Karnataka High Court
Panemangalore Geetha Kamath vs State Of Karnataka on 28 February, 2024
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
Reserved on : 20.02.2024
Pronounced on : 28.02.2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.4750 OF 2024 (GM - TEN)
BETWEEN:
1. PANEMANGALORE GEETHA KAMATH
W/O MADHAV KAMATH,
AGED ABOUT 74 YEARS,
R/O 4-2-149/3-1 SRI RAMDEVKRIPA,
M.G.ROAD,1ST CROSS,
NEAR ANANDVIHAR APARTMENT,
LALBAGH MANGALURU KODIYALBAIL,
KARNATAKA - 575 003.
2. B.RADHIKA SHENOY
W/O RAMESH SHENOY,
AGED ABOUT 55 YEARS,
R/O 7-1-135/1, NAVADURGA,
MATADAKANI, 1ST CROSS, BOLOOR,
MANGALURU, ASHOKNAGAR (MR)
DAKSHINA KANNADA,
KARNATAKA - 575 006.
3. SHASHIKALA
W/O BALAKRISHNA SHETTY,
AGED ABOUT 66 YEARS,
R/O NO.6-31-5/1, 6TH BLOCK,
2
CHOKKABETTU, SURATHKAL,
VTC MANGALURU, DAKSHINA KANNADA
KARNATAKA - 575 014.
4. ARAVIND G. BIJOOR
S/O GOVINDA,
AGED ABOUT 65 YEARS
G-2, D N. 2, 16, 1382 2
SAI KRISHNA SOMAYAJI ORCHID,
MANGALURU, DAKSHINA KANNADA,
KARNATAKA - 575 004.
5. ARUMUGHAN K.,
S/O KOSU,
AGED ABOUT 53 YEARS,
R/O JASMINE APARTMENT
2ND FLOOR,
D NO. 202, LANDLINKS TOWNSHIP GIRINAGAR,
2ND CROSS, LANDLINKS TONWSHIP KONCHADY,
MANGALURU, DAKSHINA KANNADA,
KARNATAKA - 575 008.
... PETITIONERS
(BY SRI K.N.PHANINDRA, SR.ADVOCATE A/W
SRI SANTOSHRAJ C.DESHAMUKH, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY SECRETARY,
URBAN DEVELOPMENT DEPARTMENT,
VIKAS SOUDHA, 4TH FLOOR,
DR.AMBEDKAR VEEDHI,
BENGALURU - 560 001.
2. MANGALORE MAHANAGARA PALIKE
REPRESENTED BY ITS COMMISSIONER,
3
LALBAGH, M.G.ROAD,
MANGALURU - 575 003.
3. MANGALORE MAHANAGARA PALIKE
REPRESENTED BY ITS
DEPUTY COMMISSIONER (REVENUE)
LALBAGH, M.G.ROAD,
MANGALURU - 575 003.
... RESPONDENTS
(BY SRI SPOORTHY HEGDE, HCGP FOR R-1;
SRI K.N.NITISH, ADVOCATE FOR R-2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO i) DIRECTION
QUASH THE CIRCULAR DATED 19/07/2019 BEARING NO.
NAE301GEL2017 ISSUED BY THE R1 VIDE ANNEXURE-A;
ii) QUASH THE NOTICE DATED 21/3/2023 BEARING
MNP/KANDAVI/CR.79/2022-23/A9/PLO 158055 ISSUED BY THE R3
VIDE ANNEXURE -B; iii) QUASH THE INTIMATION LETTER DATED
3/1/2024 BEARING NO. MNP/KANDAVI/CR.79/2022-23/A9/PLO
158055 ISSUED BY THE R3 VIDE ANNEUXRE-C; iv) QUASH THE
PUBLIC / E-AUCTION NOTIFICATION DATED 01/02/2024 BEARING
NO. KANDAVI / C.R 79/2022-23/A9/PLO 158055 ISSUED BY THE R2
VIDE ANNEXURE-E; v) DIRECTION DIRECTING THE R2 AND R3 TO
CONSIDER THE REPRESENTATION DATED 05/04/2023 VIDE
ANNEXURE-L AND REPRESENTATION DATED 08/01/2024 VIDE
ANNEXURE-M SUBMITTED BY THE PETITIONERS AND TO RENEW
THE LEASE DEED IN FAVOUR OF THE PETITIONERS IN THE SHOP
PREMISES LOCATED IN LALBAGH COMMERCIAL COMPLEX,
MANGALORE.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 20.02.2024, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
4
ORDER
The petitioners are before this Court calling in question
Circular dated 19-07-2019 issued by the 1st respondent/State and
have also sought quashing of notice dated 21-03-2023 issued by
the 3rd respondent/Mangalore Mahanagara Palike ('the Palike' for
short) directing eviction of the petitioners from shops that come
within the precincts of the Palike.
