Partly allowed

Sri D Rajshekar v. the State of Karnataka

Karnataka HC25 Mar 2024WP/6296/2024

Case brief

AI extract

What is this about?

Shop licensees challenged a municipal tender/auction notification for their shops. Relying on coordinate Bench decisions holding that licensees cannot be forcibly evicted except by due process, the Court partly allowed the writ petitions, quashed the notifications and directed eviction proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act before re-tender.

What did the court decide?

Tender notification dated 21.12.2023 and auction notification dated 06.12.2023 quashed; TMC Beluru directed to follow Public Premises Act procedure before calling fresh tender.

Sri D Rajshekar Vs the State of Karnataka — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:12355 WP No. 6296 of 2024 C/W WP No. 1200 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 6296 OF 2024 (GM-TEN)

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C/W

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WRIT PETITION NO. 1200 OF 2024 (GM-TEN)

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IN W.P.No.6296/2024

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BETWEEN:

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Digitally signed by NAGAVENI Location: HIGH COURT OF KARNATAKA

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SRI. D. RAJSHEKAR, S/O DASAPPA SHETTY, AGED ABOUT 64 YEARS, RAVIRAJ CLOTH MERCHANT, MUNCIPALITY SHOPNO.1/4, NEAR BELUR BUS STAND, BASVESWARA CIRCLE, BELURU, HASSAN DISTRICT – 573 115. …PETITIONER

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(BY SRI. SARAVANA S., ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, REPRESENTED BY ITS SECRETARY, MUNICIPAL ADMINISTRATION-2 AND URBAN DEVELOPMENT DEPARTMENT, 4^TH FLOOR, VIKASA SOUDHA, DR.B.R.AMBEDKAR VEEDHI, BENGALURU – 560 001.

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DEPUTY COMMISSIONER, HASSAN DISTRICT, HASSAN – 573 201.

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TOWN MUNICIPAL COUNCIL, BELURU, HASSAN DISTRICT – 573 115. REPRESENTED BY ITS CHIEF OFFICER.

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…RESPONDENTS

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(BY SRI.K.S.HARISH, GOVERNMENT ADVOCATE FOR R1 & R2; SRI.A.NAGARAJAPPA, ADVOCATE FOR R3)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO a) QUASH THE TENDER PROCESS CONDUCTED BY THE R3 ON AT ANNEXURE - F 21/12/2023 PURSUANT TO THE AUCTION NOTIFICATION THROUGH E-PROCUREMENT VIDE NO. PU.BE/KAM.V/MISCLLENEOUS/02/2023-24 DATED 06/12/2023 AT ANNEXURE-E AS WITHOUT JURISDICTION IN SO FAR AS THE SHOP OF THE PETITIONER BEARING NO.1/4 SITUATED IN COMMERCIAL COMPLEX OF R3 IS CONCERNED AND ETC.,

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IN W.P.No.1200/2024

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BETWEEN:

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SRI. JAYARAMU B.R., S/O LATE N.V.RANGADAS, AGED ABOUT 55 YEARS, R/AT HOLEBEEDHI, 1^ST CROSS, NEAR EURO KIDS SCHOOL,

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BELURU,

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HASSAN DISTRICT – 573 115.

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SRI. MOHAMMED DAWOOD, S/O LATE MOHAMMED HUSSAIN, AGED ABOUT 49 YEARS, R/O NEHRUNAGAR, BELURU, HASSAN DISTRICT – 573 115.

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SRI. K.T.HARISH, S/O THIMMA SHETTY, AGED ABOUT 42 YEARS, R/O SHANKARA DEVARAPETE, BELURU, HASSAN DISTRICT – 573 115.

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SRI. MURALI B.S., S/O LATE B.L.SAMPATH BHAT, AGED ABOUT 59 YEARS, R/O NO.10/64, DHAMAYANTHI, HONDA STREET FORT, BELURU, HASSAN DISTRICT – 573 115.

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SMT. RENUKA, W/O RANGEGOWDA S.Y., AGED ABOUT 55 YEARS, R/O TAGARE VILLAGE AND POST, BELURU, HASSAN DISTRICT – 573 115.

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SRI. SANTHOSH KUMAR M, S/O LATE MANJUNATH RAO, AGED ABOUT 38 YEARS,

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R/O HOLEBEEDHI, BELURU,

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HASSAN DISTRICT – 573 115.

