Dismissed

The State Khadi and v. P. Kiran Kumar S/O Narayan Rao

Karnataka HC5 Apr 2023WP/103421/2013

Case brief

AI extract

What is this about?

This writ petition challenged the District Judge's order setting aside a Deputy Commissioner's eviction order under the Karnataka Public Premises Act. The High Court held that the Act does not apply as the property is not public premises and no unauthorized occupation was established. The Writ Petition was dismissed.

What did the court decide?

The Writ Petition seeking interference with the District Judge's order dismissing the eviction petition upheld the impugned order.

The State Khadi and Vs P. Kiran Kumar S/O Narayan Rao — Property and Title | Karnataka HC (2023)

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WP No. 103421 of 2013

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IN THE HIGH COURT OF KARNATAKA,

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KALABURAGI BENCH

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DATED THIS THE 5^TH DAY OF APRIL, 2023

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BEFORE

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THE HON'BLE MS. JUSTICE JYOTI MULIMANI

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WRIT PETITION NO. 103421 OF 2013 (GM-PP)

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BETWEEN:

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THE STATE KHADI AND VILLAGE INDUSTRIES BOARD, BIDAR, REPRESENTED BY DISTRICT DEVELOPMENT OFFICER, BIDAR.

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…PETITIONER

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(BY SMT.VEERANI V.NANDI., ADVOCATE FOR SRI.RAVI B.PATIL., ADVOCATE)

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AND:

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Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA

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P. KIRAN KUMAR S/O NARAYAN RAO, AGED ABOUT 32 YEARS, R/O SRI SAI COLONY, GANDHI GUNJ ROAD, BIDAR, C/O M/S. ROLEX BAR & RESTURANT, NEAR POLYTECHNIC COLELGE, GULLAR HAVELI, BIDAR – 585 401.

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…RESPONDENT

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(BY SRI.AMEET KUMAR DESHPANDE., SENIOR ADVOCATE FOR SRI.GANESH S.KALBURGI., ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, SEEKING CERTAIN RELIEFS.

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THIS WRIT PETITION, COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Smt.Veerani V.Nandi., learned counsel on behalf of Sri.Ravi B.Patil., for the petitioner and Sri.Ameet Kumar Deshpande. learned Senior counsel on behalf of Sri.Ganesh S.Kalburgi., for respondent have appeared in person.

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2. The brief facts are these:

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It is stated that the petitioner purchased an open plot No.16 bearing CMC No.8-6-68/16 (Old) 8-6-203 (new) situated at Gullar Haveli, Behind ING Vysya Bank, Bidar in an Open Public Auction from the Liquidator of “Teli Industrial Co-Operative Society Ltd., Bidar” as per Notification No.KB/DOBDR/Liq/87-88 dated 24.04.1987 under Special Order of Deputy Registrar of Co–operative Societies, Bidar in File NO.DRF/ABN/LIQ/87-88/785 dated 23.05.1987 under a Registered Sale Deed bearing No.1484/87-88 dated 18.06.1987 for a considerable amount of Rs.24,765/- (Rupees Twenty Four Thousand Seven Hundred and Sixty-Five only). After the

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purchase of the property, the petitioner deputed a watchman namely Srikanth to look after the same.

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It is averred that one Sri.P.Narayana Rao who is the owner-cum-proprietor of M/s.Rolex Bar and Restaurant in collusion with the watchman put up a room for the installation of a Power generator over a portion of Plot No.16. The same was objected to by the petitioner by filing a complaint before the jurisdictional police. It is said that P.Narayana Rao executed an undertaking on 05.06.1999 in favor of the petitioner to remove the room.

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It is averred that the respondent purchased Plot No.8 bearing CMC No.8-6-68/15/8 (very old) 8-6-186/8 (old) 8-6-240/8 (New) from one Mantappa @ Mahantappa under a registered sale deed dated 11.08.2001 and secured construction permission from CMC, Bidar. It is alleged that he constructed a room over plot No.16 owned by the petitioner. The petitioner being aggrieved by the illegal and unauthorized occupation under the guise of an alleged sale deed in respect of plot No.8 over plot No.16 owned by the petitioner approached the Deputy Commissioner, Bidar, and filed a petition under the

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provisions of the Karnataka Public Premises (Eviction of Unauthorized Occupant) Act, 1974 (for short ‘the Act’) and sought the Order of Eviction of the respondent. After service of the notice, the respondent appeared and contended that he has purchased plot No.8 and hence he sought to contend that he is not an unauthorized occupant and accordingly sought for dismissal of the proceedings initiated. The Deputy Commissioner passed an order on 20.02.2007 holding that the respondent is claiming title over plot No.8 which is a separate and distinct property and held that plot No.16 is the absolute property of the Khadi and Village Industries and any encroachment and occupation over the said plot is required to be removed and consequently directed the CMC, Bidar and the Tahasildar to carry out the removal of unauthorized encroachment from the property.