2. Sans details, facts in brief, germane are as follows:
The Palike issues a notice inviting tender cum auction on
29-01-2001 calling for applications from general public about
intention of the Palike to auction shops situated in Lalbagh
Commercial Complex in Mangalore City coming within the precincts
of the Palike. Pursuant to the said tender notification, the
petitioners in the subject petition along with others emerge
successful and are allotted certain shops in the said complex on
13-02-2001. Agreements are signed between the two letting out
shops on licences for a period of ten years. When the period was to
come to an end, the Palike extended the tenure by separate orders
from time to time. The first of such extension on enhanced rent
under the renewed agreement was on 05-02-2014. It is the case of
the petitioners that rent is received by the Palike till today and,
therefore, they are entitled to certain protection. A notice comes to
be issued to the petitioners on 21-03-2023 directing them to move
out of their shops as their tenure has come to an end. Pursuant to
the said notice, intimation letters are also issued by the 3rd
respondent on 03-01-2024 seeking eviction of the petitioners from
the shops. On 22-01-2024 the shops that were handed over to the
petitioners on licences are now reserved for Scheduled Castes or
Scheduled Tribes by way of draw of lots. It is then a public auction
notification comes to be issued on 01-02-2024. The petitioners rush
to this Court in the subject petition on issuance of the public auction
notification, calling in question the notice so issued on 21-03-2023,
intimation letter dated 03-01-2024 and public auction notification
dated 01-02-2024.
3. Heard Sri K.N.Phanindra, learned senior counsel appearing
for the petitioners, Sri Spoorthy Hegde, learned High Court
Government Pleader for respondent No.1 and Sri K.N Nitish,
learned counsel appearing for respondent No.2.
4. The learned senior counsel Sri K.N. Phanindra representing
the petitioners would contend that the petitioners cannot be thrown
out overnight. The procedure stipulated under the Public Premises
(Eviction of Unauthorised Occupants) Act, 1971 ('the Act' for short)
will have to be followed even in the case of licensees as is followed
in the case of lessees/tenants or unauthorized occupants. He would
submit that even a trespasser is entitled to protection either under
the Act or under the Transfer of Property Act. Therefore, he would
submit that unless the procedure stipulated under the Act is
followed, the petitioners cannot be directed to be evicted by the
impugned action.
5. Per-contra, the learned counsel representing the Palike
Sri. K.N. Nitish would vehemently refute the submissions to contend
that the petitioners are not either lessees or tenants, they are
licensees having been issued to run the shops pursuant to public
auction. The petitioners having taken the benefit under the public
auction notification in 2001 have been squatting over the property
for the last 23 years and not letting the public auction to take place.
The learned counsel would submit that the petitioners will have to
give way in terms of a circular issued by Government qua the shop
coming within the precincts of either the Municipality or the
Corporation dated 19-07-2019. All the properties coming under the
Palike will have to be allotted only by way of public auction. He
would submit that the Act or the Transfer of Property Act is
inapplicable to the facts of the case. By elaborating the submissions
qua the circular, the learned counsel would submit that right of first
refusal is given to the licensees who are holding the shops today.
Petitioner Nos. 4 and 5 have exercised their right of refusal. It is
only petitioners 1 to 3 are agitating.
