D:18420
WP No. 107654 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 18TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
WRIT PETITION NO.107654 OF 2023 (GM-CPC)
BETWEEN:
VEERUPAKSHAPPA
S/O. SHIVANANDAPPA @ SHIVAPPA BALLARI,
AGE: 53 YEARS, OCC: BUSINESS,
R/O: SHATTAR STREET,
BYADGI, TQ: BYADGI, DIST: HAVERI,
P.C.NO.581106.
...PETITIONER
(BY SRI P. G. MOGALI, ADVOCATE)
AND:
1. THE TOWN MUNCIPAL COUNCIL BYADGI,
AT, TQ: BYADGI, DIST: HAVERI,
P.C.NO.581106, BY ITS CHIEF OFFICER.
2. RAMAIAH S/O. MUNIMARAPPA,
AGE: 53 YEARS, OCC: BUSINESS,
R/O: MALLUR ROAD, II CROSS,
Digitally signed by BYADGI, TQ: BYADGI, DIST: HAVERI,
VISHAL
NINGAPPA P.C.NO.581106.
PATTIHAL
Location: High ...RESPONDENTS
Court of Karnataka
(BY SRI HANAMANTHREDDY SAHUKAR AND
SRI NAGARAJ J. APPANNAVAR, ADVOCATE FOR R1;
NOTICE TO R2 IS SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO, ISSUE A WRIT OF
CERTIORARI QUASHING THE ORDER PASSED BY THE LEARNED CIVIL
JUDGE AND JMFC, AT. BYADAGI IN OS NO. 63/2022 DATED
04-08-2023 ON IA NO. I VIDE ANNEXURE-J AND RESTORE
OS NO. 63/2022 AND ETC.,
THIS WRIT PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
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NC: 2024:KHC-D:18420
WP No. 107654 of 2023
CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA) The present writ petition is filed calling in question the order dated 04.08.2023 passed on I.A.No.1 in O.S.No.63/2022 by the Civil Judge and JMFC, Byadagi1.
2. The relevant facts leading to the present writ petition are that the petitioner instituted O.S.No.63/2022 for the relief of declaration that the auction conducted on 29.03.2022 is null and void and for an injunction to restrain the defendants from interfering with the plaintiff's possession of the suit property without due process of law. It is the case of the plaintiff in the suit that the plaintiff was a tenant in respect of stall No.15 in the shopping complex constructed by the first respondent - Town Municipal Corporation, Byadagi2 in CTS No.1806/C1 in Byadagi town. That the petitioner having carried on business for 22 years, the first respondent - TMC issued 1 Hereinafter referred to as 'Trial Court' 2 Hereinafter referred to as 'TMC' -3- NC: 2024:KHC-D:18420 WP No. 107654 of 2023 auction notice dated 10.03.2022 proposing to auction all the shops in the shopping complex. Various other averments are made in the plaint which is not necessary for consideration of the present writ petition. Suffice to note that the first respondent - TMC had allotted the shop to respondent No.2 subsequently. Hence, the respondents herein were arrayed as defendants to the suit.
3. Along with the suit, the plaintiff had filed I.A.No.1 under Section 80(2) read with Section 151 of the Code of Civil Procedure3 to dispense with notice to defendant No.1. The respondents who are defendants in the suit entered appearance in the suit and contested the same by filing written statement and objections. Subsequently, the plaintiff filed I.A.No.4 under Order VI Rule 17 read with Section 151 of CPC to amend the plaint inter alia, to delete the first relief of declaration sought with respect to the auction proceedings held on 29.03.2022. The plaintiff also filed I.A.No.5 under Order 3 Hereinafter referred to as 'CPC' -4- NC: 2024:KHC-D:18420 WP No. 107654 of 2023 XXIII Rule 1 read with Section 151 of CPC for abandonment of the claim for declaration. The Trial Court by its order dated 04.08.2023, rejected I.A.No.1 and held that the suit of the plaintiff is not maintainable as per Section 283 of the Karnataka Municipalities Act, 19644 and closed the suit. Being aggrieved, the plaintiff has preferred the present writ petition.
4. Heard the submissions of learned counsel, Sri.P.G.Mogali for the petitioner and learned counsel Sri.Nagaraj J. Appannavar for learned counsel, Sri.Hanumanthareddy Sahukar for respondent No.1.
