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2019 DIGILAW 1706 (KAR)

Rajesab v. Hon’ble Minister of Agriculture Market State of Karnataka

2019-07-16

ARAVIND KUMAR, BELLUNKE A.S.

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JUDGMENT : Aravind Kumar, J. Since common question of facts and law would arise in these intra-court appeals for consideration, they are taken up together for consideration and are being disposed of by this common judgment. 2. Petitioners and/or their predecessors in interest were allotted shops at Agricultural Produce Marketing Committee, Savanur (hereinafter referred to as 'APMC', for short) way back in the year 2007 and they have continued in said shops premises even after completion of leave and license period. At this juncture, it would be apt and appropriate to notice that on completion of lease-cum-license period, APMC initiated proceedings under Section 4 of the Karnataka Public Premises (Eviction of Unauthorized Occupants) Act, 1974 (for short, 'Act') which resulted in order of eviction being passed and same having been affirmed by learned District Judge in respective appeals filed by petitioners has also been challenged in the writ petitions. It would also necessary to notice that on completion of lease-cum- license period, APMC intended to allot shops by auction and as such initiated proceedings for conducting auction and on said proceedings having been undertaken by APMC, petitioners were successful bidders. However, proposal forwarded by APMC and approval by Additional Director, Agricultural Marketing Department, Government of Karnataka was rejected by intimating APMC that process of auction conducted was not in accordance with law and extant regulations. This order/endorsement/communication was not challenged by petitioners for a period of almost three years and appeal was filed before Minister for Horticulture and Agriculture cum appellate authority which came to be examined by said authority and appeal came to be dismissed. Pursuant to same, APMC sought to enforce order of eviction against the petitioners which were also called in question in said writ petitions. 3. Learned Single Judge by order under appeal was of the view that prayer sought for by the petitioners cannot be granted. However, was inclined to extend time to quit and handover vacant possession of their respective shops on or before 30.03.2019 and as such has directed the petitioners to file their individual affidavits undertaking to handover possession on or before 30.03.2019. Accordingly, petitioners filed their affidavit undertaking and writ petitions came to be disposed of by directing them to quit and hand over their respective shops on or before 30.03.2019 to 3rd respondent-APMC. Accordingly, petitioners filed their affidavit undertaking and writ petitions came to be disposed of by directing them to quit and hand over their respective shops on or before 30.03.2019 to 3rd respondent-APMC. Petitioners were also directed to pay all the dues including the rents and other levies which were required to be paid by them to 3rd respondent, till date of vacating and handing over possession of their shops to 3rd respondent-APMC and liberty was also granted to APMC to proceed with auction proceedings and petitioners were also held to be eligible to participate in said auction proceedings. 4. It is this order which has been assailed in WA Nos.100211-212/2019, 100213-218/2019 and 100239/2019. WA No.100220-224/2019 and 100408/2019 have been filed by the appellants who were writ petitioners 5, 1A, 3, 8, 9 and 10 in WP No.103381-3391/2017 assailing the order dated 26.03.2019 passed in WP No.107235-107239/2019 and WP No.107302/2019 which petitions had been filed challenging notices dated 8.3.2019 vide Annexures-D, D1 to D5 issued by 4th respondent calling upon petitioners to vacate shops premises in their occupation. It is the contention of petitioners, their representations dated 11.02.2019 vide Annexures-B, B1 to B5 submitted to 2nd respondent ought to have been considered regardless of their undertaking submitted by them pursuant to order passed on 17.12.2018 in WP No.103381-91/2019. Said writ petitions have been dismissed on the ground that consideration of said representation could happen only after petitioners complying the undertaken given by them to vacate the premises and deliver back peaceful possession thereof to the answering respondents. 5. As noticed by learned Single Judge in the above writ petitions, litigation in question has had a chequered history commencing from 2007. Petitioners were fully well aware that shops allotted to them in auction they would not get any absolute right to seek renewal of the lease that too by relying upon Rule 8 of the Karnataka Agricultural Produce Marketing (Regulation of Allotment of Property in Market Yards) Rules, 2004, in view of Rule 9B and yet they have sought for renewal of license/leave. For immediate reference, Rule 9B is extracted: 9-B. Allotment of Sites/Buildings through public auction.- Notwithstanding anything contained in these rules, the State Government may at any time by a general or special order direct the market committee to allot sites, shops, godowns, shop-cum-godowns, buildings on leave and license basis or on lease-cum-sale basis to any licensed market functionary through tender-cum-public auction subject to such terms and conditions as may be specified. 