6. The learned senior counsel for the petitioners would join
issue by contending that the circular gives right of first refusal on
the shops that are now in possession of the petitioners which are
reserved for Scheduled Castes or Scheduled Tribes and in that view
of the matter, right of first refusal will not make any meaning. He
would reiterate that the petitioners cannot be evicted without
following due process of law and would seek to place reliance on
certain judgments rendered by the Apex Court and this Court in the
cases of (i) MEGHMALA v. G.NARASIMHA REDDY1 (ii) M/s
PATIL EXHIBITORS (P) LTD. v. CORPORATION OF THE CITY
OF BANGALORE2 and the latest judgment of the coordinate Bench
in the case of K.T. SURESH v. STATE OF KARNATAKA3.
7. I have given my anxious consideration to the submissions
made by the learned senior counsel and the respective learned
counsel appearing for the parties and have perused the material on
record.
8. The afore-narrated facts are not in dispute. The shops that
come within the precincts of the Palike were allotted to the
petitioners in the year 2001 pursuant tender cum auction
notification dated 29-01-2001 and auction held on 13-02-2001.
Agreements were entered into between the petitioners and the
(2010) 8 SCC 383
ILR 1985 KAR 3700
W.P.No.12105 of 2022 decided on 24-01-2024.
respondents/Palike. The relevant clauses in one of the agreements
read as under:
"This indenture is made on the Nineteenth day of April
2001 between the Corporation of the city of Mangalore
(Constituted under the Karnataka Municipal Corporation Act 14
of 1977) and represented by the Commissioner having his office
at Lalbagh, Mangalore hereinafter called the Corporation of the
city of Mangalore which expression where the context admit
shall include his successors in office and assigns of the one part
and Smt. Geetha @ Gowri Kamath, aged about 53 years,
residing at 4-1 149/3, Sri Ramdev Kripa, Lalbagh, Mangalore-
575 003, hereinafter the Licensee of the other party and which
expression where the context admit shall include his permitted
assigns.
... ... ... ...
Now this indenture witnesses as follows:-
1. The Corporation of the City of Mangalore grants up to
the licensee sole and exclusive licence and authority for the use
of shop for vending other than fruits, vegetables, mutton,
chicken, fork, beef.
2. The Licence hereby granted shall be held and exercised
by the licensee for the period ending 31-03-2004 subject to the
terms and conditions mentioned hereinafter.
3. The licensee has deposit on.... the sum of
Rs.2,30,000/- (Rupees two lakhs thirty thousand only) for the
due performance and observance by the Licensee of the terms
and conditions herein contained and to be performed and
observed by the Licensee.
4. The Licensee shall pay to the Corporation of the City of
Mangalore the sum of Rs.1,130/- (Rupees one thousand one
hundred thirty only) on or before the 7th of each month.
5. The Licensee to the intend that the obligations may
continue throughout continuance of this grant covenants with
the Corporation of the City of Mangalore as follows:
(i) To pay the sum of money herein before mentioned in
the manner aforesaid, the Licensee shall be liable to
pay interest at the rate of 15% (Fifteen percent) per
annum on all amounts not paid on the due dates
herein fixed for payment until payment of the same.
(ii) Not to use the allotted premises for the purpose other
than parking of vehicles, without the written
permission of the Commissioner, Corporation of the
City of Mangalore.
(iii) Not to assign or underlet/sublet fully or part with
possession and benefit of the aid Licence or of the
liberties and privileges hereby granted or any part
thereof without first obtaining the written consent of
the Corporation of the City of Mangalore.
6. The Licensee will be liable to make good the amount of
arrears against him of sums adjusted due by him even after
termination of Licence.
7. Any arrears of Licence fee or other sums payable by
the Licensee will be recovered by the adjustment from the
deposit referred to above and if this is done, the Licensee shall
make good the deposit.
8. The Licensee shall keep the parking place allotted to
him vacant to enable the Corporation of the City of Mangalore to
occupy it immediately after the expiry of the period of Licence
under this grant i.e., on 31-03-2004 unless the Licence is
concealed prior to that date. No remission whatsoever will be
allotted to the Licensee on any account. In case of failure, the
Corporation of the city of Mangalore will vacate the premises
departmentally on licensee's expenses.
9. In the event if the licensee is found misusing the
premises, the Commissioner is empowered to cancel the
allotment and evict him from the premises.
10. The parking place must be kept clean and tidy.
11. Non compliance or violation of any of the above
conditions and terms or any other general regulations, which the
Corporation of the city of Mangalore considers to be essential for
the public safety, convenience and health, will result in the
cancellation of the Licensee."
