IN THE HIGH COURT OF KARNATAKA AT BANGALORE BEFORE THE HON BLE MR. JUSTICE A S BOPANNA

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1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 26 TH DAY OF FEBRUARY 2014 BEFORE THE HON BLE MR. JUSTICE A S BOPANNA WRIT PETITION No.44222/2013 (GM-PP) A/W WRIT PETITION No.37973/2013 (GM-PP) W.P.No /2013 BETWEEN: THE EXECUTIVE OFFICER, SHRI. GAVIGANGADHARESHWARSWAMY TEMPLE, GAVIPURAM BANGALORE PETITIONER (BY SRI S.G. HEGDE, ADV.) AND: 1. SHRI. D.R. HANUMANTH RAJU S/O LATE. D. RAMAIAH SHETTY AGED ABOUT 79 YEARS AT PRAKASH TRADERS NO. 65, I ST CROSS, N.T. PETE BANGALORE THE HEAD QUARTERS ASSISTANT TO THE DEPUTY COMMISSIONER AND COMPETENT AUTHORITY UNDER THE KARNATAKA PUBLIC PREMISES (EVICTION OF UNAUTHORIZED OCCUPANTS) ACT, 1974 AT BANGALORE DISTRICT BANGALORE RESPONDENTS (BY SRI N.P.KALLESH GOWDA, ADV. FOR R-1; SRI VIJAYAKUMAR.A. PATIL, HCGP FOR R-2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO

2 2 QUASH THE ORDER DATED PASSED IN M.A.NO. 61/06 ON THE FILE OF XLI ADDL. CITY CIVIL AND SESSION JUDGE (CCH-42) BANGALORE CITY VIDE ANNEXURE-P AND ETC. W.P.No /2013 BETWEEN: D.R. HANUMANTHARAJU S/O LATE. D. RAMAIAH SHETTY AGED ABOUT 81 YEARS M/S. PRAKASH TRADERS, NO. 65, I ST CROSS, N.T. PET, BANGALORE PETITIONER (BY SRI N.P.KALLESH GOWDA, ADV.) AND: 1. THE EXECUTIVE OFFICER, SHRI GAVIGANGADHARESWARASWAMY TEMPLE, GAVIPURAM BANGALORE STATE OF KARNATAKA ASSISTANT COMMISSIONER MUZARAI DEPARTMENT CITY ZONE, PHODIUM BLOCK, 3 RD FLOOR, DR. AMBEDKAR ROAD, BANGALORE RESPONDENTS (BY SRI S.G. HEGDE, ADV FOR R-1; SRI VIJAYAKUMAR.A. PATIL, HCGP FOR R-2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO DIRECT THE RESPONDENTS TO COMPLY THE ORDER DATED FOUND AT ANNX-B PASSED BY THE HEAD QUARTERS ASSISTANT TO THE DEPUTY COMMISSIONER AND COMPETENT AUTHORITY BANGALORE DISTRICT, BANGALORE AND TO EXECUTE FRESH LEASE DEED IN FAVOUR OF THE PETITIONER AS PER HIS REPRESENTATIONS DATED FOUND AT ANNX-C AND NOTICE DATED VIDE ANNX-D AND ETC.

3 3 THESE WRIT PETITIONS HAVING BEEN RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING : ORDER The petitioner in W.P.No.44222/2013 is the temple to which the property No.65, I Cross, near Tharagupet, Bangalore measuring 27ft X 30 ft belongs. The petitioner in W.P.No.37973/2013 is the occupant of the said premises. Since the subject matter is common, these petitions are taken up together and disposed of by this common order. For the sake of convenience and clarity, the parties would be referred to as temple and occupant respectively wherever the context admits. 2. The Temple is before this Court in W.P.No.44222/2013 assailing the order dated passed in M.A.No.61/2006 impugned at Annexure-P to the petition. By the said order, the Court below which is the Appellate Authority under the Karnataka Public Premises (Eviction of unauthorized Occupants) Act, 1974 (hereinafter referred to as the KPP Act ) has set aside the order passed by the Competent Authority in PPA/CR 25/ dated

