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1996 DIGILAW 496 (KAR)

B. SHARMA RAO, H. GANESHMAL, MYSORE v. HEADQUARTERS ASSISTANT, THE DEPUTYCOMMISSIONER OFFICE, MYSORE

1996-08-22

H.N.TILHARI

body1996
H. N. TILHARI, J. ( 1 ) AS these review petitions arise from the common judgment, given in three miscellaneous second appeals mentioned at the top of second appeal judgment, these review applications are disposed of by one common order. ( 2 ) THESE two review applications for review under Order 47, Rule 1 of the Code of Civil Procedure, arise from my Judgment dated 6th June, 1996, whereby this Court allowed the three appeals filed by the opposite parties and set aside the first appellate Court's order of remand. ( 3 ) THE plaintiffs-applicants filed a suit for declaration that the plaintiffs-appellants are the tenants in occupation of the premises in question which admittedly belonged to the government and had been let out by the Executive Engineer of the P. W. D. , Department under an agreement. The plaintiffs in the suit for declaratory decree alleged that their tenancy has not been terminated and they continue to be tenants under Section 116 of the Transfer of Property Act and so sought declaration that they are not in unauthorised occupation of the premises and that provisions of Karnataka Public Premises (Eviction of unauthorised Occupants) Act, 1974 were not applicable to the plaintiffs, as plaintiffs were not in unauthorised occupation and so they sought a decree for injunction, restraining the opposite parties-defendants from initiating proceedings against the plaintiffs-applicants under Sections 4 and 5 of Karnataka Public premises (Eviction of Unauthorised Occupants) Act, 1974. The trial Court decided Issue No. 1, as referred to at page 6 of the judgment of this Court, as preliminary issue and after having taken to consideration the provisions of Sections 11 and 16 of the karnataka Public Premises (Eviction of Unauthorised occupants) Act, held that the jurisdiction of the Civil Court has been barred in respect of matters of eviction proceedings against person who is in unauthorised occupation of the public premises and so the suit was not maintainable under Section 9 of the Act. ( 4 ) HAVING felt aggrieved from the Trial Court's judgment, dismissing the suit as not maintainable as being barred by sections 11 and 16 of the Act, the present applicants filed first appeal. ( 4 ) HAVING felt aggrieved from the Trial Court's judgment, dismissing the suit as not maintainable as being barred by sections 11 and 16 of the Act, the present applicants filed first appeal. The learned Civil Judge opined that the present plaintiffs-applicants cannot be deemed to be in the unauthorised occupation, because when they were tenants, they were tenants of holding over even after the expiry of the period of tenancy and was required to be terminated. Having decided the matter as if on merits, set aside the Trial Court's order and remanded the same for fresh trial. ( 5 ) THE second appeal was filed from that order before this Court. The question of maintainability of that suit has even been agitated in the second appeal filed by the Government. I having considered Sections 11 and 16 of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974, along with the preamble of the other provisions of the Act, opined, Karnataka act, applies to the entire State of Karnataka over and in respect of public premises with reference to the matters of eviction of unauthorised occupants and if there is a person who is in unauthorised occupation, the remedy that has been provided is one contained in Sections 3, 4 and 5 of the Karnataka Act of 1974. I had expressed this opinion in the judgment that once the building is found or admits that it is a public premises within the framework of the definition given in the Act, the proceedings for eviction of unauthorised possession will lie before the competent Authority by initiation of proceedings under Section 4. Firstly at the initial stage, the authority may have to form the prima facie tentative opinion that public premises is in unauthorised occupation of some one and such unauthorised occupant should be evicted, then the notice has to be issued. The authority concerned after issuing of the notice, it has to consider and satisfy itself after hearing the parties that the person concerned is in unauthorised occupation of the premises or not. If he is not in unauthorised occupation of "the property i. e. , public premises, in the opinion of the Competent Officer, then order of eviction may not be passed. If he is not in unauthorised occupation of "the property i. e. , public premises, in the opinion of the Competent Officer, then order of eviction may not be passed. Whether a person is in unauthorised occupation or not is the question to be decided by the Competent authority, which has been given jurisdiction to decide it, but only in those cases in which the building in question is a public premises. I had also expressed the opinion in the judgment that sine qua non for application of the Act is that the building in question is a public premises, if yes, then whether a person is in unauthorised occupation or not in those proceedings, the competent Authority has been given power to decide it. I had also expressed the opinion in the judgment that when an Act confers power and specifies the authorities by whom the question of fact such as question of unauthorised occupation of the occupant is to be determined with reference to any proceedings to be taken under the Act, then the power has got to be exercised by only those authorities and none. With reference to proceedings to be taken for initiation of proceedings for eviction and for passing the final orders under the Karnataka public Premises (Eviction of Unauthorised Occupants) Act, 1974, the scheme of the special law reveals that such a question with reference to the proceedings has to be decided by the authorities specified therein. I had taken the view that in respect of or in relation to the proceedings for eviction, the material question to be decided is firstly whether the building in dispute is a government Building or Public premises and the second question is when it is found that the building is a public premises the other question is whether the person concerned, for whose eviction proceedings has to be taken, whether is an unauthorised occupant. If finally the authorities find that he is in unauthorised occupation and if the authorities are satisfied that the person concerned is in unauthorised occupation of the premises, the order of eviction has to be passed. This act is required to be done by the authority specified in the Act. If finally the authorities find that he is in unauthorised occupation and if the authorities are satisfied that the person concerned is in unauthorised occupation of the premises, the order of eviction has to be passed. This act is required to be done by the authority specified in the Act. I had taken the view that as such, as per language of Sections 11 and 16 of Karnataka Act, if the premises in question is a public premises and when the question of unauthorised occupation of a person is to be determined by specific authority, there being a special law and there being special instrumentality