Karnataka High Court

Sri. Dayanand vs Union Of India on 9 January, 2024

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

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                                                              WP No. 16366 of 2023
                                                          C/W WP No. 16187 of 2023



                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 9TH DAY OF JANUARY, 2024

                                                 BEFORE
                             THE HON'BLE MR JUSTICE M.NAGAPRASANNA


                              WRIT PETITION NO.16366 OF 2023 (GM-PP)
                                               C/W
                              WRIT PETITION NO.16187 OF 2023 (GM-PP)

                      IN W.P.NO.16366/2023:

                      BETWEEN:

                            SRI. DAYANAND
                            S/O LATE BHUJANGA AMIN,
                            AGED ABOUT 52 YEARS,
                            R/AT 7/29, KODI HOUSE POST OFFICE,
                            HEJAMADI KODI, UDUPI, MULKY,
                            KARNATAKA-574103.
                                                                         ...PETITIONER
                      (BY MS. ASHRITHA A. SHETTY, ADVOCATE)

                      AND:

                      1.    UNION OF INDIA
Digitally signed by         MINISTRY OF PORTS,
PADMAVATHI B K              SHIPPING AND WATERWAYS,
Location: HIGH              PARIVAHAN BHAVAN 1,
COURT OF                    PARLIAMENT STREET,
KARNATAKA                   NEW DELHI-110001.
                            REP. BY ITS SECRETARY

                      2.    NEW MANGALORE PORT AUTHORITY
                            REP BY ITS ASST. ESTATE MANAGER GR.I,
                            PANAMBUR,
                            MANGALORE-575016.

                                                                       ...RESPONDENTS
                      (BY SMT. PREETHA MAHADEVAN, CGC FOR R1;
                          SRI. TEJAS S.R., ADV. FOR R2)
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                                       WP No. 16366 of 2023
                                   C/W WP No. 16187 of 2023




     THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS;
QUASHING THE IMPUGNED SHOW CAUSE NOTICE DTD 06.07.23
ISSUED BY THE 2ND RESPONDENT AS AT ANNEXURE-A.


IN W.P.NO.16187/2023:

BETWEEN:

     SRI. DAYANAND
     S/O LATE BHUJANGA AMIN,
     AGED ABOUT 52 YEARS,
     R/AT 7/29, KODI HOUSE POST OFFICE,
     HEJAMADI KODI, UDUPI, MULKY,
     KARNATAKA-574103.
                                                  ...PETITIONER
(BY MS. ASHRITHA A. SHETTY, ADVOCATE)

AND:

1.   UNION OF INDIA
     MINISTRY OF PORTS,
     SHIPPING AND WATERWAYS,
     PARIVAHAN BHAVAN 1,
     PARLIAMENT STREET,
     NEW DELHI-110001.

2.   NEW MANGALORE PORT AUTHORITY
     REP BY ITS ASST. ESTATE MANAGER GR.I,
     PANAMBUR,
     MANGALORE-575016.
     REG AS COMPANIES ACT

                                                ...RESPONDENTS
(BY SRI. KUSHALAPPA B.M., ADV. FOR R1;
    SRI. TEJAS S.R., ADV. FOR R2)

     THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS;
QUASHING THE IMPUGNED SHOW CAUSE NOTICE DTD 06.07.23
ISSUED BY THE R-2 BEARING NO.P.P.NO.02/2023/EO AS AT
ANNEXURE-A.
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                                                 NC: 2024:KHC:1000
                                             WP No. 16366 of 2023
                                         C/W WP No. 16187 of 2023



      THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:

                                  ORDER

The petitioner common in both these cases called in

question a show cause notice dated 06.07.2023 issued to the

petitioner seeking to show cause as to why the amount of

damages of Rs.2,86,427/- should not be deducted from the

petitioner for unauthorized dues and occupation of a particular

premises.