4 and has remanded the matter to the Competent Authority for fresh disposal in accordance with law after giving opportunity to both the parties. The occupant has filed W.P.No.37973/2013 seeking for issue of mandamus to direct the temple to comply the order dated of the Competent Authority and execute fresh lease deed in his favour as per his representations dated and The brief facts are that the petitioner-temple is a Muzrai temple and as such the properties owned by it is public premises as defined under the KPP Act. One such shop premises which is subject matter herein was initially occupied by the father of the present occupant and the occupant has continued therein. Renewed tenancy for five years with effect from subject to the terms of Government Order was made. According to the temple, the tenancy even as per that expired on Since he had continued thereafter and that too without agreeing to the earlier terms, his occupation was unauthorized in terms of the

5 5 KPP Act. The temple at an earlier instance had instituted proceedings under the Act in No.PPA 12/96-97 which was disposed of on allowing the liberty to the parties to execute a fresh agreement. However, no such agreement was entered into by the parties. Despite the same, the occupant had filed a suit in O.S.No.8001/2004 seeking declaration that he is the tenant under the temple on a monthly rent of Rs.900/- and for injunction restraining the temple or persons claiming under it from dispossessing him from the property in question which was the suit schedule property. The Civil Court by its judgment and decree dated dismissed the said suit. Since according to the temple the occupant was in unauthorised occupation, they initiated proceedings for eviction under Sections 4(1) and 5 of the KPP Act in PPA No.21/ Further since the rents were not paid, a separate proceedings under Section 7(2) of the KPP Act has been initiated which however is not the subject matter of this petition. In the eviction proceedings before the Competent Authority, the

6 6 occupant had filed detailed objections whereafter the order dated was passed by the Competent Authority directing eviction of the occupant. The occupant claiming to be aggrieved by such order, preferred an appeal before the City Civil and Sessions Judge which is the Appellate Authority under Section 10 of the KPP Act, in M.A.No.61/2006. The Appellate Authority by its order dated has set aside the order of the Competent Authority and remanded the matter for fresh consideration. The temple being aggrieved by the said order is before this Court. 4. Heard Sri S.G.Hegde, learned counsel for the petitioner-temple, Sri N.P.Kallesh Gowda, learned counsel for the occupant and Sri Vijayakumar Patil, learned Government Advocate on behalf of the second respondent and perused the petition papers. 5. In the light of the contentions, a perusal of the order dated passed in MA No.61/2006 (Annexure-P) which is impugned would disclose that the Appellate Authority while remanding the matter to the

7 7 Competent Authority has done so basically on two grounds - firstly that the Competent Authority had overlooked the earlier order passed by him in PPA/12/ and secondly that the occupant had not been provided opportunity to put forth his case before the Competent Authority. The correctness of such conclusion is the issue to be considered herein. 6. The learned counsel for the temple while assailing the remand order would contend that the order dated in PPA/12/ has not decided the case on merits nor was any direction issued, but was disposed of with liberty granted to the parties to enter into agreement. In such circumstance, when the occupant has not established that any fresh agreement has been entered into for a particular period and more particularly when he himself contends that despite addressing several letters, the agreement was not entered into, there is no other way for the occupant to establish that he is an authorised occupant of the premises. In fact the occupant himself had instituted a

8 8 suit in O.S.No.8001/2004 which was dismissed by the judgment dated One of the issues framed therein is as to whether the temple, who was the defendant therein would prove that the occupant i.e., the plaintiff therein is an unauthorized occupant. The said issue is held in the affirmative in favour of the temple and as such the fact that he is an unauthorised occupant stands concluded. Further, though it is held that sufficient opportunity had not been granted, the fact remains that the occupant had filed detailed objections pursuant to the notice and all contentions were urged, but did not choose to appear despite opportunity being granted. When there is no document whatsoever to indicate that the lease had been continued, there is nothing more to be established before the Competent Authority. In such circumstance, when the Competent Authority has referred to all aspects and has arrived at the conclusion, no purpose would be served even if reconsideration is made by the Competent Authority when no other document was produced by the occupant before the Appellate