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SRI. A.R.NAGESH, S/O LATE A.H.RUDREGOWDA, AGED ABOUT 60 YEARS, R/O GENDEHALLI ROAD, BELURU TOWN, BELURU, HASSAN DISTRICT – 573 115.

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SRI. ARAVINDA, S/O LATE RAMEGOWDA, AGED ABOUT 65 YEARS, R/O SANYASAHALLI VILLAGE, BELURU, HASSAN DISTRICT – 573 115.

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SRI. G.R. SATHISH, S/O LATE RAJAGOPAL, AGED ABOUT 56 YEARS, R/O SANYASAHALLI VILLAGE, BELURU, HASSAN DISTRICT – 573 115.

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SRI. VENUGOPAL B.R., S/O LATE RANGADAS, AGED ABOUT 53 YEARS, R/O KEMPEGOWDA ROAD, BELURU, HASSAN DISTRICT – 573 115.

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SRI. S.M.HONNAPPA, S/O LATE S.P.MARIVENKATEGOWDA, AGED ABOUT 63 YEARS, R/O SANYASAHALLI VILLAGE,

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BELURU,

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HASSAN DISTRICT – 573 115.

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SRI. RAMESH K.R., S/O RAMASHETTY K.V., AGED ABOUT 62 YEARS, R/O GURAPPA GOWDA STREET, BELURU, HASSAN DISTRICT – 573 115.

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SRI. C.R.LOKESH, S/O C.H.RAMASWAMY, AGED ABOUT 46 YEARS, R/O PUMP HOUSE ROAD, BELURU,

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HASSAN DISTRICT – 573 115.

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SRI. C.R.NAGESH, S/O C.H.RAMASWAMY, AGED ABOUT 45 YEARS, R/O PUMP HOUSE ROAD, BELURU, HASSAN DISTRICT – 573 115.

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SRI. HITESH, S/O VELJIBHAI SACHANIA, AGED ABOUT 59 YEARS, R/O TEMPLE MAIN ROAD, BELURU, HASSAN DISTRICT – 573 115.

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SRI. DIKRUTH H.M., S/O LATE MANJUNATH, AGED ABOUT 31 YEARS, R/O CHANNEGOWDA BEEDHI, BELURU, HASSAN DISTRICT – 573 115.

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SRI. VENKATESH C.R., S/O RAMASWAMY C.H., AGED ABOUT 47 YEARS, R/O PUMP HOUSE ROAD, BELURU,

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HASSAN DISTRICT – 573 115.

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SRI. VIKRAM SINGH, S/O SUJAN SINGH, AGED ABOUT 43 YEARS, R/O OLD POST OFFICE ROAD, BELURU,

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HASSAN DISTRICT – 573 115.

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SMT. UMA, W/O LATE SURESH BABU, AGED ABOUT 50 YEARS, R/O MAIN ROAD, BELURU TOWN, BELURU, HASSAN DISTRICT – 573 115.

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…PETITIONERS

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(BY SRI. RAMESH K.R., ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, REPRESENTED BY ITS SECRETARY, URBAN DEVELOPMENT DEPARTMENT, VIKASA SOUDHA, BENGALURU – 560 001.

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THE DEPUTY COMMISSIONER, HASSAN DISTRICT, HASSAN – 573 201.

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NC: 2024:KHC:12355 WP No. 6296 of 2024 C/W WP No. 1200 of 2024

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TOWN MUNICIPAL COUNCIL, BELURU,

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HASSAN DISTRICT – 573 115. REPRESENTED BY ITS CHIEF OFFICER.

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…RESPONDENTS

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(BY SRI.K.S.HARISH, GOVERNMENT ADVOCATE FOR R1 & R2; SRI.A.NAGARAJAPPA, ADVOCATE FOR R3)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE TENDER PROCESS CONDUCTED BY THE R3 ON 21/12/2023 PURSUANT TO THE AUCTION NOTIFICATION THROUGH E- PROCUREMENT DATED 06/12/2023 AT ANNEXURE-D ISSUED BY THE R3 AND THEREBY DIRECT THE R3 TO CONDUCT THE RE-TENDER THROUGH E-TENDER PROCUREMENT TO DISPOSE OF THE SHOP PREMISES BELONGING TO THE R3 SITUATED IN BELUR TOWN AND ETC.