5. It is the vehement contention of the learned counsel for the petitioner that the Trial Court although heard submissions on I.A.Nos.1 to 5, erred in passing orders only on I.A.No.1. It is further contended that the plaintiff having filed I.A.No.4 for amendment of the plaint to delete the first relief of declaration as well as I.A.No.5 for abandonment of the claim with regard to the relief of 4 Hereinafter referred to as 'Act of 1964' -5- NC: 2024:KHC-D:18420 WP No. 107654 of 2023 declaration, the said applications ought to have been ordered upon prior to consideration of I.A.No.1. It is further contended that erroneously the Trial Court has held that the suit of the plaintiff is not maintainable despite a specific stipulation contained and Sub-section (2) of Section 284 of the Act of 1964. Hence, learned counsel seeks for allowing of the writ petition and granting of suitable reliefs.
6. Per contra, learned counsel for respondent No.1 vehemently opposing the writ petition, contends that the Trial Court has rightly rejected I.A.No.1 and closed the suit having regard to the fact that the suit of the plaintiff itself was not maintainable. It is further contended that the plaintiff cannot maintain the suit for declaration with regard to the auction proceedings conducted by respondent No.1 since the plaintiff having participated in the auction and being a unsuccessful bidder is squatting on the suit property by filing the present suit. Hence, learned counsel seeks for dismissal of the writ petition. -6-
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7. The contentions put forth by both the learned counsels have been considered and the material on record have been perused.
8. It is forthcoming that this Court vide interim order dated 19.02.2024, restrained the respondents from in any manner interfering with the peaceful possession of the petitioner of shop premises No.15 constructed in CTS No.1806/C1 on the bank of Ramanakatte in Byadagi town of Haveri District till the next date of hearing, which interim order has been periodically extended till this date.
9. It is further relevant to note that this Court had directed both the learned counsels to file their respective statement of accounts as regard to the amount due on account of rentals. Pursuant to the same, this Court by interim order dated 21.10.2024, noticing the submissions of learned counsel for the petitioner that the petitioner was paying rent of ₹1,000/- till the date of the suit and thereafter since the respondents had refused to receive the rent, this Court directed the petitioner to deposit the -7- NC: 2024:KHC-D:18420 WP No. 107654 of 2023 admitted rent of ₹1,000/- from May 2022 up to date before this Court. Subsequently, this Court has placed on record that the petitioner deposited a total sum of ₹61,266/- before this Court vide Demand Draft No.72282 dated 27.04.2024.
10. The petitioner has filed a memo dated 16.04.2024 placing on record the rents paid to respondent No.1/TMC from 24.11.2008 up to March 2022. Copies of the receipts have also been annexed along with the memo. Respondent No.1 has filed a memo for production of statement of account whereunder, it has set out that the amount due and payable by the petitioner is a sum of ₹10,93,756/-. It is forthcoming vide the statement of account furnished along with the said memo that respondent No.1 has calculated the monthly rent for the period of 2022-23 as well as 2023-24 in a sum of ₹3,25,200/- per year and the monthly rent for the period of 01.04.2024 to 31.05.2024 has been calculated at ₹54,200/-.
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11. It is forthcoming that the Trial Court vide impugned order dated 04.08.2023 has passed orders only on I.A.No.1. Vide the said order dated 04.08.2023, the Trial Court, after noticing Section 284 of the Act of 1964, has held as follows:
"9. Therefore on perusal of above said provision it very clear that an express bar is where a statute itself contains a provision that the jurisdiction of civil court is barred. In view of the aforesaid position in law, this court considered view that the civil suit filed by the plaintiff challenging the public auction by defendant No.1 was clearly barred. After filing of this suit the plaintiff ha filed application for delete the declaration prayer. But at the time filing of suit the plaintiff has filed suit for declaration and injunction. Accordingly, the suit of the plaintiff before this court is not maintainable. Thus the municipality authority recognize the power to levy certain fees and time to time increase the rent by public auction. That exercise of such power can not be questioned by person like the plaintiff under the pretext of injunction. That the lease expires by efflux of time of plaintiff, and immediately on expire of the same the plaintiff is bound to handover possession of suit property to the municipality. Therefore the plaintiff cannot be questioned the public auction by way of injunction."