9 9 Authority. In such circumstance, the order of eviction ought not to have been set aside, is the contention. 7. The learned counsel for the occupant on the other hand would contend that the judgment passed in the Civil suit will not be of consequence since there is a bar under the KPP Act for exercise of jurisdiction by the Civil Court. Even otherwise, the conclusion reached therein is in view of the eviction order which was already passed by the Competent Authority. In such event, the correctness or otherwise of the eviction order was required to be tested independently. In such circumstance, the order passed in PPA-12/ would become relevant since the eviction proceedings initiated at the first instance had been concluded and a similar proceedings initiated once over again would be barred by res-judicata. The earlier order would bind the parties and the temple was required to execute the agreement. Despite repeated letters, they did not choose to do so and the rents dispatched by the occupant was deliberately returned. These are aspects

10 10 which were required to be considered by the Competent Authority and the same could have been done only if appropriate opportunity was granted. The Appellate Authority has noticed the entire order-sheet of the proceedings before the Competent Authority and as such has remitted the matter for reconsideration as no opportunity had been granted to the petitioner. Further the notice issued by the Competent Authority is also contrary to law is the contention. 8. As noticed, the Appellate Authority has remanded the matter on two counts, first being that the Competent Authority had overlooked the earlier order passed in PPA/12/ This obviously has been done in the light of the contention that the present proceedings is barred by the principles of res judicata. Such observation made by the Appellate Authority is wholly erroneous since the Competent Authority, certainly has not overlooked the earlier proceedings in PPA/12/ This is evident from the order dated (Annexure G) passed by the Competent Authority, wherein detailed reference is made to that

11 11 aspect and it has also taken into consideration that the said issue and the pendency of the suit was already considered while disposing of the interlocutory application. In effect, the Competent Authority has rejected the contention about the earlier proceedings acting as a bar for the present proceedings and has proceeded further to pass the final order. No doubt, the Appellate Authority was entitled to decide the correctness of such finding recorded by the Competent Authority and in such event, if it was of the view that the subsequent proceeding is barred by res judicata for the reasons to be recorded by it, the question of even remanding would not have arisen. However, since the Appellate Authority has not undertaken that exercise, the contention urged in that regard will have to be noticed so as to come to a conclusion on that aspect of the matter. 9. The learned counsel for the occupant on referring to the earlier proceedings in PPA/12/ has contended that in the said proceedings, eviction

12 12 was sought on the ground that he is an unauthorized occupant, but the proceedings had concluded without there being eviction order. In that view, it is contended that the subsequent proceedings for the same purpose is barred by res judicata. In order to contend that the principles of res judicata will apply to all other proceedings and not just to the proceedings under the Civil Procedure Code, the learned Counsel for the occupant has relied on the following decisions: (i) The case of Ajjappa Venkappa Shelwadi and others Vs- Manager, Syndicate Bank and another (2011(3) AIR KAR 196) wherein a Division Bench of this Court upheld the applicability of res judicata to proceedings under the Consumer Protection Act. (ii) The case of Management of M/s. Indian Aluminium Company Ltd. vs- S. Nagaiah (ILR 2009 Kar 1902) wherein a Division Bench of this Court has held that the doctrine of res judicata will be applicable not only to the suits, but to all litigations including industrial cases.

13 13 (iii) The case of Deewan Singh and Others vs- Rajendra Pd. Ardevi and Others (AIR 2007 SC 767) wherein the Hon ble Supreme Court has applied the principles of res judicata while dealing with an issue under the Rajasthan Public Trusts Act. (iv) The case of Ramachandra Dagdu Sonavane (Dead) by L.Rs and Others vs- Vithu Hira Mahar (Dead) by L.Rs and Others (AIR 2010 SC 818) wherein constructive res judicata by implication was held as applicable in a proceedings relating to Bombay Hereditary Offices Act. (v) The case of M. Nagabhushana vs- State of Karnataka and Others ( AIR 2011 SC 1113 ) wherein the doctrine of res judicata was held to be applicable even in writ proceedings. 10. With regard to the legal position that the doctrine of res judicata is applicable to all proceedings irrespective of the same being under the other enactments is certainly the well established proposition of law. In all the above cases though the proceedings