Identical agreements are entered into with all the petitioners. The
licences granted to the petitioners are extended in terms of
proceedings dated 21-01-2014/5-02-2014 on the same terms and
conditions that prevailed earlier. The petitioners were continued to
hold the shops which come within the precincts of the Palike for
over 23 years now.
9. In the interregnum, the State issued a Circular on
19-07-2019 in supersession of all the earlier circulars to allot the
shops coming within the precincts of either the Municipality or the
Municipal Corporations by way of public auction. In the said
circular, the holders of shops are given right to first refusal. After
the notification is issued and the circular, there comes the
impugned communication, which direct the petitioners to participate
in the auction or receive notices to vacate. They are also given the
right of first refusal. The petitioners 4 and 5 have exercised their
right of first refusal. One such communication dated 23-01-2024
reads as follows:
"jAzÀ ,
¯Á¯ï¨ÁUï PÀªÀĶðAiÀįï PÁA¥ÉèQì£À ¨ÁrUÉzÁgÀgÀÄ
¯Á¯ï¨ÁUï, ªÀÄAUÀ¼ÀÆgÀÄ ªÀĺÁ£ÀUÀgÀ ¥Á°PÉ,
ªÀÄAUÀ¼ÀÆgÀÄ 575 003.
jUÉ,
ªÀiÁ£Àå PÀ«ÄµÀ£Àgï/ G¥À DAiÀÄÄPÀÛgÀÄ (PÀA)
ªÀiºÁ£ÀUÀgÀ ¥Á°PÉ
ªÀÄAUÀ¼ÀÆgÀÄ, zÀ.PÀ.
«µÀAiÀÄ: vÀªÀÄä w¼ÀĪÀ½PÉ ¥ÀvÀæ ¢£ÁAPÀ 22.01.2024
ªÀÄ£À¥Á/PÀAzÁ«/¹.Dgï.79/2022-23/J9
ªÀiÁ£ÀågÉÃ,
ªÉÄð£À «µÀAiÀÄPÉÌ ¸ÀA§AzsÀ ¥ÀlÖAvÉ ¤ªÀÄä »A¢£À w¼ÀĪÀ½PÉ ¥ÀvÀæ ¢£ÁAPÀ
03.01.2024 ªÀÄ.£À.¥Á/PÀAzÁ«/¹Dgï.79/2022-23/J9/PLO 158055gÀ ¥ÀvÀæzÀ°è ªÁtÂdå
¨ÁrUÉzÁgÀjUÉ Right of First Refusal C¢üPÁgÀªÀ£ÀÄß PÉÆlÄÖ FUÀ ¯Álj ªÀÄÆ®PÀ
JAzÀÄ w½¹gÀÄ«j ªÉÆzÀ®Ä PÉÆlÖ 03.01.2024gÀ ¥ÀvÀæ ºÁUÀÆ FV£À 22.01.2024gÀ ¥ÀvæÀ
vÀ¢égÀÄzÀݪÁVgÀĪÀÅzÀjAzÀ F ¥ÀæQæAiÉÄUÉ £ÀªÀÄä «gÉÆÃzsÀ«zÉ ºÁUÁV ºÁ° ¨ÁrUÉzÁgÀgÀgÁzÀ
£ÁªÀÅ AiÀiÁgÀÆ F ¯Álj ¥ÀæQæAiÉÄAiÀÄ°è ¨sÁUÀªÀ»¸ÀĪÀÅ¢®è.
zÀAiÀÄ«lÄÖ EzÀ£ÀÄß PÉÊ©qÀ¨ÉÃPÁV ¥ÁæxÀð£É.
¸ÀܼÀ: ¯Á¯ï¨ÁUï Ew vÀªÀÄä «±Áé¹UÀ¼ÀÄ
¢£ÁAPÀ:23-01-24 ¯Á¯ï¨ÁUï PÁA¥ÉèQì£À ¨ÁrUÉzÁgÀgÄÀ
(¸À» C¼ÀªÀr¹zÉ)"
Then comes a notification of public auction on 01-02-2014 seeking
to auction the shops that come within the precincts of the Palike.
