Karnataka High Court
G.A.Suresh Kumar vs The Commissioner on 4 November, 2010
NV
1 WP 32053/09
IN THE HIGH COGRT or KARNATAKA AT BANGALORE
DATED THIS THE 4"*DAY OF NOVEMBER, 2010
BEFORE:
THE HON'BLE MR. JUSTICE A.S. PAcHHApURE<2Vo*
WRIT PETITION No.32053 gg 2009 {GMac?cjftf*:°
BETWEEN: a""-
G.A. Suresh Kumar,
S/o. G.D.Anantharajaiah,
Major,
R/at D.No.783/2,
Bank Bungalow Road,
Nazarabad, I 2' « «I V-,
Mysore. P»'_': {I;'Hj;,;, PETITIONER/S
{By Smt. Pritha Srikumar for MjST2Ihdue Law,
Advs.} ',~.u2 1 3 . v]; I
1. The Commissionergts T
Mysore City Corporation,
. S-Rg Road, "
,E Mysdré City. ...... _
_'D,Srifiiva§an}u
'.S/OT N;CaDe§éndran,
Major, .. ' 1.
R/at n.No{37/1,
u Durgadevi Temple Road,
'INa2araba6,
2* Mysore City. ... RESPONDENT/S
2§{By Smt. Geethadevi M.P. for M/s. M.P. Assocs.,
V Advs. for R1. R2 served}
'it**
This Writ Petition is filed u/Articles 226 and
227 of the Constitution of India praying to set
aside the Orders of the Court of the I Civil Judge
2 WP 32053/09
{Jr. Dn.], Mysore, Dt. 21.11.2008 and 25.4.2009 in
Ex. No.331/2007 at Annexures--J and M.
This Writ Petition having been heard, and
reserved for Order, this day Pachhapured':J.,
Pronounced the following: "'* " F
ORDER
The petition is filed chaiiengine the asset to hold enquiry under the provisions of order 2i:eeieu 97, 98 and 100 r/w. Section lfii c§c,.'.' A
2. The facts re;evant~i§:dfihe ffifP9$9§°f this petition are as underf"
The petitiofiér herein is the owner and landlord {hereinegter referred to as "the landlordn} of the property hearing-_No.1$29 new No.33/3 situated at ~,Makka§iVChowk,"Srirampet, Mysore. The 2"" respondent iris "the, tenant [hereinafter referred to as "the tenant"f in possession of the said property since V _many "yearsqi The tenant filed H.R.C. No.90/1996 .u*nnder Section 19 of the Karnataka Rent Control Act, i.i9fi1--seeking permission to deposit the rent. The 1"
"ivrespondent, the Comissioner of Mysore City tcorporation was also a party to the said proceedings. The petition was dismissed with a direction to the tenant in the said petition to pay I 2' ,.x fisiew 3 WP 32053/09 the rent to the landlord. Aggrieved by the Order, the tenant preferred a revision in R.R. No.85/1998 (and the said revision petition came to be dismissed as withdrawn and the copy of the Ordery heed heen_ produced at Annexure~"B". The tenant dapproachedwpx this Court in £.R.R.P. No.107g/1399;ehei;engihg she Order and, the revision _ petition camep .to}."be*d dismissed.
3. Thereafter, 'the ;iendie£d_ institfited 0.S. No.365/1999 in the cetst "eé'5th§xf¢;§d1 Judge [Jr. Dn.3 at Mysore against the tenant, the 2"' respondent herein seehinfi his eyiction. The suit came to be decreed yide Judéfiént and Order dated 08.03.2002 and the copy of the sane has been produced at Annexurem "*fD".sr3 Aggrieved["byV the Judgment and Decree, the .Vteheht_"app£oeched the Principal Civil Judge [Sr. Dn.][*Mysore in R.A. No.115/2002 and the said appeal [also cane to be dismissed confirming the decree of :eviction. Aggrieved by the Orders of both the . Courts, the tenant approached this Court in R.S.A. p we 1877/2005 and the said appeal was dismissed vide "Judgment and Order dated 09.08.2006. £;W K' 4 WP 32053/O9
4. It is thereafter that the petitioner- landlord filed Ex. Case No.331/2007 against 7the tenant i.e., the 2"" respondent herein "seeking_ possession of the petition premises »~ dfinringl thew pendency of the execution} petition; H they ,;* respondent i.e., the City_ Corporation Ref 'M§s5:é=_ through its Commissioner filed an application under the provisions of order Zltfinie §71 98 and 100 r/W. Section 151 CPC., §§qfi¢$:1n§_L§fi§, Court not to dispossess thew fierpdratioh Lfroeyfithei possession of the petition g;éaig§§pa§a_£9 dismiss the execution petition.m-_l*
5. 7.It is_ the "contention of the Corporation that Vthe petition 'premises including many other x"properties ,in 'Makkaji Chowk have been acquired ithrongh*the%Special Land Acquisition Officer, City Improvement Ernst Board now Mysore Urban Development 'Authority by issuing preliminary notification No.PLA :I~:o:3i/._5u5--é6, dated 15.12.1955 and in the said . notification, the jpetition. premises has also been 2 included and a final notification has been issued.
