Karnataka High Court

Sri. Vinayaka Housing Co-Operative vs The Commissioner on 6 August, 2024

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                                                     NC: 2024:KHC:31147
                                                   WP No. 64693 of 2016




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 6TH DAY OF AUGUST, 2024

                                      BEFORE

                   THE HON'BLE MR JUSTICE ASHOK S.KINAGI

                   WRIT PETITION NO.64693 OF 2016 (LB-BMP)

              BETWEEN:

              SRI. VINAYAKA HOUSING CO-OPERATIVE
              SOCIETY LIMITED,
              HAVING ITS OFFICE AT NO.2,
              11TH "C" CROSS ROAD,
              VYALIKAVAL, BENGALURU-560 003,
              REPRESENTED BY ITS SECRETARY.
                                                           ...PETITIONER
              (BY SRI. MAHANTESH T S., ADVOCATE)

              AND:

              1.   THE COMMISSIONER
                   BANGALORE MAHANAGARA PALIKE,
Digitally          N.R. SQUARE, BENGALURU-560 002.
signed by R
DEEPA         2.   THE DEPUTY COMMISSIONER (ADMIN)
Location:          AND COMPETENT OFFICER,
HIGH COURT         BANGALORE MAHANAGARA PALIKE,
OF                 N.R. SQUARE, BENGALURU-560 002.
KARNATAKA                                               ...RESPONDENTS
              (BY SRI. H DEVENDRAPPA, ADVOCATE)

                   THIS WRIT PETITION IS FILED UNDER ARTICLES 226
              AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO.CALL
              FOR RECORDS IN MA.33/2011 AND SET ASIDE THE ORDER
              DTD.17.8.2016 PASSED BY THE XIV ADDL. CITY CIVIL JUDGE,
              BANGALORE AT ANNEXURE-L. CONSEQUENTLY, QUASH THE
              IMPUGNED NOTICE DTD.20.3.2007 UNDER SECTION 4(1) AND
              IMPUGNED ORDER DTD.19.7.2010 UNDER SECTION 5(1) OF
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                                               NC: 2024:KHC:31147
                                         WP No. 64693 of 2016




THE  KARNATAKA   PUBLIC   PREMISES    (EVICTION   OF
UNAUTHORIZED OCCUPANTS) ACT, 1974 VIDE ANNEX-C & E.

    THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:


CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI


                       ORAL ORDER

This writ petition is filed by the petitioner challenging

the order dated 17.08.2016, passed in M.A.No.33/2011 by

the XIV Additional City Civil Judge, Bengaluru (CCH-28),

vide Annexure-L and also to quash the impugned notice

dated 20.03.2007, issued under Section 4(1) of the

Karnataka Public Premises (Eviction of Unauthorized

Occupants) Act, 1974 (for short 'the Act of 1974'), vide

Annexure-C and order dated 19.07.2010, passed under

Section 5(1) of the Act of 1974, vide Annexure-E.

2. Brief facts leading rise to filing of this petition are

as under:

The respondents - Corporation executed a lease

agreement on 27.08.1976, in respect of open space

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bearing No.8, situated at 11th 'A' Cross, Vyalikaval,

Bengaluru measuring East-West 58 feet, North-South 58

feet in favour of the petitioner for a period of 30 years.

Pursuant to the lease agreement dated 27.08.1976, the

petitioner constructed ground floor and 1st floor on the

open space and using the same for its office for the benefit

of its members. The Government permitted the petitioner

- Society to let out the building to an extent of 3770

sq.feet in favour of Karnataka Food & Civil Supplies

Department for rent. It is contended that 30% of the rent

collected shall be paid to the respondents - Corporation.

After the expiry of the lease period, the respondents -

Corporation got issued a notice under Section 4(1) of the

Act of 1974. The petitioner submitted a reply to the said

notice. The petitioner submitted a representation for

renewal of lease. The respondents - Corporation did not

consider the representation for renewal of lease and hence

the petitioner filed a suit for specific performance of

contract in O.S.No.3300/2008 seeking a direction to renew

the lease. During the pendency of the said suit, the

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respondents - Corporation passed an order under Section

5(1) of the Act of 1974. It is stated that the suit filed by

the petitioner came to be dismissed vide judgment and

decree dated 06.04.2011. The petitioner aggrieved by the

order of eviction passed under Section 5(1) of the Act of

1974, preferred an appeal in M.A.No.33/2011 on the file of

XIV Additional City Civil Judge, Bengaluru (CCH-28). The

First Appellate Court vide judgment dated 17.08.2016,

dismissed the appeal. The petitioner aggrieved by the

dismissal of the appeal and order of eviction, filed this writ

petition.