Three of the shops that petitioners 1 to 3 hold are now reserved for
members belonging to Scheduled Castes and Scheduled Tribes.
Therefore, the right of refusal is said to be an imaginary right that
the petitioners can exercise. The issue is whether the petitioners
now can be evicted without following due process of law. The due
process of law, as projected by the learned senior counsel is that,
procedure stipulated under the Act should be followed. The issue
need not detain this Court for long or delve deep into the matter, as
the co-ordinate Bench of this Court in K.T. SURESH (supra) has
held as follows:
".... .... ....
18. Having heard learned counsel for the parties, the points
that would arise for consideration are:
1. Whether on the expiry of a lease/license
executed by the Corporation, Municipality or
the like, would such Corporation, Municipality
forcibly vacate the persons in occupation of
the shops leased/licensed by the
Corporation/Municipality or is required to
follow any particular procedure?
2. Whether in the present case the handover of
the premises by the respective petitioners can
be said to be voluntarily handed over as per
the submission of Ms. Geethadevi.M.P,
learned counsel for the Municipality?
3. What order?
19. I answer the above points as under:-
20. ANSWER TO POINT NO.1: Whether on the expiry of
a lease/license executed by the Corporation,
Municipality or the like, would such Corporation,
Municipality forcibly vacate the persons in
occupation of the shops leased/licensed by the
Corporation/Municipality or is required to follow
any particular procedure?
20.1 It is not in dispute that the premises in question
have been constructed by using IDSMT funds and
that the petitioners have been put in possession of
their respective shops by the Municipality where
the petitioners are carrying on business of vending
fruits and vegetables, cereals or the like, suffice to
state that petitioners are all petty traders dealing
with day-to-day requirements.
20.2 All the petitioners claim to have been put in
possession in the year 1999-2000, initially for a
period of five years which has been extended from
time to time on the basis of resolutions passed by
the Municipality and in terms of the resolution
dated 21.11.2011, it is claimed that the period of
lease is extended till 2025 and as such the lease
continues to be in existence. The aspect of this
resolution need not hold this Court much longer
inasmuch as the said resolution is subject to
approval by the State Government. The State
Government has rejected the said approval vide its
letter dated 26-10-2009 and as such it cannot now
be contended by the petitioners that the
lease/license continues to be in force or in
currency.
20.3 The lease having expired, the Municipality brought
the shops for auction, an Auction notification
having been issued, on a challenge being made to
the auction notification, this Court vide its order
dated 21.2.2022 in WP No.4084/2022 permitted
the petitioners to participate in the said auction.
Some of the petitioners did participate by
themselves or through their near and dear ones,
some of them succeeded, where most of them
failed in the auction, third parties have succeeded
as regards those shops.
20.4 In terms of The Karnataka Grama Panchayat
and Panchayathraj (Taluk Panchayat movable
and immovable Properties Transfer) Rules,
2017, Whenever a term of a lease of a shop or
premises were to expire, it would but be required
for the concerned Municipal Authority to bring it for
auction where the current lease/license holder
could also participate and if successful,
lease/license could be executed in favour of such
persons. Another option provided is that the
lessee/licensee may choose not to participate in the
said auction proceedings but could exercise right to
first refusal, quoting higher than the bid quoted by
the successful bidder or auction purchaser. The
right to first refusal has also not been exercised by
the petitioners in this matter, most of the
petitioners contending that the bids were on higher
end and as such were false and the petitioners
being small traders could not bid such higher
amounts. Thus, categorically indicating that the
petitioners were not interested in and did not
exercise right to first refusal.
20.5 From the aforesaid it is clear that the lease/license
has come to end, the petitioner's have not
succeeded in the auction nor exercised the right of
first refusal. Thus, the lease/license having come
to an end, looked at from any angle. Once the
lease/license comes to an end, it would be for the
lessee/licensee to vacate the premises and hand
over the same to the lessor/licensor to the
Municipality therein. That not having been done,
the only option available to the Municipality is
either to invoke the provisions of the T.P. Act for
eviction or to invoke the provisions of The Public
Premises (Eviction of Unauthorised
Occupants) Act, 1971, to evict the
lessee/licensees, since in this particular case there
is no dispute that the property belongs to the
Municipality and about the petitioner's being the
lessee/licensor of the said premises.