2. Heard the learned counsel Ms.Ashritha A. Shetty,

appearing for the petitioner and the learned counsel Sri.Tejas

S.R., appearing for respondent No.2 and the

learned CGC., Smt. Preetha Mahadevan, appearing for

respondent No.1 in W.P.No.16366/2023 and Sri.Kushalappa

B.M., appearing for respondent No.1 in W.P.No.16187/2023.

3. The petitioner claims to be a tenant from the hands

of respondent No.2 - New Mangalore Port Authority and after

the closure of the lease period, the petitioner is said to have

continued in the lease, which led to a notice to be caused by

respondent No.2 on 25.11.2022 on the score that the petitioner

has unauthorizedly kept the port land belonging to respondent

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No.2 and sought damages to be paid at Rs.2,86,427/-. The

petitioner is said to have replied to the said notice on

05.12.2022. This results in the impugned notice directing

payment of the aforesaid amount, as damages. The petitioner

is said to have submitted a reply, yet again, on 11.07.2023.

The petitioner then knocks at the doors of this Court calling in

question the said show cause notice so issued on 06.07.2023.

4. Learned counsel for the petitioner submits that the

notice is issued by the Estate Officer under the provisions of

Public Premises (Eviction of Unauthorised Occupants) Act, 1971

(for short 'P.P. Act') and it is illegal, as the person who has

issued the notice has no jurisdiction to issue. This is the

primary ground inter alia that is projected by the learned

counsel for the petitioner.

5. The other ground is that the petitioner has not been

in possession of the property since 2016 and the very act of

imposing damages upon the petitioner is contrary to law.

6. Learned counsel for respondent No.2 would submit

that the contention with regard to the Estate Officer of the

same organization issuing the notice is untenable, in the light

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of the judgment of the Division Bench of this Court in the case

of Indian Bank vs. M/s Blaze & Central (P) Ltd. He would

submit that the damages are not claimed for the period in

which the petitioner is not in possession but for the period in

which he is in possession of the property. He would submit

that the petitioner had submitted his reply and it would be

considered in accordance with law and appropriate orders

would be passed.

7. Learned counsel for the respondent No.2 submits

that the petitioner is in fact in possession of the property upto

15.11.2022 and damages are claimed for the said period and

not the period beyond that. Be those submissions as they may.

8. Insofar as the first ground is concerned, the

Division Bench (Supra) interpreting the very act has held as

follows:

" 9. As regards the view taken by the learned Single Judge that the Estate Officer being an Officer of the Bank he was Judge in his own cause and therefore the notice issued and the order passed were violative of rules of natural justice, it appears to us that when Section 3 of the Act authorises the appointment of an officer of a statutory body concerned as Estate Officer, and the officer so appointed alone is competent to issue notice under Section 4 and pass order under

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Section 5 of the Act, it would be a case of statutory exception to the applicability of the rules of natural justice. In such a case there is no scope for applying the rules of natural justice and to hold that he is disabled to issue the notice and pass the order of eviction, as rules of natural justice only supplement the law and do not supplant it. See : Union of India v. J. N. Sinha, . Debarring the Estate Officer from exercising his powers by applying rules of natural justice would result in the defeating of the provisions of the Act as there would be no officer who could issue notice under Section 4 or pass an order under Section 5 of the Act. Unless the provisions of the Act is challenged on the ground that it is unconstitutional for conferring power to inquire and order eviction from a public premises on an officer of the concerned public authority and the challenge is upheld, the order passed by the Estate Officer cannot be set aside on the ground that he was an officer of the public authority which intends to evict the person concerned. In fact the first respondent had questioned the constitutional validity of the Act which was left open by the learned Single Judge as the two other questions were answered in favour of the first respondent."

In the light of the said judgment rendered by the Division

Bench, which permits the Estate Officer of the same

organization to initiate proceedings under the P.P Act, the said

ground is unsustainable.

9. The other ground is that the petitioner is not in

possession of the property right from 2016 and the damages

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are claimed contrary to law. This is a matter which is a realm of

disputed question of fact, which has to be addressed by

respondent. The petitioner has replied to the show cause notice

so issued by the respondent on 06.07.2023. Therefore, it is for

respondent No.2 to consider the same and pass appropriate