"Ultimately, an Award has also came to been passed on 23.03.1974 and the landlord/decree--holder claimed 3'
-.\/, 5 WP 32053/O9 the compensation of ?9,157~O0 + 50~O0 being Value of 1/3 share of the eastern portion out of the petition schedule premises. It is also the case. oi Ithe Corporation that on 21.04.2007, the poeeese;eh5,esp the property has been taken over by the Corporation, "
and a notification in this regard_has been published in the official gazette. ,fience it was the requestv of the Corporation not to dispossess and te dismiss the execution petition,
6. The application was opposed on the ground that the Corporqtionlhas.no*richt; title or interest in thej petitien_lpremises_ and. that an application under Order 21 Rule 97 CFC is not maintainable. It is also the contention of the Corporation cannot be than oefieetor for eiecution of the decree and that the "decreeeholder has fought the litigation up~to this Courtw in 'getting a decree for possession sf the epetitienhipremises. On such other grounds, the upetitioner sought for rejection of the application.
7. The trial Court heard both the learned ecounsel for the parties and on appreciation of the material on record has ordered for an enquiry under Order 21 Rule 97, 98 and 100 r/w. Section 151 CPC «av 6 WP 32053/G9 and aggrieved by this Order, the present petition has been f i led .
8 . I have heard the learned counsel' Petitioner and the 1st responde:1t~,.._}£A'he'_' 'r,esfi5onde"z':_t it though served is absent.
9. It is not in disp1'1tn'e:"'."hat is the owner and the la:1"dJ_.'ord:'"of'"jaremises, so also the long Section 19 of the Karnatakat way of suit.
It is as the petition under $ve(;.tViAon:Vi"1:§;;::A_o_f kernataka Rent Control Act 1951 filed No.90/1995 is a summary proceeding-Land petitioner received rent of petiitionrpretmises, wherein the Corporation jvjrcanspondeint in the said petition, the snaid heen passed in a summary proceeding cannot v_!'<3e'1¥.v:onsidered so far as an enquiry with "'«._tr:»egard" the title of the properties is concerned. it more,' it is relevant to note that in the that was riled by the petitioner for eviction uifof the tenant, the petitioner did not implead the Corporation as a defendant. in the circumstances, the Judgment and decree passed in the suit, gs' 'A304:-.o>= 5% 7 WP 32053/09 confirmed by this Court is not binding upon the Corporation.
10. Prime facie it is relevant to__"no't.e" V' the property in dispute bearinigiiinew No.3_.3/:'n3'v,i._ £r:1a}:AicaVij'Vi Chow}: was acquired by the "
notification dated 15.12.ilS:)y"6~5_ and under".
Section 16(1) of the.Mysoyre.u:City_yy' I1nprov_em_e§nt Trust Board Act and the notification dated 09.11.1971 has been produced at"hnnexure~ufi1". So also, they the copy of the Order w.p. No.21155/2005 filed " the notification acquiring of the petitioner and the sai'd_VVwVr.i't 'petition came to be dismissed. by theibrder, it is submitted by both the writ appeal is pending before a diyisiion 'bench of this Court. The Corporation has up copy of the Order at Annexure-"R2".. jfxirther more, the copy of the gazette dated .'.M'_16;!d5'§Aéoo7 issued under Section 16(2) of the Land
-«fiiceguisition Act vide notification No.LAC 1/72--~-73
0. dated 03.05.2007 has been produced at Annexure---"R3' and it reveals that the possession of the properties gi...
(Q 8 WP 32053/09 in Makkaji Chowk including the petition premises has been taken over by the Mysore Urban Development Authority and the petition premises i.e;; told No.1629 and new No.33/3 has been mentioned at Si, No.36 and the possession was taken on 2l;O§.2007.i
11. So, as could be seen '£rom7 the _riyal contentions, though the petitioner was the owner ofu the property in dispute} ithere* is Racquisitioni proceedings by they Mysorey lflrban l"Deyelopment Authority and the possession is seid.to have been taken over V4by._ the "'sys§r§t_ flrban Development Authority. Ing such ,circumstances, when there are rival claims based on material documents, an enquiry in this regard will have to be held. Therefore, the x"perusal or the records reveal that the Order passed .Wbye thek trial: Court for an enquiry under the provisions or Order 21 Rule 97, 93 and 100 CPC is [just and proper. I do not find any merit in this :petition; In the result the petition is dismissed .§accordingly.
55'/'5 Iud§§ Ksm*