20.6 The authorities cannot take the law into their
own hands and cause forcible eviction of the
lessee/licensee but are required to follow the
due process of law by initiating necessary
proceedings and obtain judicial/quasi-judicial
orders for eviction and thereafter enforce the
same.
20.7 Thus, the contention of Ms. Geethadevi.M.P.
learned counsel for Municipality that on the
expiry of the lease/license the Municipality
could evict the lessee/licensee without any
particular order of a judicial or quasi judicial
authority is rejected.
20.8 Hence, I answer point No.1 by holding that on
the expiry of a lease/license executed by the
Corporation, Municipality or the like, such
Corporation, Municipality cannot forcibly
vacate the persons in occupation of the shops
leased/licensed by the
Corporation/Municipality but is required to
follow the procedure prescribed under the The
Public Premises (Eviction of Unauthorised
Occupants) Act, 1971, or The Transfer of
Property Act."
(Emphasis supplied)
The co-ordinate Bench holds that the licensees or lessees of shops
cannot be evicted unilaterally. The procedure stipulated in terms of
the Act or the Transfer of Property Act will have to be necessarily
followed. Another co-ordinate Bench of this Court in
K.MANJUNATH v. BANGALORE DEVELOPMENT AUTHORITY4
W.P.No.25075 of 2016 decided on 30-01-2019
considering a case where the Bangalore Development Authority had
directed eviction of trespassers also directs following of the
Karnataka Public Premises (Eviction of Unauthorised Occupants)
Act, 1974. The coordinate Bench following judgments of the Apex
Court and the Division Bench of this Court has held as follows:
".... .... ....
4. Learned Senior Advocate Sri. K. N. Phanindra,
appearing for the counsel on record for the petitioner submits
that the petitioner has been in the settled occupation of the site
on which he has built the structure; his ownership and
possession are vouched by the registered sale deed of 2006
followed by Katha Certificate, uttara pathra and tax paid
receipts; it has long been the settled position of law that in a
State which is governed by the Rule of Law a statutory authority
like the BDA cannot dispossess even a trespasser in settled
occupation; the impugned notice coupled with the stand of the
BDA in the Statement of Objections make out a prima-facie case
of unauthorized interference warranting indulgence of writ Court
to protect the poor citizen. He banks upon the Apex Court
decision in the case of MEGHMALA AND OTHERS VS., G.
NARASIMHA REDDY AND OTHERS REPORTED IN (2010) 8
SCC 383.
5. The learned Senior Panel Counsel for the
respondent-BDA opposes the petition prayers stating that the
entire property in which the suit site is situate was acquired by
it in the land acquisition that culminated into a final award dated
12.12.1977; the BDA being the absolute owner of the said site,
the version of the petitioner that he is the title holder to the
same is apparently inadmissible inasmuch as the conveyance
under which he claims to have acquired the property is of 2006
and thus the vendor had no title and therefore it is a case of
nemo dat quod non habet; that being so the petitioner is liable
to be non suited.
6. I have heard the learned Senior Advocate for the
petitioner and the learned Senior Panel Counsel for respondent-
BDA. I have perused the petition papers and the Statement of
Objections. I have read relevant paragraphs of the ruling of the
Apex Court in Megamala' case (supra).
7. The petitioner has produced a registered sale deed
dated 22.02.2006 at Annexure-B, Uttara Patra dated
17.03.2006 issued by the BBMP at Annexure-B1 and Khatha
Certificate dated 03.12.2012 at Annexure-C which specifically
mention his name as being the owner of the property in
question. Annexure-E and E1 are the original photographs
which prima-facie show that a small shed does exist in the said
site. Petitioner has also produced the title deeds of his
predecessors in interest. All these prima-facie establish at least
one fact that the petitioner gained entry to the property in
question years ago; he has put up a small structure and that he
has been in a settled occupation thereof with some semblance
of rights.
8. The text and context of the impugned notice
coupled with the stand of the respondent-BDA in its
pleadings prima-facie justify the formation of a
considered opinion that there is a potential threat of
dispossession of the petitioner from the property in
question by the respondent-BDA and its officials, which
appears to be the lawful owner of the same having
acquired it decades ago. Be that as it may, settled legal
position is that even a trespasser in the settled
possession of the property cannot be thrown out by the
State or its instrumentalities except by a course of action
in accordance with law. The removal of such trespassers
by extra judicial methods strikes at the law, reason and
justice.
