Sri R Shivakumar vs The Commissioner
2022 Latest Caselaw 7807 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 31ST DAY OF MAY 2022

                          PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                            AND

           THE HON'BLE MS.JUSTICE J.M. KHAZI

             W.A. NO.1267 OF 2021 (GM-R/C)
                           IN
             W.P.No.11355 OF 2021 (GM-R/C)

BETWEEN:

SRI. R. SHIVAKUMAR
S/O LATE N. RAMAMURTHY
AGED ABOUT 66 YEARS
R/AT NO.112, K. KAMARAJ ROAD
BENGALURU 560 042.
                                              ... APPELLANT
(BY MR. CHANDRANATH ARIGA K, ADV.,)

AND:

1.      THE COMMISSIONER
        RELIGIOUS AND ENDOWMENT OFFICE
        2ND AND 3RD FLOOR
        MALAI MAHADESHWARA BHAVA
        ALUR VENKATARAO ROAD
        CHAMARAJAPET, BENGALURU 560 018.

2.      THE EXECUTIVE OFFICER
        SRI. SHARAKSHARA SIVA
        SUBRAMANYA SWAMY TEMPLE
        K. KAMARAJ ROAD, BENGALURU 560 042.

3.      STATE OF KARNATAKA
        REP. BY ITS SECRETARY
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      DEPARTMENT OF RELIGIOUS AND CHARITABLE
      INSTITUTIONS, VIKASA SOUDHA
      DR. AMBEDKAR VEEDHI
      BENGALURU 560 001.

                                               ... RESPONDENTS
(BY MRS. VANI H, AGA)
                               ---

      THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER OF THE
LEARNED SINGLE JUDGE DATED 2.8.2021 PASSED IN W.P. NO.
11355/2021 (GM-R/C) AND. ALLOW THIS WRIT APPEAL AND
CONSEQUENTLY ALLOW THE WRIT PETITION BY ISSUE OF A WRIT
OF MANDAMUS OR ANY OTHER APPROPRIATE WRIT, ORDER OR
DIRECTION AND DECLARE THE IMPUGNED ORDER DATED
03.05.2021 PASSED BY THE 2ND RESPONDENT - EXECUTIVE
OFFICER ( ANNEXURE - C) ULTRA VIRES AND ILLEGAL AND SET
ASIDE THE SAME, AND     PASS SUCH OTHER AND FURTHER
ORDERS AS THIS HON BLE COURT DEEMS FIT TO PASS IN THE
CIRCUMSTANCES OF THE CASE.

     THIS W.A. COMING ON FOR PRELIMINARY HEARING, THIS
DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

                          JUDGMENT

In this intra court appeal, challenge has been made to

the order dated 02.08.2021 passed by learned Single Judge

by which writ petition preferred by the appellant has been

dismissed.

2. Facts leading to filing of this appeal briefly stated

are that the premises belonging to Muzrai temple was let out

to the appellant in the year 2010 for a period of five years.

However even after expiry of five year lease period. The

appellant has not vacated the premises and continues to be

in possession of the same. The respondents have initiated

proceedings to evict the appellant under the provisions of

Karnataka Public premises (Eviction of Unauthorised

Occupants) Act, 1974 (hereinafter referred to as 'the Act' for

short). The Chief Executive Officer of the Muzrai Temple

has sent a notice dated 12.04.2021 by which the appellant

has been informed that he is liable to pay damages up to

March 2021 to the extent of Rs.4,02,888/-. It was further

informed to the appellant that in case, he fails to pay the

amount, action in accordance with law would be taken.

3. The appellant challenged the aforesaid notice dated

12.04.2021 in a writ petition before the learned Single Judge.

The learned Single Judge by an order dated 02.08.2021 has

dismissed the writ petition preferred by the appellant. In the

aforesaid factual background, this appeal has been filed.

4. Learned counsel for the appellant submitted that the

impugned notice is per se without jurisdiction as the

competent authority to issue notice for assessment and

recovery of damages/rent, if any, under the provisions of the

Act is the Assistant Commissioner and the amount of

damages have been determined unilaterally. On the other

hand, learned Additional Government Advocate has invited

the attention of this court to Rule 31(18) of Karnataka Public

premises (Eviction of Unauthorised Occupants) Rules, 2002

and has submitted that if a tenant remains in unauthorized

occupation, he is liable to pay damages as prescribed under

Rule 31(18) of the Act. It is further submitted that after

issuance of notice to appellant, under Rule 30, action for

assessment and recovery of damages by the Assistant

Commissioner in accordance with law.

5. We have considered the submissions made on both

sides and have perused the record. Rule 31(18) of the Rules

provides that if the lessee remains in unauthorized

occupation of the premises shall be liable to pay damages at

the rates prescribed therein. Rule 32 provides for the

procedure for assessment of the damages by the Assistant

Commissioner for unauthorized occupation of the property

and for recovery of the same from the defaulting lessee.

Since, in pursuance of the impugned notice dated

12.04.2021, proceedings under Rule 32 of the Rules is yet to

be initiated, no effect shall be given to the impugned notice

till such time, the aforesaid proceedings under Rule 32 is

initiated by issuing of notice by the Competent Authority.

Therefore, no interference at this stage is called for. The

respondents are granted the liberty to initiate the

proceedings for assessment as well as recovery of damages

in accordance with Rules. To the aforesaid extent, the

judgment passed by learned Single Judge is modified.

Accordingly, the appeal is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

SS