Karnataka High Court
Royal Education Society vs The Chief Secretary on 21 January, 2020
Author: P.S.Dinesh Kumar
Bench: P.S. Dinesh Kumar
1
W.P. No.44462/2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR
WRIT PETITION No.44462 OF 2012 (GM-PP)
BETWEEN :
ROYAL EDUCATION SOCIETY
®, OLD EXHIBITION BUILDING
MYSORE CITY-570 024
REPRESENTED BY ITS SECRETARY
SRI. RIYAZ AHMED B
SECRETARY
[AMENDED VIDE COURT ORDER
DT.2.11.18] ... PETITIONER
(BY SHRI. PADMANABHA MAHALE SENIOR ADVOCATE FOR
SHRI. M. SHIVAPRAKASH, ADVOCATE)
AND :
1. THE CHIEF SECRETARY
STATE OF KARNATAKA
VIDHANA SOUDHA
BANGALORE-560 001
2. THE PRINCIPAL
GOVERNMENT MEDICAL COLLEGE
MYSORE CITY
MYSORE-570 024
3. THE COMPETENT OFFICER
UNDER KPP ACT AND ADDITIONAL
DEPUTY COMMISSIONER
2
W.P. No.44462/2012
MYSORE CITY
MYSORE-570 024 ... RESPONDENTS
(BY SHRI. SRIDHAR N. HEGDE, HCGP FOR R1 & R3;
SHRI. SUNIL S. RAO FOR
SHRI. T. SESHAGIRI RAO, ADVOCATES FOR R2)
....
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
ENTIRE RECORDS IN P.P.E. NO.12/2002-03 DATED 9.2.2011
PASSED BY THE 2ND RESPONDENT AND IN M.A. NO.17/2011 DATED
14.10.2012 ON THE FILE OF IV ADDITIONAL DISTRICT JUDGE,
MYSORE; QUASH THE PROCEEDINGS IN PPE NO.12/2002-03
DATED 9.2.2011 VIDE ANNEXURE-K PASSED BY THE 2ND
RESPONDENT AND IN M.A. NO.17/2011 DATED 14.10.2012 ON THE
FILE OF IV ADDITIONAL DISTRICT JUDGE, MYSORE AT ANNEXURE-
L AND CONSEQUENTLY TO REJECT/DISMISS THE PROCEEDINGS
INITIATED UNDER KARNATAKA PUBLIC PREMISES ACT AGAINST
THE PETITIONER SOCIETY AND ETC.,
THIS WRIT PETITION, HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 09.01.2020, COMING ON FOR PRONOUNCEMENT
OF ORDERS, THIS DAY, THIS COURT PRONOUNCED THE
FOLLOWING:-
ORDER
Royal Education Society registered under the Societies Registration Act has presented this writ petition challenging order dated 14th September 2012 passed by the IV Additional District Judge in M.A. No.17/2011 dismissing petitioner's appeal filed under Section 10 of Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974 ('KPP Act' for short) thereby 3 W.P. No.44462/2012 confirming order dated 9th February 2011 passed by the Additional Deputy Commissioner and Competent Authority under the KPP Act directing petitioner to vacate and handover the property in petitioner's occupation in the old exhibition O, K and J Blocks in Mysore ('subject property' for short).
2. Shri. Padmanabha Mahale, learned Senior Advocate for petitioner submitted that petitioner was given the subject property on monthly lease and petitioner has been in occupation of the same since 22nd May 1964. Petitioner is running a School in the subject property. Principal, Mysore Medical College initiated proceedings under the KPP Act in PPE 5/1986-87 against petitioner on the ground that pursuant to Government order dated 30th October 1973, the old Exhibition land together with all constructions thereon stood transferred to the Health and Family Welfare Department and petitioner was in unauthorized occupation of the same. 4 W.P. No.44462/2012 By order dated 13th March 1997, the Competent Authority dismissed college's claim but directed petitioner to pay arrears of rent of Rs.1,22,763.15 ps. This order was challenged by petitioner in M.A. No.67/1999. By his order dated 22nd August 2002, the Principal District Judge, Mysore allowed the appeal in part and granted ten month's time to petitioner to pay the arrears of rent.