14 14 were under the different enactments, the facts arising therein have been analysed to come to a conclusion whether the subsequent proceeding is barred by res judicata, constructive res judicata or whether the issue was decided earlier by implication. The learned counsel for the Temple on the other hand has relied on the decision of the Hon ble Supreme Court in the case of N.R.Narayanswamy Vs- B. Francis Jagan (2001 (6) SCC 473) wherein while considering under the Rent Control and Eviction proceedings, it is held that the bonafide requirement is a recurring cause. It is further held that the fresh application could be summarily rejected only if (i) the proceedings are between the same parties under whom they or any of them claim and (ii) substantially the same issues as have been finally decided in a former proceeding under the Act are raised again. In the facts therein, it was held that the doctrine was not applicable as the previous proceedings for taking possession of the premises were not pressed and stood disposed of without deciding any issue.

15 Hence, it is clear that in order to apply the doctrine of res judicata, the factual matrix in each case will have to be examined so as to notice the two proceedings and then come to a conclusion, if the subsequent proceeding is barred or not. In that light, the present facts will have to be examined in greater detail. 12. The fact that in the instant case an earlier proceeding had been initiated is not in dispute and the parties are also the same in both the proceedings is evident. But what matters is, as to whether the same issue was raised earlier and if so, has it been decided finally one way or the other? The order passed in PPA/12/ is at Annexure B to the petition. To understand the purport of the same, it is also necessary to refer to the Government Order dated (Annexure A ). Since the lease in respect of the premises was not renewed after it had expired at the end of the year 1980, the lease was ordered to be renewed for the period and the rentals fixed is indicated therein. The

16 16 renewal was with effect from to subject to the slab of rent indicated for the different period. The occupant was required to adhere to that schedule, if he desired to remain in authorized possession. Since the rent was not paid as indicated therein, the proceedings in PPA/12/ was initiated to evict the occupant despite it was before the expiry of five years as stated in the Government order. This is evident from the observation in the course of the order which read thus : Since the lessee is not paying the enhanced monthly rent, the Assistant Commissioner, Muzrai has requested to evict the said person under the P.P.A. Act, However, the Competent Authority was of the view that the order fixing the rent was not served on the occupant and the contention of the learned Counsel for the occupant that he is prepared to pay the higher rent was noticed. Therefore, the Competent Authority observed thus The dispute is only on monthly rent and not for eviction of the premises in question.

17 Further, the memo filed on behalf of the Temple stating that the occupant has agreed to pay the enhanced rent fixed by the department was noticed and the proceedings was closed by the order passed as follows: ORDER In view of the above facts and on perusal of the available documents on record considering the consent of both the parties, the question of eviction does not arise and action contemplated under sub-section (1) of Section 5 of the Karnataka Public Premises Act 1974 (Eviction of Unauthorized Occupant) does not attract. As such, I hereby order that parties are free to have fresh agreement as per law. A bare perusal of the order will disclose that no issue relating to unauthorized occupation was conclusively decided therein. Since it was noticed that the main issue was with regard to the quantum of rent, the Competent Authority left it to the discretion of the parties and disposed of the matter and that too after noting the submission of the learned Counsel appearing

18 18 for both the parties therein. Subsequent thereto, the occupant did not agree to the terms of the Temple which was bound by the Government Order, but was sticking to his own terms and there being no consensus ad idem, there was no renewal of the authorization for the continued occupation. In that circumstance, the present proceedings in PPA/CR No.25/ was instituted basically for eviction after referring to the earlier proceedings and the fallout thereafter. The relevant portion of the pleadings in the petition filed before the Competent Authority (Annexure D ) reads thus Since the respondent agreed to pay the enhanced rent, the petition was withdrawn. An order to this effect was passed by this authority on Thereafter the respondent neither entered into an agreement nor paid the agreed rents The respondent is an unauthorized occupant. The respondent has not paid the rents to the petitioner. The respondent has no right to stay in the petition schedule premises. There is no lease between the petitioner or the Government and the respondent. The respondent is an unauthorized occupant. The respondent was