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The respondent challenged the order of the Deputy Commissioner, Bidar before the Addl. District and Sessions Judge, Bidar in M.A.No.65/2007. The appeal came to be allowed vide order dated 21.04.2012. This order is called into question by the petitioner in this Writ Petition on several grounds as set out in the Memorandum of Writ Petition.

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Smt.Veerani V.Nandi., learned counsel for the

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petitioner submits that the impugned order suffers from serious irregularities and the order cannot be sustained either in law or on facts.

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Next, she submits that the District Judge has proceeded mechanically without appreciating the material evidence on record. It is also submitted that the reasoning arrived at by the District Judge based on the alleged Sale Deed produced by the Respondent pertains to Plot No.8 having a different dimension and boundaries compared to the sale deed in favor of the petitioner. Hence the reasoning of the District Judge that the dispute between the parties is a dispute of title, and location and with regard to boundary and encroachment is contrary to the material on records. It is also contended that the order is based on mere assumption and presumptions and hence the same is liable to be quashed.

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A further submission is made that the boundaries of Plot No.8 and Plot No.16 differ from each other and there is no resemblance to the boundaries of the sale deed produced by

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the petitioner in respect of Plot No.16. Hence, the reasoning of District Judge that it is a boundary dispute is also untenable.

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Learned counsel vehemently contended that the District Judge confused the nature of the defense taken by the Respondent. She submitted that the Respondent never disputed the title of the petitioner. The reasoning that it is a title dispute and hence the provisions of the Act cannot be applied is also incorrect.

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Lastly, she submitted that viewed from any angle, the order passed by the District Judge is arbitrary, illegal, and capricious in nature and hence the same is liable to be quashed.

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Sri.Ameet Kumar Deshpande., learned Senior counsel appearing on behalf of the respondent justified the order passed by the District Judge.

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Next, he submits the provisions of the Karnataka Public Premises (Eviction of Unauthorized Occupants) Act, 1974 are not attracted to the facts and circumstances of the case.

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A further submission is made that to invoke the provisions of the Act, the property should be public premises and a person must be in unauthorized occupation of it. It is also submitted that in the present case, neither the premises are public premises nor the respondent is an unauthorized occupant.

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Learned senior counsel vehemently contended that the respondent is the absolute owner of plot No.8 and he has no concern with the open plot of the petitioner. It is further submitted that the petitioner has made allegations against one P. Narayana Rao and Srikanth. The respondent is not in unauthorized occupation of any portion of the property as alleged by the petitioner.

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Lastly, he submitted that the District Judge in extenso referred to the material on record and rightly set aside the order of the Deputy Commissioner. Hence, he submits that the petitioner has not made out any grounds to interfere with the order. Accordingly, he prayed for the dismissal of the Writ Petition.

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Heard, the contentions urged on behalf of the

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respective parties and perused the Writ papers and also the Annexures with utmost care.

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The short and simple point which arises for my consideration is:

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Is the order of the District Judge requires

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interference?

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The facts have been sufficiently stated and the same does not require reiteration.

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The main argument in the present case centered around the applicability of the provisions of the Karnataka Public Premises (Eviction of Unauthorized Occupants) Act, 1974.

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Suffice it to note that the Act of 1974 has been enacted to make provisions for the eviction of unauthorized occupants from public premises.

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Section 2 sets out definitions. Section 2(e) defines Public Premises. Section 2(g) defines Unauthorized occupation. The Act also sets out provisions for the issue of show cause notice passing an order of eviction and also filing an appeal. In order

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to initiate an action for eviction of an unauthorized occupant, under Karnataka Act, 1974, it has to be shown that the premises in question are public premises and a person should be in unauthorized occupation of the same.

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It is well known that the object of the Act is to provide for eviction of the unauthorized occupants from public premises. It is incumbent upon the Competent Officer to satisfy himself whether the property in question is public premises or not. Only then he may make an order of eviction; in the order of eviction, reasons shall also be recorded. The question as to whether a person is an unauthorized occupant or his occupation is one under authority has to be decided by the Competent Authority with reference to the public premises only.

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A good deal of argument is canvassed about the definition of public premises and the applicability of the provisions of the Act.

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Smt.Veerani V.Nandi., in presenting her argument strenuously urged that the Karnataka State Khadi and Village Industries, Bidar is a Co-operative Society as defined under Section 2(e)(viii) of the Act. Hence, the petitioner has rightly

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invoked the provisions of the Act of 1974 for the eviction of the respondent.

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By way of answer to this contention, it has been urged on behalf of the respondent that neither the property in question is a public premise nor the respondent is an unauthorized occupant. The entire proceedings under Act are bad in law.

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I have considered the rival contentions urged on behalf of respective parties with care.