3. Shri.Mahale further submitted that Government Pleader for Mysore District, under instruction from the Principal of Medical College, issued a notice on 4th November 2002 stating inter alia that the Government of Karnataka had cancelled the lease by order dated 9th May 1999 and accordingly called upon the petitioner to handover vacant possession of the subject property and to pay arrears of rent from 14th March 1997. Petitioner got the said notice suitably replied denying cancellation of lease. Thereafter, a notice under Section 4(1) of the 5 W.P. No.44462/2012 KPP Act was issued on 25th April 2003 by the Office of the Deputy Commissioner and Competent Authority under the Act to show cause as to why an order under the KPP Act must not be passed directing petitioner's eviction. Petitioner contested the notice and proceedings were conducted in PPE 12/2002-03. By his order dated 9th February 2011, the Competent Authority directed the petitioner to vacate and handover the subject property to the college. Petitioner challenged the said order in appeal before IV Additional District Judge and the same has been dismissed.
4. In support of this writ petition, Shri. Mahale urged following grounds:
• that petitioner is not an unauthorized occupant because the lease is in perpetuity. Therefore proceedings could not have been initiated under KPP act;6
W.P. No.44462/2012 • that college does not have an Estate Officer and in the absence of an Estate Officer, notice ought to have been issued by the Deputy Commissioner whereas District Government Pleader has issued the notice;
• that in the old exhibition area, a portion of land has been allotted to Vidhya Vardhaka Sangha. The said Society has not only constructed buildings but also running a petrol pump. Government have not initiated any action against the said Society. Therefore, the proceedings initiated against petitioner suffer from the vice of discrimination and violate Article 14 of the Constitution; • that petitioner is in occupation of subject premises as a lessee. Therefore, eviction proceedings could have been initiated only under the provisions of Transfer of Property Act;
• that in earlier proceedings initiated by a Medical College, both the Competent Authority as also the 7 W.P. No.44462/2012 Appellate Authority have concurrently held that petitioner is not an unauthorized occupant. Therefore, initiation of proceedings for the second time are hit by principles of res judicata under Section 11 of the Code of Civil Procedure; • that admittedly, property belongs to Health and Family Welfare Department. Hence, Medical College could not have initiated the proceedings; and • that about 3000 poor students are studying in the School run by the petitioner - Society and the eviction order adversely affects them. With above grounds, Shri.Mahale prayed that the impugned orders be quashed.
5. Shri. Sridhar N. Hegde, learned AGA and Shri. Sunil S. Rao for Medical College argued opposing the writ petition.
8W.P. No.44462/2012
6. Learned AGA submitted that both the Competent Authority and the Appellate Authority have concurrently held against the petitioner by recording cogent reasons. Medical College is fully owned by the Government and subject property has been transferred to the college by the Government. Therefore, the proceedings against petitioner are tenable.
7. I have carefully considered rival contentions and perused the records.
8. Undisputed facts of the case are, Medical College was unsuccessful in the earlier proceedings initiated under the Act in the year 1997. The College did not challenge the said order. However, petitioner challenged the same so far as the direction issued by the Competent Authority to pay arrears of rent was concerned.
9. The principal ground urged by Shri.Mahale is, petitioner is not an unauthorized occupant, but a tenant 9 W.P. No.44462/2012 in pursuance of a lease deed and it did not have knowledge about cancellation of lease. Shri.Rao is right in his submission that the District Government Pleader has categorically mentioned about the cancellation of lease in his notice and the same has been adverted in petitioner's reply. Though 17 years have elapsed from the date of reply, petitioner has not chosen to challenge the cancellation of lease.