19 19 called upon to quit and deliver the petition schedule premises 14. Thus, a close perusal of the nature of the two proceedings will without any doubt disclose that the earlier proceedings was initiated totally under a different set of circumstance and that too, it did not end in any concrete decision on any issue, but only the submissions made by both sides was noticed. Even the quantum of rent was not determined. It was left open to the parties to enter into fresh agreement in view of the submission made by the counsel for both parties. When admittedly there is no fresh agreement entered into between the parties, the present petition was filed seeking eviction. The present petition therefore cannot be held to be barred by res judicata. Hence, the remand made to consider that aspect is not justified. 15. In that view, the next issue that arises for consideration is as to whether the Appellate Authority was justified in remanding the matter on the ground of providing further opportunity to the occupant. The

20 20 Appellate Authority in order to come to such conclusion, in para 14 of its order has referred to the different dates on which the matter was posted before the Competent Authority and reference is made to the last date i.e., when the occupant was not present and that based on the records the order was passed on The order sheet is produced at Annexure Q to the rejoinder filed herein by the Temple. Though on certain dates the Competent Authority was otherwise busy and the matter was adjourned, the matter was also adjourned at the request of the occupant on and and it was adjourned to as a last chance. Despite the same, the occupant or his counsel did not choose to appear on that day. The Competent Authority has recorded that there is no representation despite having been informed that it is a last chance and thereafter it was posted for orders on , but the order has been ultimately passed on Almost one full month was available to the occupant to seek for recall and for opportunity, but no attempt was made. The

21 21 object of the special enactment and the summary proceedings provided therein keeping in view the fact that what is involved therein is public premises should also be kept in perspective. If that be so, the occupant cannot be allowed to make a virtue out of his own default and continue to remain in occupation taking advantage of technical contentions. 16. To contend with regard to the defense that is available to the occupant herein and the materials that is required to be considered and therefore to assert that the remand is justified, the learned counsel for the occupant has referred to the documents at Annexures - R-8 to R-23 about the notices issued, correspondence exchanged and the attempt made to pay the rents, but the same being returned. In that regard, it is contended that after the earlier order dated , there was no default on the part of the occupant, but the Temple has deliberately not received the rents. Defect in the notice, not indicating the grounds, the date therein being indicated as and the order referring to

22 is contended. Further the proceedings being vitiated since the notice has not granted ten days time for objection and the evidence not being recorded in the proceedings, are also urged. 17. The learned counsel for the occupant has in that regard relied on the decision of this Court in the case of Damodar Narayana Naik Gardikar Vs- State of Karnataka and Others (1996 (7) Kar.L.J 179) wherein, in relation to the notice under KPP Act, it is held that when the notice does not conform with the requirement of law and does not state the particulars to enable the person concerned to answer the cause against him, then the notice cannot provide the foundation of the proceeding to be followed. Another decision in the case of Naveen S. Chitragar Vs- Secretary, Agricultural Produce Market Committee, Dharwad and Another (1997(5) Kar. L.J 585) wherein it is held that the opinion for unauthorized occupation must be specified in the notice and the time given to furnish explanation must not be less than ten

23 23 days is relied. Yet another decision in the case of New India Assurance Co. Ltd Vs- Nusli Neville Wadia and Another (AIR 2008 SC 876) wherein the Hon ble Supreme Court with reference to Rule 5 of the Rules has held that the procedure contemplated therein should be adhered and the occupant would be entitled to produce evidence in support of the cause shown is also relied. 18. Having carefully bestowed my attention to what has been decided therein, I am of the opinion that the said decisions will not come to the aid of the occupant herein, in the present facts of the case. In the first of the above cited decision, the very notice issued was assailed before this Court, whereas in the instant case the occupant has responded and filed a detailed reply and participated in the proceedings. Hence, there is no prejudice. In the second of the cited cases, this Court though had taken note of such observation made by the Competent Authority about there being no prejudice in view of the appellant therein having submitted the explanation, the non-compliance of the

