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2022 DIGILAW 155 (KAR)

Srikarana v. Administrative Officer

2022-02-07

B.M.SHYAM PRASAD

body2022
JUDGMENT 1. The petitioners, who are in possession of certain shops within the precincts of Sri.Doddabasaveswaraswamy Temple, Kurugodu, Ballari District, have impugned the Competent Officer's order under Sec. 5 of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974 (for short, 'the Act') and the confirmation thereof in the appeals filed in M.A. Nos.9- 16/2014 on the file of the II Additional District Judge, Ballari (for short, 'the Appellate Court'). 2. The Competent Officer, the second respondent, by a common order dtd. 6/8/2014 has found that each of the petitioners is an unauthorised occupant of the respective premises and therefore, has directed them to hand over vacant possession such premises. The Appellate Court, while observing that the lease of respective premises is admitted by the petitioners and there is compliance insofar as the procedure with the relevant provisions of the Act, has affirmed the second respondent's order concluding that the petitioners cannot complain of lack of opportunity. 3. The relevant facts are that the first respondent, the Administrative Officer of a notified institution, has permitted the petitioners to occupy certain open spaces under unregistered deeds granting them permission to put up construction and use such constructed premises on terms. The terms stipulated include a cap on the expenses to be incurred in such construction and the rent free tenure for which the petitioners are permitted to occupy. The petitioners contend that after the initial agreed rent free tenure, each of the petitioners have paid the agreed rent until the first respondent, for obvious reason, refused to receive the rents, and the first respondent asserts that the petitioners have not paid the rents deliberately. In fact, the State has placed on record certain details to substantiate the first respondent's case that some of the petitioners have paid rent until 2012 and not thereafter. 4. Sri. Harsh Desai, the learned counsel for the petitioners submits that the Competent Officer after listing undisputed facts such as the first respondent being a notified institution, has proceeded to conclude that the petitioners are unauthorised occupants without considering each of the petitioners' specific defense. The Competent Officer has conducted the proceedings in a manner that demonstrates complete lack of opportunity that is contemplated under Sec. 5 of the Act. 5. Sri. The Competent Officer has conducted the proceedings in a manner that demonstrates complete lack of opportunity that is contemplated under Sec. 5 of the Act. 5. Sri. Harsh Desai emphasizes that the Appellate Court has overlooked these very material circumstances and he also emphasizes that the notice is not as required under Sec. 4 of the Act, nor the impugned order is in the prescribed form under the Karnataka Public Premises (Eviction of Unauthorised Occupants) Rules, 1980. He draw this Court's attention to the fact that while notice issued refers to certain schedules, the Competent Officer's impugned order does not even have a schedule and the prescribed form mandates that schedule must be mentioned. He submits that this also demonstrates lack of application of mind. 6. Sri. Shivaprabhu Hiremath, the learned Additional Government Advocate, supported by Smt. Suma Yalgur, the learned counsel for the first respondent, submits with reference to the Competent Officer's impugned order that the Competent Officer has elaborately referred to the opportunity extended to the petitioners; the petitioners cannot dispute that their counsel has appeared and filed statement of objections. Sri. Shivaprabhu Hiremath also canvasses that the petitioners cannot deny that they have not paid agreed rents, and therefore, there cannot be any doubt about the petitioners being unauthorised occupants; as such, the impugned orders are in accordance with law. In fact, both Sri. Shivaprabhu Hiremath and Smt. Suma Yalgur place reliance on a copy of the agreement of lease executed by one of the petitioners to buttress their submissions. 7. The question for consideration is: whether this Court can opine that the Competent Officer in concluding that the petitioners are unauthorised occupants and liable for eviction under Sec. 5 of the Act, has permitted the petitioners to produce evidence and thereafter a reasonable opportunity of hearing as contemplated under Sec. 5 of the Act, and if the competent authority has not extended such opportunity, has the Appellate Court erred in overlooking the same. 8. In the present case, the petitioners were admittedly granted leave to occupy open spaces and construct thereon subject to a certain financial cap and the right to occupy such constructed premises for certain tenure without paying rents because of the expenses incurred in putting up such construction. 8. In the present case, the petitioners were admittedly granted leave to occupy open spaces and construct thereon subject to a certain financial cap and the right to occupy such constructed premises for certain tenure without paying rents because of the expenses incurred in putting up such construction. The petitioners were permitted to continue beyond the initial agreed period but on revisited terms inasmuch as that the petitioners, who were not required to pay any rent because of the expenses incurred by them in putting up construction, were called upon to pay certain mutually accepted amount, and the petitioners, admittedly, have also tendered certain amounts accordingly for a period. The petitioners contend that the first respondent, for reasons, did not receive the agreed amount after a certain period. The circumstances in which the agreement is concluded to continue the leases, after the initial period and the terms of such agreement have not been considered by the competent officer with due opportunity to the petitioners. If the initial period of lease had expired and they were permitted to continue subject to payment of rent, the circumstances under which such subsequent agreement has come about and the details of such agreement had to be examined before accepting the first respondent's case that the petitioners were unauthorised occupants. 9. The provision of Sec. 5 of the Act reads as under: "5. Eviction of unauthorised occupants.- (1) If, after considering the cause, if any, shown by any person in pursuance of a notice under sec. 4 and any evidence he may produce in support of the same and after giving him a reasonable opportunity of being heard, the competent officer is satisfied that the public premises are in unauthorised occupation, the Competent Officer may on a date to be fixed for the purpose, make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises. (2) If any person refuses or fails to comply with the order of eviction within forty-five days from the date of affixture of the order under subsection (1), the competent officer or any other officer duly authorised by the competent officer in this behalf may evict that person from, and take possession of, the public premises and may, for that purpose, use such force as may be necessary." The provision stipulates that there must be a reasonable opportunity to lead evidence and a reasonable opportunity of being heard before an order is made by the Competent Officer under Sec. 5 of the Act for eviction. It is obvious from the records that this opportunity is not extended to the petitioners to place on record the circumstances to vindicate their case that they are not unauthorized occupants, and neither the Competent Officer has examined these vital aspects. The proceedings before the Competent Officer is therefore vitiated, and as such, the Competent Officer's order cannot be sustained, and the Appellate Court, which has opined that there is due compliance of provisions of Sec. 5 of the Act, has not considered these aspects. Therefore, the question framed must be answered in favour of the petitioner and is answered accordingly. Consequently, the petitioners succeed, and the impugned order dtd. 6/8/2014 [Annexure-E] passed by respondent No.2 and the order dtd. 10/7/2015 [Annexure-H] passed by the Appellate Court in M.A. Nos.9 to 16/2014 are quashed. This Court must observe that initiation of fresh proceeding under the provisions of the Act shall not be precluded.