10. Learned District Judge has recorded in paragraph No.24 of her order that R.W.1 has stated in her evidence that petitioner had not received copy of Ex.P61 and had addressed a letter to the Government seeking a copy of Ex.P6. It is further recorded that R.W.1 has admitted that petitioner had paid rents on five occasions between 1997 and 2002 to the Medical College. Thus it is clear that petitioner's witness R.W.1 has admitted that it had applied for a copy of the Government order canceling the lease. But the fact 1 Government Order dated 9th August 1999 cancelling petitioner's lease 10 W.P. No.44462/2012 remains that petitioner has not chosen to challenge the same and thus acquiesced the cancellation of lease. Therefore, petitioner's contention that Medical College could not have initiated proceedings under the KPP Act is not tenable.
11. Mr.Mahale's contention with regard to the notice issued by the District Government Pleader, is noted only to be rejected because the proceedings under the KPP Act have begun pursuant to notice issued by the competent authority on 25th April 2003 (Annexure-J). It is true that the District Government Pleader had also issued a notice calling upon petitioner to vacate the premises and to pay arrears of rent on the ground that Government had cancelled the lease. Petitioner sent a reply to that notice and the matter ended there. The proceedings under the KPP Act have stemmed out of the notice issued by the competent authority and not on the legal notice issued by the District Government Pleader. 11 W.P. No.44462/2012
12. The contention that the Medical College does not have an Estate Officer, is also equally fallacious because it was urged by Shri. Mahale himself that in the absence of Estate Officer, proceedings could be initiated by the Deputy Commissioner and in the instant case, proceedings have been initiated by the Deputy Commissioner.
13. The next contention is with regard to violation of Article 14. The argument is, Government or the Medical College have not initiated eviction proceedings against Vidya Vardhaka Sangha. Though it was urged by Shri.Mahale that the said Society has constructed commercial buildings and running a petrol pump, to a pointed question by the Court, he admitted in his usual fairness that except his oral submission based on petitioner's instruction, there is no material to substantiate this contention. Hence, this ground is also untenable.
12W.P. No.44462/2012
14. The next contention urged on behalf of the petitioner is, possession could have been recovered only by filing a suit. It is relevant to note that petitioner's witness R.W.1, has admitted that petitioner has paid rents to Medical College. She has also stated that petitioner had sought for a copy of the lease cancellation order. Shri.Mahale, feebly urged that the rent paid by the petitioner were returned by the Medical College. But the fact remains that petitioner has tacitly accepted the cancellation of lease and ownership of Medical College over the subject property as is clear by its conduct of paying rents to the Medical College.
15. Petitioner was given the subject land in the year 1964 and the lease has been cancelled in the year 1999. Government have transferred the old exhibition land and buildings thereon to the Health and Family Welfare Department in 1999. Reckoned from the date of lease, petitioner has remained in occupation of the subject land 13 W.P. No.44462/2012 for 56 years and from the date of cancellation of lease for 21 years on a monthly rent of Rs.415/-.
16. Admittedly, cancellation of lease has not been challenged as on date. Petitioner has fully participated in the proceedings before the Competent Authority as also the Appellate Authority. Shri. Rao, is right in contending that findings of fact recorded by the Competent Authority and the appellate authority cannot be disturbed in writ proceedings unless there are specific pleadings to that effect and petitioner proves at least prima facie that facts recorded are factually incorrect and contrary to material on record. Further, as recorded hereinabove, petitioner, by its conduct, has acquiesced to cancellation of lease and ownership of Medical College over the subject land.
17. The next contention is, who should have initiated the proceedings under the KPP Act whether the Government or the Medical College?. It is the specific case of the respondents that Mysore Medical College is 14 W.P. No.44462/2012 wholly owned by the State Government. This aspect is not disputed by the petitioner. Therefore, subject premises falls within the definition of 'Public Premises' defined under Section 2(e) of the Act and therefore State owned Medical College is competent to initiate proceedings under the KPP Act.
18. The last contention, is that about 3000 students are studying in the School run by the petitioner. It is relevant that the subject property has been transferred to a State owned Medical College imparting Medical Education. Hence this ground is also untenable.
19. In the result, in view of above discussion, this petition must fail and it is accordingly dismissed.
No costs.
Sd/-
JUDGE SPS