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2013 DIGILAW 1067 (KAR)

Gregory D'SA v. Udupi City Municipal Council

2013-09-06

RAVI MALIMATH

body2013
ORDER Ravi Malimath, J.—I.A. 1/2013 has been filed by the 1st respondent seeking to vacate the stay order granted. Considering the said application would amount to hearing the petitions. Both counsels have advanced arguments on the merits of the petition. The case of the petitioners is that based on a lease executed by the 1st respondent-Municipality they are continuing in the premises in question. On the basis that the building is an old one and in a dilapidated condition Annexure-A came to be issued, wherein the extension of lease sought for by the petitioners was declined. The basis on which Annexure-A was passed was a resolution vide Annexure-B and hence, both these are sought to be quashed. 2. Learned counsel for petitioners contends that the building is extremely strong and built of granite. It is nowhere close to being in a dilapidated condition and that it would stay strong for a long time to come. Therefore, the reason assigned is inappropriate. In support of his case, he has, relied upon the unreported judgment of this Court in W.P. No. 7421/2009 and connected matters disposed on 17.4.2009 to the effect that since no reasons are assigned before taking any action, the impugned order cannot be sustained. Reliance is also placed on the judgment reported in C.M. Beena and Another Vs. P.N. Ramachandra Rao, AIR 2004 SC 2103 , to contend the difference between lease and rent and that what he is paying lease and not rent. Hence, he pleads that the impugned orders are liable to be quashed. 3. On the other hand, Sri T.I. Abdulla, learned counsel appearing for the 1st respondent contends that in law there is no lease subsisting in favour of the petitioners. The lease has expired on 31.3.2013. Further, Annexure-A is an appealable order in terms of Section 343(2) of the Karnataka Municipalities Act. Therefore, in the existence of an alternative and efficacious remedy, no relief could be granted to the petitioners. 4. Heard the learned counsels. 5. Section 343 of the Karnataka Municipalities Act, 1964 provides for an appeal in respect of any order or anything done by a Municipal Commissioner, which is not appealable to the Municipal Council under sub-Section (1), wherein such appeal would lie to an officer as the State Government may by rules specify. 4. Heard the learned counsels. 5. Section 343 of the Karnataka Municipalities Act, 1964 provides for an appeal in respect of any order or anything done by a Municipal Commissioner, which is not appealable to the Municipal Council under sub-Section (1), wherein such appeal would lie to an officer as the State Government may by rules specify. Therefore, it postulates that an appeal in terms of sub-section (1) would lie to the Municipal Council with reference to the orders mentioned therein and with reference to orders not stated in sub-Section (1), an appeal shall lie to the said Officer as the rules may prescribe. Therefore, the order is appealable. 6. However, learned counsel for the petitioners while admitting that there is an alternative remedy, pleads that it is not an efficacious remedy. 7. I' am unable to accept the said contention. The contentions urged by the learned counsel on whether it is a lease or rent; whether reasons have been assigned or not and such other matters which according to him are covered by the two judgments referred to supra, can very well be agitated in the appeal. Therefore, it cannot be said that the provision of an appeal is not an efficacious remedy in the facts and circumstances of the case. 8. In view of the availability of an alternative and efficacious remedy, the writ petitions are dismissed. Petitioners' counsel seeks that he may be granted four weeks time to file an appeal. His request is accepted. In the circumstances, the interim order granted by this Court stands extended for a period of four weeks from today.