9. The Division Bench of this Court in the case of
M/S. PATIL EXHIBITORS (PVT) LTD. VS. THE
CORPORATION OF THE CITY OF BANGALORE reported in
ILR 1985 KAR 3700 has observed as under:
"10. The second aspect is this. It is part of the
concept of "Rule of Law" that no claim to a right to
dispossess by the use of force without recourse to
procedure in accordance with law is recognized or
countenanced by Courts. Such a right in the
Respondent cannot be recognized regardless of the
question whether or not the appellant itself has any
subsisting right to remain in possession. the
protection that the Court affords is not of the
possession - which in the circumstances is litigious
possession and cannot be equated with lawful
possession - but a protection against forcible
dispossession. The basis of relief is a corollary of the
principle that even with the best of title there can be
no forcible dispossession."
10. The Apex Court in the aforesaid Meghmala's
case, at paragraph Nos.46 to 48 has observed as under:
"46. Even a trespasser cannot be evicted
forcibly. Thus a person in illegal occupation of the
land has to be evicted following the procedure
prescribed under the law. Xxxxxxxx
47. In Nagar Palika, Jind v. Jagat Singh this
Court observed that Section 6 of the Specific Relief
Act, 1963 is based on the principle that even a
trespasser is entitled to protect his possession except
against the true owner and purports to protect a
person in possession from being dispossessed except
in due process of law.
48. Even the State Authorities cannot dispossess
a person by an executive order. The authorities
cannot become the law unto themselves. It would be
in violation of the rule of law. The Government can
resume possession only in a manner known to or
recognized by law and not otherwise. xxxxxxxx"
(only such portion of the paragraphs as are relevant
to the fact matrix of the case are quoted, others being left
out)
11. In the above circumstances, this writ petition
succeeds in part; a writ of mandamus issues restraining
the respondent-BDA and its officials from forcibly
dispossessing the petitioner except in accordance with
law.
12. This judgment shall not come in the way of
the respondent-BDA taking of appropriate proceedings
under the provisions of the Karnataka Public Premises
(Eviction of Unauthorized Occupants) Act, 1974 or such
other course before appropriate forum, in accordance
with law."
(Emphasis supplied)
In the light of the issue standing answered by the aforesaid
judgments, the petition deserves to succeed as the circular issued
by the 1st respondent dated 19-07-2019 also makes reference to
the successful auction bidders to be lessees. Therefore, the thin line
between licensee and the lessee is so bleak that in the peculiar
facts of the case and more so, in the light of the law laid down by
the co-ordinate Benches of this Court.
10. Insofar as judgments sought to be relied on by the
learned counsel appearing for the respondents that the licensees
and lessees stand on a different footing and, therefore, the
petitioners in terms of agreements were all licensees and protection
under the Act or the Transfer of Property Act would not become
applicable, those judgments in the first blush would merit
acceptance, as the petitioners are undoubtedly licensees who
entered shop premises on licence being granted to hold the shops
for a fixed tenure. But, in view of the judgment rendered by the
co-ordinate Benches of this Court (supra), those judgments would
be inapplicable to the facts of the case. Therefore, the petition
deserves to succeed and the petitioners are entitled for a
declaration that they cannot be evicted except by following the
procedure under the Act. It is open to the respondents/Palike to
initiate such action and then proceed with the tender qua the shops
that the petitioners are holding.
11. For the aforesaid reasons, I pass the following:
ORDER
(i) Writ Petition is allowed in part and challenge to the
Circular dated 19-07-2019 stands rejected.
(ii) Notice dated 21-03-2023, the intimation letter dated
3-01-2024 issued to the petitioners and the auction
notification dated 1-02-2024 insofar as the petitioners
are concerned all stand quashed.
(iii) A direction is issued to the respondents/Palike to follow
the procedure under the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971 and then call for
tender, after the petitioners are evicted by following the
procedure under the Act.
Consequently, I.A.No.1 of 2024 also stands disposed.
Sd/-
JUDGE
bkp
CT:MJ
