Dismissed

Sri. Vinayaka Housing Co-Operative v. the Commissioner

Karnataka HC6 Aug 2024WP/64693/2016

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a writ petition seeking to quash eviction proceedings initiated under the Karnataka Public Premises (Eviction of Unauthorized Occupants) Act, 1974. The court held that since the lease had expired and the petitioner's suit for renewal was dismissed, the petitioner was an unauthorized occupant. Consequently, the eviction orders were devoid of error.

What did the court decide?

The writ petition filed under Articles 226 and 227 of the Constitution of India was dismissed.

Sri. Vinayaka Housing Co-Operative Vs the Commissioner — Property and Title | Karnataka HC (2024)

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

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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

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BETWEEN:

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SRI. VINAYAKA HOUSING CO-OPERATIVE SOCIETY LIMITED, HAVING ITS OFFICE AT NO.2, 11^TH "C" CROSS ROAD, VYALIKAVAL, BENGALURU-560 003, REPRESENTED BY ITS SECRETARY.

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…PETITIONER

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(BY SRI. MAHANTESH T S., ADVOCATE)

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AND:

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Digitally signed by R DEEPA

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Location: HIGH COURT OF KARNATAKA

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THE COMMISSIONER BANGALORE MAHANAGARA PALIKE, N.R. SQUARE, BENGALURU-560 002.

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THE DEPUTY COMMISSIONER (ADMIN) AND COMPETENT OFFICER, BANGALORE MAHANAGARA PALIKE, N.R. SQUARE, BENGALURU-560 002.

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…RESPONDENTS

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(BY SRI. H DEVENDRAPPA, ADVOCATE)

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

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

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL ORDER

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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.

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Brief facts leading rise to filing of this petition are as under:

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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 11^th '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 1^st 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.

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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.

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Heard learned counsel for petitioner and learned

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counsel for respondents.

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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.

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Per contra, learned counsel for the respondents

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

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Perused the records and considered the

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submissions made by learned counsel for the parties.

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It is not in dispute that the open space was owned by the respondents - Corporation. The respondents

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- 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

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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

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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:

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" '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."

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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 for the respondents filed a memo wherein the representation of the petitioner for renewal of lease was rejected vide endorsement dated 03.08.2024. In view of the same, I do not find any error in the impugned orders. Accordingly, I proceed to pass the following:

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

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10 -

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ORDER

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The writ petition is dismissed.

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SD/(ASHOK S. KINAGI) JUDGE

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Sri. Vinayaka Housing Co-Operative v. the Commissioner

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Sri. Vinayaka Housing Co-Operative v. the Commissioner

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