(emphasis supplied) -9- NC: 2024:KHC-D:18420 WP No. 107654 of 2023
12. At the outset, it is relevant to note here that the plaintiff has filed the suit seeking for declaration and injunction. Subsequently, various interim applications were filed. It is forthcoming from the order sheet of the Trial Court that the Trial Court has heard on I.A.Nos.1 to 4 and posted the matter on 20.02.2022 for orders on I.A.Nos.1 to 4. Thereafter, the matter was adjourned on various dates for orders on I.A.Nos.1 to 4 and subsequently, the Trial Court vide its order dated 05.07.2023, posted the suit for hearing on maintainability of the suit. Thereafter, the Trial Court vide order dated 04.08.2023, dismissed I.A.1.
13. At this juncture, it is relevant to note that the plaintiff has filed I.A.No.2 under Order XXXIX Rules 1 and 2 R/w Section 151 of CPC along with the suit to restrain the defendants from interfering with the possession of the suit property without due process of law. I.A.No.3 was filed under Order VIII Rule 1A R/w Section 151 of CPC by the defendants to permit to produce documents.
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14. Hence, it is clear from the aforementioned that although the Trial Court heard the submissions on I.A.Nos.1 to 4 and the matter having been posted for orders on the said applications subsequently, the Trial Court vide order dated 05.07.2023, posted the suit for hearing on maintainability of the suit and thereafter passed the orders dated 04.08.2023.
15. The Trial Court while considering I.A.No.1 has held that the suit filed by the plaintiff challenging public auction was barred having regard to Section 284 of the Act, 1964. The Trial Court has further held that exercise of power by the municipality from time to time to increase the rent by public auction cannot be questioned by the plaintiff under the pretext of injunction. Further, the Trial Court held that lease period of the plaintiff expired by efflux of time and immediately upon expiry of the same, the plaintiff is bound to handover the possession of the suit property to the municipality and that the plaintiff cannot question the public auction by way of injunction.
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NC: 2024:KHC-D:18420 WP No. 107654 of 2023
16. At this juncture, it is relevant to note that Section 284(1) of the Act, 1964 stipulates that no suit can be instituted against any Municipal Council/Officer, etc., unless notice has been issued in writing to the municipality notifying the municipality regarding the cause of action, nature of relief, etc., However, Sub-Section (2) of Section 284 of the Act, 1964 specifically stipulates that nothing in the said Section shall apply to a suit in which only the relief of injunction is claimed, the object of which would be defeated by giving of notice or postponing of the suit.
17. In the present case, the plaintiff having initially filed a suit for declaration and injunction vide I.A.Nos.4 and 5 have sought for deletion/abandonment of the relief of declaration.
18. The Trial Court without considering I.A.Nos.4 and 5 erred in considering I.A.No.1 and holding that the suit of the plaintiff is not maintainable under the provisions of the Act of 1964.
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NC: 2024:KHC-D:18420 WP No. 107654 of 2023
19. It is further relevant to note that it is undisputed that the plaintiff is in occupation of the suit property i.e., stall No.15 in the shopping complex of respondent No.1/Municipality for more than 20 years. Notwithstanding the fact that respondent No.1-Municipality has conducted a public auction to auction all the 18 shops in the building owned by it, it is relevant to note that respondent No.1/Municipality has not initiated any legal proceedings to secure vacant possession of the shop from the plaintiff.
20. Learned counsel for respondent No.1/Municipality justifies the action of the municipality of conducting the auction and places reliance on certain Government orders, whereunder it is entitled to take possession of the shops upon expiry of the lease period.
21. Reliance placed by the Municipality on various Government instructions/orders to unilaterally take possession of the suit property without taking recourse to legal proceedings is misconceived.
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22. Learned counsel for the petitioner in support of his contentions relies on a Co-ordinate Bench of this Court in the case of Sampkhand Mandal Panchayat & another vs. Kusumakara Vishnu Kodiya & others5, wherein a Co-ordinate Bench of this Court was considering a fact situation where the application for temporary injunction was filed under Section 151 of CPC which was numbered as Civil Misc.No.23/1987, wherein an order of injunction was granted. The said order of injunction having been challenged before this Court, this Court noticed that no suit was filed and in the absence of a suit, an application for temporary injunction was filed under Section 151 of CPC which was numbered as Civil Misc. Case No.23/1987. Considering the said fact situation, this Court held as follows:
"7. Learned Munsiff has also failed to see that Subsection (2) of Section 80 of the Code, as inserted by Central Act 106 of 1976, enables the plaintiff to institute a suit with the leave of the Court without serving any notice as required by Sub-section (1) thereof, where an 5 (1988) 2 Kant LJ 174
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NC: 2024:KHC-D:18420 WP No. 107654 of 2023 urgent or immediate relief is required to be obtained against the Government or any public officer in respect of any act purporting to be done by such public officer in his official capacity. In such a case, the Court can grant interim order after giving to the Government or Public Officer as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit. Thus, there is a specific provision made in the Code of Civil Procedure to meet even the contingency of the nature, which is pleaded by the 1st respondent in the instant case.
