Karnataka High Court

Srikarana S/O Chandrashekar vs The Administrative Officer on 7 February, 2022

Bench: B.M.Shyam Prasad

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          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

     DATED THIS THE 7th DAY OF FEBRUARY 2022

                       BEFORE

    THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD

   Writ Petition Nos.109555-109562/2015 (GM-R/C)

Between

1. Srikarana, 45 years, S/o Chandrashekar,
   Stall No.8, Sri Doddabasaveshwara
    Swamy Temple Complex, Main Road,
   Kurugodu-583116, Ballari District.

2. Chandrashekar, 39 years,
   S/o Maligi Kotrappa,
   Stall No.9, Sri Doddabasaveshwara
   Swamy Temple Complex, Main Road,
   Kurugodu-583116, Ballari District.

3. N.M.Basavaraj, 47 years,
   S/o N.M.Channabasaiah,
   Stall No.5, Sri Doddabasaveshwara
   Swamy Temple Complex, Main Road,
   Kurugodu-583116, Ballari District.

4. H.Hemadri, 56 years, S/o Ekambarappa,
   Stall No.4, Sri Doddabasaveshwara
   Swamy Temple Complex, Main Road,
   Kurugodu-583116, Ballari District.

5. N.M.Suresh, 30 years, S/o Nagi Reddy,
   Stall No.2, Sri Doddabasaveshwara
   Swamy Temple Complex, Main Road,
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   Kurugodu-583116, Ballari District.
6. H.Vagesh, 53 years, S/o Ekambarappa,
   Stall No.3, Sri Doddabasaveshwara
   Swamy Temple Complex, Main Road,
   Kurugodu-583116, Ballari District.

7. Bellary Ambarcharaka Kushala Kaigarike
    Sahakara Sanga Niyamith, represented by its
   President - J.Seetharamachar,
   76 years, S/o. late J.Raghavachar,
   Stall No.1, Sri Doddabasaveshwara
    Swamy Temple Complex, Main Road,
   Kurugodu-583116, Ballari District.

8. Nandini, 42 years,
    W/o Komaraswamy,
    Stall No.7, Sri Doddabasaveshwara
    Swamy Temple Complex, Main Road,
    Kurugodu-583116, Ballari District.
...Petitioners

(By Sri. Harsh Desai, Advocate)

And

1. The Administrative Officer,
   Sri. Doddabasaveswara Swamy Temple,
   Kurugodu-583116, Ballari District.

2. The Assistant Commissioner,
   Hindu Religious & Charitable Endowments,
   Taluk Office Compound, Ballari-583101.
                                       ...Respondents

(By Smt. Suma Yalgur, Advocate for Sri. Y.Lakshmikant
          Reddy, Advocate for R1
    Sri. Shivaprabhu Hiremath, AGA for R2)
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        These Writ Petitions are filed under Articles 226 &
227 of the Constitution of India praying to quash the order
bearing No.LND:CR:22/2013-14 dated 06.08.2014 passed
by respondent No.2 as per Annexure-E and judgment
dated 10.07.2015 passed by the Court of the II Additional
District Judge at Ballari in MA Nos.9 to 16 of 2014 as per
Annexure-H.

       These Writ Petitions coming on for final disposal,
this day, the Court made the following:

                            ORDER

The petitioners, who are in possession of certain

shops within the precincts of Sri.Doddabasaveswaraswamy

Temple, Kurugodu, Ballari District, have impugned the

Competent Officer's order under Section 5 of the

Karnataka Public Premises (Eviction of Unauthorised

Occupants) Act, 1974 (for short, 'the Act') and the

confirmation thereof in the appeals filed in M.A. Nos.9-

16/2014 on the file of the II Additional District Judge,

Ballari (for short, 'the Appellate Court').

2. The Competent Officer, the second

respondent, by a common order dated 6th August 2014 has

found that each of the petitioners is an unauthorised

occupant of the respective premises and therefore, has

directed them to hand over vacant possession such

premises. The Appellate Court, while observing that the

lease of respective premises is admitted by the petitioners

and there is compliance insofar as the procedure with the

relevant provisions of the Act, has affirmed the second

respondent's order concluding that the petitioners cannot

complain of lack of opportunity.

     3.       The     relevant    facts    are      that   the    first

respondent,    the    Administrative      Officer    of    a   notified

institution, has permitted the petitioners to occupy certain

open spaces under unregistered deeds granting them

permission to put up construction and use such

constructed premises on terms. The terms stipulated

include a cap on the expenses to be incurred in such

construction and the rent free tenure for which the

petitioners are permitted to occupy. The petitioners

contend that after the initial agreed rent free tenure, each

of the petitioners have paid the agreed rent until the first

respondent, for obvious reason, refused to receive the

rents, and the first respondent asserts that the petitioners

have not paid the rents deliberately. In fact, the State has

placed on record certain details to substantiate the first

respondent's case that some of the petitioners have paid

rent until 2012 and not thereafter.

