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2011 DIGILAW 310 (KAR)

B. Balachandran v. Tahsildar

2011-03-16

B.S.PATIL

body2011
Judgment 1. In this petition, petitioner is challenging the order dated 05.02.11 passed by the I Addl.District Judge, D.K. Mangalore, dismissing M.A.NOS.8/10 filed by the petitioner under Section 10 of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974 (‘the Act’ for short). The appeal was filed challenging the order passed by the Tahsildar-Belthangady directing eviction of the petitioner herein from the property bearing Sy.Nos. 173-7A3A1A1P5 measuring 0.14 acre and Sy.No. 173-6D1P1 measuring 0.36 acre situated at Belthangady village & taluk vide order dated 04.10.2010 produced at Annexure-B. 2. The 1st respondent-Tahsildar recorded a finding that the property in question conformed to the definition of ‘public premises’ under the Act and the petitioner was in unauthorized occupation of the same and therefore liable to be evicted. Aggrieved by this order, the petitioner preferred an appeal before the District Judge. The petitioner contended that the Tahsildar was not the competent officer to initiate the eviction proceedings under the Act. Several other contentions were also raised. The learned District Judge referring to Rule 9 of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Rules, 1980 has held that the Tahsildar in charge of the concerned Muzarai or Religious Charitable Institution is the competent officer for the purpose of the Act and therefore, the order passed by him did not suffer from any illegality or error of jurisdiction. Accordingly, the learned District Judge has dismissed the appeal. Aggrieved by these two orders, the present petition is filed. 3. I have heard the learned Counsel for the petitioner, the learned AGA and the learned Counsel appearing for respondent No.2. 4. The question that falls for consideration is ‘whether the Tahsildar was competent to initiate proceedings under Section 5(1) of the Act’. Section 4 of the Act provides for issue of notice to show cause against eviction. It enables the competent officer, if he is of the opinion that any persons are in unauthorized occupation of the public premises and that they should be evicted, to issue notice in writing calling upon all persons concerned to show cause why an order of eviction shall not be made. Section 5 of the Act provides of eviction of unauthorized occupants. Section 5 of the Act provides of eviction of unauthorized occupants. It states that after considering the cause shown by the persons, and the evidence if any produced and after giving reasonable opportunity of being heard, if the competent officer is satisfied that the public premises is in unauthorized occupation, he can pass an order of eviction for reasons to be recorded directing eviction from the premises. 5. Therefore, it becomes necessary to know who is the competent officer as defined under Section 2(a) of the Act, as it is contended that it was the Asst. Commissioner who was the competent authority and not the Tahsildar who has passed the order. Section 2(a) defines the term competent officer as follows:- “competent officer” means an officer appointed as such by the State Government under Section 3. Section 3 provides for ‘appointment of competent officers’. It reads as follows:- The State Government may, by notification, (a) Appoint:- (i) in respect of its premises such officers, not below the rank of a [Group B] officer of the State Civil Services; (ii) xxxxxx (iii) xxxxxx (iv) in respect of any other premises, an officer of the State Civil Services or of any other authority? as it thinks fit to be competent officers for the purpose of this Act; and (b) define the local limits within which or the categories of the public premises in respect of which the competent officers shall exercise the powers conferred and perform the duties imposed, on competent officers by or under this Act. 6. It is thus clear that the State Government is empowered under Section 3 to issue a notification appointing the ‘competent officer’ in respect of the public premises for the purpose of the Act and defining the local limits of their jurisdiction and also the categories of the public premises in respect whereof they are the competent officers. 7. In the instant case it is submitted by the learned AGA that in exercise of the powers conferred under Section 3 of the Act, the State Government has issued a notification dated 29.12.1984 notifying the designation of the officer as “competent officer” for the purpose of Section 3 of the Act and also showing the local limits of their jurisdiction. In the instant case it is submitted by the learned AGA that in exercise of the powers conferred under Section 3 of the Act, the State Government has issued a notification dated 29.12.1984 notifying the designation of the officer as “competent officer” for the purpose of Section 3 of the Act and also showing the local limits of their jurisdiction. A copy of this notification is placed before the Court at the time of arguments, inviting the attention of the Court to Sl.No.35 of the said notification, it is contented by him that the Assistant Commissioner, Puttur Sub-Divsiion, Puttur is the Competent officer appointed for the local limits of Puttur Revenue Sub-Division and the properties in question being situated within the revenue Sub-Division of Puttur, it is the Assistant Commissioner, Puttur Sub-Division, Puttur who is the competent officer for the purpose of Section 4 & 5 of the Act and not the Tahsildar. In fact, learned Counsel for the petitioner also supports this contention of the learned AGA and submits that it is the Assistant Commissioner, Puttur Sub-Division, Puttur who is the competent officer as per the notification issued in exercise of the powers under Section 3 of the Act and not the Tahsildar. 8. A reading of Sections 2(a), 3, 4 & 5 and Section 13 of the Act along with Rule 9 of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Rules, 1980 (“the Rules” for short) makes it clear that the contention urged by the learned AGA is right and justified. The learned District Judge has erred in holding that as per Rule 9 of the Rules, the competent officer for the purpose of Sections 4 & 5 was the Tahsildar in charge of the concerned Muzarai or Religious/Charitable Institutions. 9. Rule 9 of the Rules refers to the prescribed officer under Section 13. While referring to such prescribed officer, it has made a mention of the Tahsildar in charge of the concerned Muzarai or Religious/Charitable Institution as the competent officer for the purpose of the said Section. 10. Section 13 deals with ‘power to obtain information’. It reads as under:- “13. While referring to such prescribed officer, it has made a mention of the Tahsildar in charge of the concerned Muzarai or Religious/Charitable Institution as the competent officer for the purpose of the said Section. 10. Section 13 deals with ‘power to obtain information’. It reads as under:- “13. If the prescribed officer has reason to believe that any person or persons are in unauthorized occupation of any public premises, he or any other officer authorised by him in this behalf may require those persons or any other person to furnish information relating to the names and other particulars of the persons in occupation of the public premises and every person so required shall be bound to furnish the information in this possession”. 11. It is thus clear from Section 13 that the power vested with the prescribed officer is to require those persons who are in unauthorized occupation of public premises to furnish information relating to the names and other particulars of the persons in occupation of the public premises. In fact, Section 13 enable the said officer to authorise any other officer on his behalf to issue such notice requiring to furnish all such information by the persons in unauthorized occupation of the public premises. Thus, it can be seen that for the purpose of Sections 4 & 5 of the Act Rule 9 has no application. The learned District Judge misdirected himself in holding that the Tahsildar was the competent authority in terms of Rule 9 of the Rules. It is the Asst. Commissioner concerned who is the competent officer as per the notification issued in exercise of the powers under Section 3 of the Act who could have held the enquiry. On this ground alone, the petitioner is entitled to succeed. 12. Therefore, the writ petition is allowed and the impugned orders at Annexures A and B are set aside. It is made clear that the concerned Assistant Commissioner ie., the Assistant Commissioner, Puttur Sub-Division, Puttur is at liberty to initiate appropriate proceedings under Sections 4 & 5 of the Act in accordance with law. All other contentions are left open.