8. It is therefore clear that the learned Munsiff has misdirected himself and acted illegally and in excess of his jurisdiction in granting an order of temporary injunction without there being a suit instituted before the Court for a permanent injunction or for any other relief in aid of which, the temporary injunction of the nature granted by him could have been sought for and granted."
(emphasis supplied)
23. Further, learned counsel for the petitioner places reliance on in the case of Yashod Kumari and Others vs. MCD and others6 wherein a Division Bench of Delhi High Court considering Section 80 of CPC and Section 53-B of the Delhi and Development Authority Act, 6 AIR 2004 Delhi 225
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NC: 2024:KHC-D:18420 WP No. 107654 of 2023 noticing the judgments of the Hon'ble Supreme Court in the case of Raghunath Das vs. Union of India and another7 wherein, the Hon'ble Supreme Court had considered the object of a notice under Section 80 of CPC, the Division Bench of the Delhi High Court has held as follows:
"10. In the present case there is no dispute that appellants had filed an application for grant of leave under Section 80(2) which was not dealt with and considered by the Court. On the contrary the Court had proceeded to frame a preliminary issue on the preliminary objection taken by respondents in their written statement and dismissed the suit for want of service of notice under Section 80. This, in our view, could not have been done, because once the Court was seized of appellant's application under Section 80(2) it ought to have disposed of this application first by either granting leave or refusing it in which case it was to return the plaint to them which they could refile after service of two months notice. It would not have dismissed the suit without doing and this renders the impugned dismissal order straightaway unsustainable. The order warrants setting aside on this ground alone."
(emphasis supplied) 7 (1969) 1 SCR 450
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24. Learned counsel for the respondents places reliance on the judgment of a Co-ordinate Bench of this Court in the case of Town Municipal Counsel Lakshmeswar vs. Siddalingappa8 wherein, this Court, considering a fact situation where a suit was filed by traders seeking for an injunction against the municipality restraining the municipality from collecting octroi proposed under a notification dated 16.01.1974. The Trial Court after the trial had decreed the suit which was affirmed by the First Appellate Court. Considering a second appeal filed under Section 100 of CPC, this Court held as follows:
"While the language of sub-sec. (1) of S. 384 of the Act leaves no doubt, it is mandatory in nature, the case law on the subject is exhaustive and the reason for such notice is that the State and the Local Bodies alike do require sufficient time to defend actions against them without which it would be a handicap. Normally, the State or the Local Body would not litigate with its constituents. The time required is for settling the dispute or the claim, if any, directly and if it is to be disputed, then it should have time to prepare its defence. However, sub-section (2) of 284 of the Act makes an 8 (1981) 1 KantLJ 345
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NC: 2024:KHC-D:18420 WP No. 107654 of 2023 exception when the action of the local body in any given case is likely to bring hardship and danger to the person and property of one of its constituents, the giving of notice or the lapse of time would not be effective or belated. For example, if the Municipality passes ant order with or without notice to pull down a building either in a case when it is in a very dilapidated condition and therefore dangerous to the occupants and the neighbours or when a construction is not authorised by the Municipality, then the giving of notice and the lapse of time would enable the Municipality to bring down the construction of the building as the case may be rendering it futile for the aggrieved person or affected person to file a suit for injunction restraining the proposed action. It is only in such cases of extreme urgency and particularly having regard to the nature of relief sought that one has to construe the exemption provided in sub-sec. (2) of S. 284 of the Act, not as a general exemption to all injunction suits. Having regard to the peculiar circumstances and urgency and the facts and the nature of injunction sought for sub-sec. (2) of S. 284 should be understood. The trial court was in error in holding that non- compliance with sub-sec. (1) of S. 284 of the Act was not fatal to the suits on the facts of the cases on hand."