provided and there being provisions in the nature of Sections 11 and 16, the civil Court will have no jurisdiction to decide that question whether the possession and occupation of persons like plaintiffs-applicants in the premises in question, which admittedly is a public premises is authorised one or unauthorised one and such question in this context could not be decided by the Civil Court, particularly when injunction was sought for restraining the authorities from initiating legal proceedings for their eviction under Sections 4 and 5 of the karnataka Act. I have expressed the view that when the question of applicability of the Act so far is concerned, as it was very clear from the admission of the party himself that the premises in question was a public premises, the Act became applicable to the party. The question as to whether the plaintiff applicant was in unauthorised or authorised occupation and whether he should be evicted or not, the opinion tentative and final has to be taken by the Competent Authority, in accordance with the requirements of Sections 4 and 5 and therefore, when a specific procedure has been prescribed, it has to be followed in such matters, no suit for injunction would be maintainable in view of the language of Sections 11 and 16 of the Act, which I have quoted at inner page 18 of the judgment and the latter part of Section 11 has been underlined which provides "that no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act". The law clearly bars the jurisdiction of this Court to entertain suit for injunction and provides that no injunction shall be granted in respect of action to be taken by the Authority under the Act and in pursuance of the powers conferred under the Act which includes Sections 4 and 5 of the Act. Section 16 provides that Civil Court will have no jurisdiction to entertain any suit in respect of eviction of a person in unauthorised occupation of the public premises. On these grounds thus considering the matter, the appeal had been allowed and order of remand had been set aside. ( 6 ) FEELING aggrieved from my judgment, review applications have been filed. Application for review is not an appeal in disguise. The scope of review is very limited and it is only in case of error apparent on the face of record it may be entertained. Learned Counsel for the applicants relied on the decision on public Premises (Eviction of Unauthorised Occupants) Act, 1971, with reference to Section 10 of the Act. Learned Counsel for the applicants submitted before me that the suit for declaration was maintainable on the basis of the decision of the Supreme Court in the case of Life Insurance Corporation of India v Shiva Prasad tripathi and Others, which is on a Central Act and not on the karnataka Act. Learned Counsel for the applicants submitted that Section 10 of Central Act is similar to Section 11 of the karnataka Act. In this case not only Section 11 of the Karnataka act has been considered but along with it question of bar of jurisdiction of Civil Court created under Section 16 has also been considered and in this connection the scope of expression 'in respect of eviction' has been considered and then this Court has taken the view that Civil Suit in question was not maintainable. That the decision of their Lordships of the Supreme Court in the case of Life Insurance Corporation of India, supra, appears to have been given in the context of Section 10 of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 only and not on section 15 of that Act, which is at par with Section 16 of karnataka Act of 1974. In one respect this decision appears to support the view taken by me that Section 11 provides that no decree or order of injunction can be granted i. e. , Civil Court has no jurisdiction to grant decree or order of injunction in respect of actions proposed to be taken by the authorities under the Act. That Section 15 of the Central Act of 1971, which is analogous to section 16 of Karnataka Act of 1974 which bars the jurisdiction of Civil Court to entertain any suit in respect of or in relation to eviction of unauthorised occupants from public premises had not been subject-matter of consideration before the Hon'ble Supreme court nor attention of their Lordships was invited to the provisions of Section 15 of that Act and as the law that has been declared has been declared under Section 10 of the Central Act, nor with reference to Section 15 or 16 of the Central Act, which are analogous to Section 16 or 17 of the Karnataka Act. Thus considered the decision relied by the learned Counsel for applicants is distinguishable and is not applicable to the present case with reference to the interpretation of Section 11 read with sections 16 and 17 of the Karnataka Act. That no other case has been shown or referred by the learned Counsel for the applicants in support of his contention that Civil Court had jurisdiction to entertain the suit. Even if for a moment there can be two opinions one taken by the first Appellate Court as well as contended by learned Counsel for the applicants and the other taken by this Court in the light of the provisions of Sections 11, 16 and 17 of the Karnataka Act. That cannot be a ground for review. Merely because two opinions are possible a review petition cannot be maintained. ( 7 ) IN the case of Life Insurance Corporation of India, supra, relied by learned Counsel for the applicants, Section 15 of the central Act, 1971, had not been brought to the notice of their lordships, which says that no Court shall entertain any suit or proceedings in respect of eviction. So this aspect of the matter had not been subject matter of consideration before their lordships. So this case does not apply to the petitioners case and is not of any help. So this aspect of the matter had not been subject matter of consideration before their lordships. So this case does not apply to the petitioners case and is not of any help. In such a case it is open to the applicants to file an appeal, if any appeal is permissible under law either under the Karnataka High Court Act or under Article 136 of the constitution and in that case he may pursuade the Higher Court or the Higher Bench to accept his view, but that cannot be said to be error apparent on the face of record on the yardstick laid down by their Lordships of the Supreme Court in the case of mis. Thungabhadra Industries Limited v Government of Andhra pradesh, represented by the Deputy Commissioner of Commercial taxes, Anantapur, wherein their Lordships have laid down "a review by no means an appeal in disguise, whereby an erroneous decision is reheard and corrected, it lies 'only in patent error. We do not consider that this furnishes a suitable occasion or action for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate arguments one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out". ( 8 ) IT means if there can be two possible opinions regarding interpretation of the provisions of the Act, such as the provisions of Sections 11, 16 and 17 of the Karnataka Act, 1974, then this cannot be said to be a case for review, may it be a good case for applicants to go in appeal. ( 9 ) WITH these observations, the Review Application Nos. 555 and 556 of 1996 are hereby dismissed as misconceived and not maintainable. --- *** --- .