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It is quite true that the petitioner purchased plot No.16 bearing CMC No.8-6-68/16 (old) 8-6-203 (New) in an open public auction from the Liquidator of Teli Industrial Co-operative Society Ltd., on 18.06.1987. The respondent purchased Plot No.8 bearing CMC. No.8-6-68/15/8 (very old) 8-6-186/8 (old) 8-6-240/8 (New) from one Mantappa @ Mahantappa under a registered sale deed dated:11.08.2001. There are two registered sale deeds in respect of two different properties. The dimensions and the measurements of both properties are different.

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It is the specific contention of the petitioner that the respondent is an unauthorized occupant of a portion of plot

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No.16 and hence they filed a petition for eviction under the provisions of the Act, 1974. The Deputy Commissioner passed the order. The true copy of the order is furnished in the writ petition and the same is marked as Annexure-J. A perusal of the order depicts that the Deputy Commissioner except for saying that the property as stated in the petition is the property of the Khadi Village and Industries Board and it is its exclusive property and any encroachment and occupation thereon by the respondent is unauthorized and ordered to remove the same, no reasons are assigned for eviction. No findings are given about the nature of the property. As already noted above, the Competent Officer has to satisfy himself that the property in question is a public premise. There is nothing on record to show that the Competent Authority/Officer is satisfied himself that the property in question i.e., Plot No.16 is a public premise. Except for pleading that the respondent is an unauthorized occupant, the petitioner has failed to establish that Plot No.16 is public premises and the respondent is an unauthorized occupant.

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Smt.Veerani V.Nandi., drew the attention of the Court to Annexure-C to contend that the father of respondent

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Sri.P.Narayana Rao executed an undertaking on 05.06.1999 and has stated that Khadi and Village Industries Board had allowed him to occupy a portion of the property and he had put up generator in a space approximately measuring 15 X 10 by constructing Zinc sheet shed. He has also stated that he has no right over the property and he has removed the shed. She argued by saying that, the petitioner rightly invoked the provisions of the Act of 1974 for eviction.

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I have considered the submission made on behalf of the petitioner and also perused Annexure-C. One P.Narayana Rao has said that he has removed the shed which was constructed in a portion of Plot No.16. It is the specific contention of the petitioner that the respondent is the son of P.Narayana Rao and he continued to occupy a portion of plot No.16 which belongs to the petitioner. It may be true that the respondent is the son of P. Narayana Rao, but what is required to be considered is whether the respondent was in possession of plot No.16.

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As already noted above, the object of the Act is to provide for the eviction of unauthorized occupants from public premises only. The definition of Public Premises is set out in

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Section 2(e) and the meaning and expression ‘unauthorized occupation’ is defined in Section 2(g) of the Act. The law is well-settled that the property should be a public premise and a person should be in unauthorized occupation of public premises. In the present case, both elements are absent. Furthermore, there is nothing on record to show that the petitioner at any point in time had allowed the respondent to occupy the premises. Hence, the contention about unauthorized and illegal occupation is satisfactorily hopeless.

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The provisions of the Act are quite clear. The provisions of the Act provides a mode for eviction of unauthorized occupants. In the present case, the petitioner moved a petition for eviction of the respondent. The Deputy Commissioner passed the order without ascertaining the factual aspects of the matter. If the foregoing analysis of the relevant law is correct, it can be safely summarized by stating that the provisions of the Act are quite clear and it provides for a mode for eviction of unauthorized occupants only. We, therefore, not only may but must, in accordance with the provisions of the Act understand the meaning and the expression of public premises and unauthorized occupation.

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The confusion which, I venture to think, has sometimes crept into the cases is, in my view, due to a failure to understand the factual aspects and provisions of the Act and in particular to keep steadfastly in mind that (first) that there should a public premises and (second) that the occupation must be unauthorized. The misconception consists of confusion about understanding the Suttle difference. There is thus a double misconception in the theory. Unconsciously, the authorities slip into misunderstanding the provisions of the Act. I have no doubt at all that the decision at which the Deputy Commissioner arrived is substantially illegal and also against the law. I, therefore, disagree with the order passed by the Deputy Commissioner. I may venture to say that the Deputy Commissioner has failed to have regard to relevant considerations and disregarded relevant matters.

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The District Judge took note of the material on record and concluded that there is no clear material to show that the property in question is a public premise and the respondent is in unauthorized occupation of the same. In my considered view, the District Judge is justified in concluding so.

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Resultantly, the Writ Petition is dismissed.

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The parties are at liberty to take recourse under the law if

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they are so advised.

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Sd/JUDGE

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TKN List No.: 1 Sl No.: 60

The State Khadi and v. P. Kiran Kumar S/O Narayan Rao

Case brief

What is this about?

What did the court decide?

The State Khadi and v. P. Kiran Kumar S/O Narayan Rao

Case brief

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