24 24 requirement of the notice was upheld in the circumstance where the effect of the non-disposal of the representation by the authorities was an important factor which would have arisen for consideration and that would have made the difference to the case. Further, in the third of the cases cited supra, the Hon ble Supreme Court was considering the issue as to who should begin to lead evidence in a proceeding under the KPP Act and that was considered in a case where the existing tenancy was terminated and the proceedings was initiated in the light of the defense that had been taken. 19. In contrast to the above situation noticed in the said cases, in the instant case as already noticed by me, the occupant has not been diligent in prosecuting the proceedings before the Competent Authority. Even prior to the same, he has exhibited adamant attitude of continuing the tenancy on his terms, having scant regard for arriving at a consensus for mutual benefit that too when a public premises was being enjoyed by

25 25 him. The reason for this conclusion of mine is that admittedly the earlier period of lease was till Though it was sought to be regularized by a subsequent Government Order dated by extending the lease till by indication of the gradual increase in rents, the occupant has not accepted the same, but in the earlier proceedings in PPA/12/ had feigned ignorance of the same and also insisted on increasing the rent from Rs.600/- to Rs.900/- per month. Though the said proceedings was disposed of allowing the parties to have a fresh agreement, he has stonewalled the same by imposing his own terms. He was in occupation of the public premises and as such the rent had been fixed by the Government order dated Even after having knowledge of the same in the said proceedings and though he had not chosen to enter into an agreement, the said Government order was not assailed in accordance with law. But, in all his correspondence he has referred to, he has sought to have his say.

26 Further, despite not entering into a mutual agreement, he has filed a suit in O.S.No.8001/2004 on seeking for a declaration that he is a tenant on a monthly rent of Rs.900/- and to restrain the Temple from dispossessing him. The suit has been dismissed. Though the contention of the learned counsel for the Temple that there is a conclusive finding that he is an unauthorized occupant therein cannot be accepted since the dismissal is mainly in view of the eviction order passed by the Competent Authority, however what cannot be lost sight is that the occupant has not sought protection based on any existing right in his favour to continue as an authorized tenant of the premises. The attempt was to rely on the order dated in PPA/12/ as though it has granted him an indefeasible right to continue in the premises on his terms. I have already noticed the order as extracted supra. No such absolute right has been granted. All these would indicate that that he is a confirmed unauthorized occupant and the defense already being in the open, neither production of

27 27 documents nor recording of the statement is going to change the ultimate consideration. 21. In the light of the above, the decision cited by the learned Counsel for the Temple, in the case of Indra Bhanu Gaur Vs- Committee, Management of M.M.Degree College and Others (2004 (1) SCC 28) wherein the Hon ble Supreme Court, though in a service matter, has held that it is only a person who is ready and willing to avail of the opportunity given, who can make a grievance about denial of opportunity and not a person who despite repeated opportunities given and indulgence shown exhibited total indifference to extending co-operation, fortifies the view I have taken. The decision in the case of Dena Bank Vs- Municipal Corporation of Delhi (Civil Appeal No. 5878/2008 dated ) cited by the learned Counsel for the Temple also supports the view expressed by me since in the said case on a similar basic fact where the licence was not renewed as the occupant had not acceded to the rent, it is held that he answered the definition of unauthorized occupant and was liable to be evicted. The

28 28 basic fact of non-renewal of lease in the instant case is crystal clear though the justification sought to be put forth by the occupant are many, but they are not acceptable in law. In such event, the remand order on that count is also not justified. The conclusion of the Competent Authority that the occupant herein is an unauthorized occupant as held by his order dated is therefore justified. 22. From the facts noticed above and the discussion made, I have concluded that the order dated passed in PPA/12/ is not a direction issued by the Competent Authority, but the proceedings was disposed by allowing the liberty to enter into an agreement. The same has not materialized and I have also held that the occupant herein is an unauthorized occupant. In such event the prayer made in W.P.No.37973/2013 seeking for issue of mandamus is liable to be rejected. following: 23. For all the aforestated reasons, I pass the

29 29 ORDER (i) (ii) W.P.No.44222/2013 is allowed. The order dated passed by the XLI Additional City Civil & Sessions Judge in M.A.No.61/2006 is set-aside. Consequent thereto, the order dated passed by the Competent Authority is restored and upheld. (iii) (iv) W.P.No.37973/2013 stands dismissed. Parties to bear their own costs. Sd/- JUDGE akc/hrp

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