(emphasis supplied) 25.1 It is relevant to note that in the said case of Siddalingappa8, this Court has specifically noticed the
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NC: 2024:KHC-D:18420 WP No. 107654 of 2023 circumstances under which an injunction could be sought. Hence, this Court noticed that the relief sought was with regard to the levy of octroi and this Court noticing the fact situation has held that the plaintiff had ample time to give a notice and then file a suit. In fact, the legal position in the said case would aid the case of the petitioners. The findings and decision rendered are in a completely different fact situation as has been noticed above.
26. The reliance is placed by the learned counsel for the respondent on a Co-Ordinate Bench of this Court in the case of Bhawarilal and another vs. S. Jaichand and others9 will not aid the case of the respondents since the said case, arose in a different factual matrix wherein this Court held that the suit filed by 3rd party challenging the auction conducted by a municipality was not maintainable.
27. Learned counsel for the respondents also placed reliance on the judgment of the Hon'ble Supreme Court in 9 (1975) 1 KantLJ 1
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NC: 2024:KHC-D:18420 WP No. 107654 of 2023 the case of N.D.M.C vs. Satish Chand (deceased) by L.R. Ram Chand10 wherein, the Hon'ble Supreme Court was considering a question regarding maintainability of a civil suit to challenge the assessment and levy of property tax by a municipality. The said case also will not aid the case of the respondents, in view of the fact that the same arose out of completely different fact situation.
28. It is clear and forthcoming from the aforementioned, that the procedure adopted by the Trial Court is ex-facie erroneous and liable to be interfered with. The plaintiff having specifically filed I.A.Nos.4 and 5 vis-a- vis the first relief of declaration, the Trial Court erred in adjudicating upon I.A.No.1 after hearing regarding maintainability of the suit without considering I.A.Nos.4 and 5.
29. Further, although the Trial Court noticed Section 284 of the Act, 1964, the Trial Court did not consider Sub-Section (2) of Section 284 of Act, 1964 10 AIR 2003 SC 3187
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NC: 2024:KHC-D:18420 WP No. 107654 of 2023 which specifically entitled the plaintiff to file a suit claiming injunction without issuing of a notice as contemplated under Section 284(1) of the Act, 1964.
30. The Trial Court further erred in recording a finding that the plaintiff cannot question the power of auction under the pretext of injunction. The Trial Court misdirected itself in not noticing that respondent No.1/TMC under the guise of conducting a public auction was interfering with the possession of the plaintiff without taking any recourse under law. The Respondent No.1/TMC having admitted that the plaintiff was in possession of the suit property as a lessee for more than 20 years, was required to take necessary action in accordance with law.
31. In view of the aforementioned discussion, the following:
ORDER
i) The above Writ Petition is partly allowed.
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ii) The order dated 04.08.2023 passed on I.A.No.1 in O.S. No.63/2022 by the Civil Judge and JMFC., Byadgi is set aside.
iii) The Trial Court shall conduct further proceedings to consider I.A.Nos.4 and 5 prior to consideration of I.A.Nos.1 and 2 in O.S. No.63/2024 in accordance with law.
iv) Until consideration of the applications as aforementioned, respondent No.1/defendant No.1/Municipality shall not interfere with the peaceful possession and enjoyment of the plaintiff's in respect of the suit property subject to the petitioner/plaintiff pay a monthly rent/damages of ₹10,000/- per month. The rent/damage amount paid shall be subject to final outcome of the suit. The petitioner/plaintiff shall pay the said monthly ₹10,000/- directly to the respondent No.1/Defendant No.1/Municipality every
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NC: 2024:KHC-D:18420 WP No. 107654 of 2023 month and place the same on record before the Trial Court in the suit. In the event the defendant No.1/Municipality refuses to receive the said amount, the petitioner/plaintiff shall be at liberty to deposit the said amount before the Trial Court in the suit.
v) All contentions of the parties are left upon.
vi) The amount deposited by the petitioner before this Court shall be transmitted to respondent No.1 by way of direct remittance to the Bank account of respondent No.1.
Learned counsel for respondent No.1 to
furnish the requisite details in that
regard before the Registry to enable
remittance.
SD/-
(C.M. POONACHA)
JUDGE
SH: Para 1 to 6
SSP: Para 7 to end
CT-ASC List No.: 1 Sl No.: 62