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

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ORDER

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The petitioners are before this Court, seeking the following prayers:

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In W.P.No.6296/2024:

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"(a) Issue a writ of Certiorari Quashing the tender process conducted by the 3rd respondent On at Annexure-F 21.12.2023 pursuant to the auction Notification through e-procurement Vide No.PU.BE/KAM.V/MISCLLENEOUS/02/2023-24, dated.06.12.2023 at Annexure-E, as without

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jurisdiction in so far as the shop of the petitioner bearing No.1/4 situated in Commercial Complex of 3rd respondent is concerned.

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( b) Issue a writ of Mandamus directing the respondents to extend the Lease term in respect of the shop premises bearing no. 1/4 as per the representation [Annexure-D] Dated 13/12/23 in terms of Circular dated. 19/07/2019, 30/12/2010, [Annexure-C & C1]; and

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(c) Grant such other relief/reliefs as this Hon'ble Court deems fit in the facts and circumstances of the case.”

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In W.P.No.1200/2024:

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"a) Issue a writ of Certiorari or any other appropriate writ or order or direction quashing the tender process conducted by the 3rd respondent on 21.12.2023 pursuant to the auction Notification through e-procurement dated 06.12.2023 at Annexure-D issued by the 3rd respondent and thereby direct the 3rd respondent to conduct the re-tender through e-tender procurement to dispose of the shop premises belonging to the 3rd respondent situated in Belur Town; and

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(b) Grant such other relief/reliefs as this Hon'ble Court deems fit in the facts and circumstances of the case."

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Heard Sri. Saravana S., learned counsel appearing

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for the petitioner in W.P.No.6296/2024, Sri. Ramesh K.R., learned counsel appearing for the petitioners in W.P.No.1200/2024, Sri. K. S. Harish, learned counsel appearing for respondent Nos.1 and 2 in both the cases, Sri. A. Nagarajappa, learned counsel appearing for respondent

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No.3 in both the cases and have perused the materials on record.

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The petitioners are the licensees of the shops coming under the precincts of respondent No.3. They are now sought to be evicted without following due process of law, by issuing a impugned Tender Notification. The challenge to the tender notification need not detain this Court for long or delve deep into the matter. This Court, in identical circumstances in W.P.No.4750 of 2024 decided in 28-02-2024 has held as follows:

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“9. …..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:

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“…. …. ….

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18. Having heard learned counsel for the parties, the points that would arise for consideration are:

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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?

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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?

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3. What order?

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19. I answer the above points as under:-

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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?

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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.

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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

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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.

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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.

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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.

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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

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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.

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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.

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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.

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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.”

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(Emphasis supplied)

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The co-ordinate Bench holds that the licensees or lessees of shops cannot be evicted unilaterally. The procedure

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stipulated in terms of the Act or the Transfer of Property Act will have to be necessarily followed. Another coordinate Bench of this Court in K.MANJUNATH v. BANGALORE DEVELOPMENT AUTHORITY¹ 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:

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“….

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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.

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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

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1 W.P.No.25075 of 2016 decided on 30-01-2019

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case of nemo dat quod non habet; that being so the petitioner is liable to be non suited.

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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).

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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.

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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.

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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:

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“10. The second aspect is this. It is part of the concept of “Rule of Law” that no claim to a right to

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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.”

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10. The Apex Court in the aforesaid Meghmala’s case, at paragraph Nos.46 to 48 has observed as under:

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“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

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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.

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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”

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(only such portion of the paragraphs as are relevant to the fact matrix of the case are quoted, others being left out)

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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.

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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.”

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(Emphasis supplied)

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In the light of the issue standing answered by the aforesaid judgments, the petition deserves to succeed as the circular issued by the 1^st respondent dated 19-072019 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.

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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.

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In the light of the judgment rendered by this Court

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following the Co-ordinate Bench decisions quoted in the course of the order supra, I deem it appropriate to dispose these petitions by granting the very same relief.

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For the aforesaid reasons, the following:

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O R D E R

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(i) The writ petitions are allowed in part.

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(ii) Tender notifications dated 21.12.2023 and the auction notification later issued dated 06.12.2023 stands quashed.

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(iii) A direction is issued to the Town Municipal Council, Beluru 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.

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All contentions shall remain open.

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Sd/JUDGE

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SJK List No.: 1 Sl No.: 24

Sri D Rajshekar v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri D Rajshekar v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

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