4. Sri. Harsh Desai, the learned counsel for the

petitioners submits that the Competent Officer after listing

undisputed facts such as the first respondent being a

notified institution, has proceeded to conclude that the

petitioners are unauthorised occupants without

considering each of the petitioners' specific defense. The

Competent Officer has conducted the proceedings in a

manner that demonstrates complete lack of opportunity

that is contemplated under Section 5 of the Act.

      5.       Sri.    Harsh      Desai    emphasizes        that   the

Appellate    Court      has   overlooked     these    very    material

circumstances and he also emphasizes that the notice is

not as required under Section 4 of the Act, nor the

impugned order is in the prescribed form under the

Karnataka Public Premises (Eviction of Unauthorised

Occupants) Rules, 1980. He draw this Court's attention to

the fact that while notice issued refers to certain

schedules, the Competent Officer's impugned order does

not even have a schedule and the prescribed form

mandates that schedule must be mentioned. He submits

that this also demonstrates lack of application of mind.

6. Sri. Shivaprabhu Hiremath, the learned

Additional Government Advocate, supported by Smt. Suma

Yalgur, the learned counsel for the first respondent,

submits with reference to the Competent Officer's

impugned order that the Competent Officer has elaborately

referred to the opportunity extended to the petitioners; the

petitioners cannot dispute that their counsel has appeared

and filed statement of objections. Sri. Shivaprabhu

Hiremath also canvasses that the petitioners cannot deny

that they have not paid agreed rents, and therefore, there

cannot be any doubt about the petitioners being

unauthorised occupants; as such, the impugned orders

are in accordance with law. In fact, both Sri. Shivaprabhu

Hiremath and Smt. Suma Yalgur place reliance on a copy

of the agreement of lease executed by one of the petitioners

to buttress their submissions.

7. The question for consideration is: whether this

Court can opine that the Competent Officer in concluding

that the petitioners are unauthorised occupants and liable

for eviction under Section 5 of the Act, has permitted the

petitioners to produce evidence and thereafter a reasonable

opportunity of hearing as contemplated under Section 5 of

the Act, and if the competent authority has not extended

such opportunity, has the Appellate Court erred in

overlooking the same.

8. In the present case, the petitioners were

admittedly granted leave to occupy open spaces and

construct thereon subject to a certain financial cap and

the right to occupy such constructed premises for certain

tenure without paying rents because of the expenses

incurred in putting up such construction. The petitioners

were permitted to continue beyond the initial agreed period

but on revisited terms inasmuch as that the petitioners,

who were not required to pay any rent because of the

expenses incurred by them in putting up construction,

were called upon to pay certain mutually accepted amount,

and the petitioners, admittedly, have also tendered certain

amounts accordingly for a period. The petitioners contend

that the first respondent, for reasons, did not receive the

agreed amount after a certain period. The circumstances

in which the agreement is concluded to continue the

leases, after the initial period and the terms of such

agreement have not been considered by the competent

officer with due opportunity to the petitioners. If the initial

period of lease had expired and they were permitted to

continue subject to payment of rent, the circumstances

under which such subsequent agreement has come about

and the details of such agreement had to be examined

before accepting the first respondent's case that the

petitioners were unauthorised occupants.

9. The provision of Section 5 of the Act reads as

under:

"5. Eviction of unauthorised occupants.- (1) If, after considering the cause, if any, shown by any person in pursuance of a notice under section 4 and any evidence he may produce in support of the same and after giving him a reasonable opportunity of being heard, the competent officer is satisfied that the public premises are in unauthorised occupation, the Competent Officer may on a date to be fixed for the purpose, make an order of eviction, for reasons to

be recorded therein, directing that the public premises shall be vacated by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises.

(2) If any person refuses or fails to comply with the order of eviction within forty-five days from the date of affixture of the order under sub- section (1), the competent officer or any other officer duly authorised by the competent officer in this behalf may evict that person from, and take possession of, the public premises and may, for that purpose, use such force as may be necessary."

The provision stipulates that there must be a

reasonable opportunity to lead evidence and a reasonable

opportunity of being heard before an order is made by the

Competent Officer under Section 5 of the Act for eviction. It

is obvious from the records that this opportunity is not

extended to the petitioners to place on record the

circumstances to vindicate their case that they are not

unauthorized occupants, and neither the Competent

Officer has examined these vital aspects. The proceedings

before the Competent Officer is therefore vitiated, and as

such, the Competent Officer's order cannot be sustained,

and the Appellate Court, which has opined that there is