3. Heard learned counsel for petitioner and learned

counsel for respondents.

4. Learned counsel for the petitioner submits that no

proper enquiry was conducted by the estate officer before

passing order under Section 5(1) of the Act of 1974. He

also submits that the petitioner has submitted a

representation for renewal of lease and the respondents -

Corporation has not passed any order on the

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representation submitted by the petitioner for renewal of

lease. He further submits that the petitioner has invested

a huge amount for construction of a building with ground

and first floors and if the petitioner is directed to vacate

the property, the petitioner will incur heavy loss. He

submits that the estate officer without considering the said

aspect has passed an order of eviction and the said

eviction order is contrary to Section 5(1) of the Act of

1974. He further submits that the First Appellate Court

without considering the contention raised by the petitioner

before it, dismissed the appeal. Hence, on these grounds,

prays to allow the writ petition.

5. Per contra, learned counsel for the respondents

submits that the lease agreement was executed in the

year 1976 in favour of the petitioner in respect of property

in question for a period of 30 years. The said period was

expired in the year 2006. After the expiry of the lease

period, the petitioner unauthorisedly continued in

possession of the property in question. The petitioner falls

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within the definition of unauthorized occupant as per

Section 2(g) of the Act of 1974. He submits that the

petitioner filed a suit in O.S.No.3300/2008 for specific

performance of contract for renewal of the lease. The said

suit came to be dismissed vide judgment dated

06.04.2011. He further submits that though the petitioner

has submitted a representation for renewal of lease, the

said representation was rejected. Further, the estate

officer has provided sufficient opportunity to the petitioner

to put forth his case. The estate officer after considering

the reply submitted by the petitioner has rightly passed an

order of eviction and the First Appellate Court has rightly

dismissed the appeal filed by the petitioner. The orders

passed by the estate officer and the First Appellate Court

are just and proper and does not call for any interference.

He also submits that the scope of interference under

Article 227 of the Constitution of India is very limited. He

submits that the writ Court cannot re-appreciate the

evidence. Hence, on these grounds, prays to dismiss the

writ petition.

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6. Perused the records and considered the

submissions made by learned counsel for the parties.

7. It is not in dispute that the open space was

owned by the respondents - Corporation. The respondents

- Corporation had let out the open space to the petitioner

under a lease agreement dated 27.08.1976, for a period of

30 years. Pursuant to the execution of lease agreement,

the petitioner constructed a building over the open space

and paying rent regularly to the respondents -

Corporation. Thereafter, the petitioner sublet a portion of

building to the extent of 3770 sq.feet to the Karnataka

Food & Civil Supplies Department and it was agreed that

30% of the rent collected shall be paid to the respondents

- Corporation. The lease period was expired on

26.08.2006. After the expiry of the lease period, the

respondents initiated eviction proceedings under the

provisions of the Act of 1974. The estate officer issued a

notice under Section 4(1) of the Act of 1974. The

petitioner submitted a reply to the said notice. Meanwhile,

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before passing an order of eviction by the estate officer,

the petitioner approached the Civil Court and filed a suit in

O.S.No.3300/2008 for the relief of specific performance of

contract, i.e., for renewal of lease agreement. The said

suit was contested by the respondents - Corporation. The

said suit was dismissed by the trial Court vide judgment

and decree dated 06.04.2011. The trial Court while

dismissing the suit, has recorded a finding that after the

expiry of period of lease fixed under the agreement, the

entire structure, buildings, etc., existing in the suit

property shall vest with the lessor, namely, defendants

(respondents herein). During the pendency of the said

suit, the estate officer passed an order of eviction under

Section 5(1) of the Act of 1974. As per Section 2(g) of the

Act of 1974, defines the words 'unauthorised occupation'

which reads as under:

"'Unauthorised occupation' in relation to any public premises, means the occupation by any person of the public premises, without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer)

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under which he was allowed to occupy the premises has expired or has been determined by any reason whatsoever."

8. Admittedly, in the instant case, the lease had

expired on 26.08.2006. The respondents - Corporation

has not renewed the lease. Hence, the petitioner falls

within the definition of unauthorized occupant and

accordingly, the estate officer issued a show-cause notice

under Section 4(1) of the Act of 1974 on 20.03.2007, and

further the estate officer has recorded his finding and

directed the petitioner to vacate the public premises. The

order of eviction was challenged in M.A.No.33/2011. The

First Appellate Court on re-appreciation of material on

record, dismissed the appeal. The petitioner has already

lost the suit in O.S.No.3300/2008 and the learned counsel