6. A plain reading of Rule 9B would disclose that, it starts with expression "notwithstanding anything contained in these rules" which is a non-obstarte clause and as such, Rule 8 even if gives any rights to petitioners to seek for renewal of license it would get subsumed by Rule 9B. As such shops, godowns, shop-cum-godowns, buildings belonging to APMC if any is to be allotted it shall be only through public auction. Shops, godowns etc being property of instrumentality of State and whenever largesse of the State is to be distributed amongst public, there should be transparency in such process and can be achieved only by conducting public auction. This being the spirit and object behind Rule 9B, this Court would refrain from issuing a writ of mandamus to the State or its instrumentalities to act contrary to extract rules/regulations. If such directions are issued it would the defeat very purpose and object of Rule 9B and it would truncate the purport for which it has been brought in. Conducting of public auction for allotment of shops, godowns etc. being the most transparent process, it would not only achieve the object of Rule 9B but it would also be the best method. Hence, this Court would refrain from issuing any writ to the authorities to act contrary to the regulations or rules. In that view of the matter, we do not find any infirmity in the process undertaken by APMC in conducting auction of shops in question which is in occupation of petitioners. 7. Now turning our attention on issue regarding eviction of petitioners is concerned, it would detain this Court for long to brush aside contention raised by Sri. Mahesh Wodeyar which was also raised before learned Single Judge and reiterated before us. 7. Now turning our attention on issue regarding eviction of petitioners is concerned, it would detain this Court for long to brush aside contention raised by Sri. Mahesh Wodeyar which was also raised before learned Single Judge and reiterated before us. In the instant case, petitioners as already noticed herein above having taken recourse to challenge subject auction of APMC shops either by approaching authorities or approaching writ court had stalled the proceedings of conducting auction for all these years (12 years) in spite of having faced proceedings under the provision of Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974 and had suffered an order of eviction which has not only been affirmed by the appellate authority i.e. jurisdictional District Judge but has also attained finality when said orders of eviction came to be challenged before learned Single Judge as noticed herein above. 8. Petitioners being conscious of the fact that they would not get any relief of extension, as a last hope have grabbed the opportunity before learned Single Judge by seeking time to vacate the shops in their occupation. In this background, learned Single Judge has agreed to grant extension of time which seems to be on the ground of sympathy and has directed them to file individual affidavits of undertaking to quit, vacate and handover vacant possession of the shops premises to APMC. Accordingly, their affidavits came to be filed and based on which, writ petitions came to be disposed by granting time to all petitioners to quit, vacate and handover vacant possession of the shops in their occupation on or before 30.03.2019. 9. However, petitioners not being satisfied with said extension granted have pursued their grievance in these intra-court appeals contending inter-alia notwithstanding their undertaking given to Court their right to challenge would not get scuttled, though we may agree as a principle of law but in the facts obtained, we refrain ourselves by extending any further time to petitioners to quit, vacate and handover vacant possession of shops premises in their occupation. However, we cannot be oblivious to the fact that petitioners being occupants of the shops in question from the year 2007 till date. However, we cannot be oblivious to the fact that petitioners being occupants of the shops in question from the year 2007 till date. Hence, we make it very clear that in the event of auction being conducted for allotting said shops to bidders and petitioners would be at liberty to participate in said auction proceedings and if they are successful in said auction, same shall be allotted to them by APMC which would of course be subject to condition that only in the event of all petitioners quitting, vacating and handing over vacant possession of their respective shops to APMC forthwith, failing which APMC would be at liberty to take steps in accordance with law to take possession of said shops pursuant to eviction order already passed. 10. Hence, we proceed to pass the following: ORDER (a). Writ appeals stand dismissed subject to observations made hereinabove. (b). Orders passed in WP Nos.103381- 103391/2017 dated 17.12.2018 and order dated 26.03.2019 passed in WP No.107235- 7239/2019 and WP No.107302/2019 are hereby affirmed. (c). However, we reiterate the observations made hereinabove that in the event of shops in question being auctioned by 3rd respondent-APMC and petitioners being successful bidders of the shops in which they are in occupation to them and same shall be allotted to them and if it happens to be shops in which petitioners are carrying business. (d). All pending applications are consigned records.