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2007(4) Kar. L.J. 481
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
H.V.G. RAMESH, J.
DIVISIONAL TRAFFIC OFFICER, KARNATAKA STATE ROAD TRANSPORT CORPORATION, MYSORE DIVISION, MYSORE - Appellant
Versus
K. RAMAIAH AND OTHERS - Respondents
Writ Petition No. 17027 of 2003.
Decided on : 4th July, 2006
Cases Referred : AIR 1985 Kar 225, (1980) 3 SCC 1, ILR 1991 Kar 1365, 2001(2) KCCR 1267, (1980) 3 SCC 1, AIR 1985 Kar 225, ILR 1991 Kar 1365, 2001(2) KCCR 1267.
Transfer of property Act, 1882 - Section 106 - Notice lunder - Eviction from public premises - Notice under - Not necessary.
Cases Referred: 1996(7) Kar. L.J.179: AIR 1995 Kant.225; AIR 1980 SC 1157: (1980)3 SCC 1; ILR 1991 Kar. 1365 (DB); 2001(2) KCCR 1267: 2001 AIR Kant. HCR 1382: 2001 AIHC 2975.
Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974 -Section 4(1) -Eviction -Shops in Bus stand of the Corporation leased/licenced for three years -After expiry of this period their occupation has become unauthorised by efflux of time -Acceptance of rent does not amount to consent -There cannot be waiver of termination of tenancy -Order of eviction passed by competent authority upheld. [H. V. G. Ramesh, J.] - Referring to S.2(g) of the Act, this Court has observed that unauthorised occupation means that if a person were to continue in occupation of any premises after the expiry of the lease or agreement or whose tenancy has been terminated or ceased, and has held that the tenants have no authority whatsoever to continue their possession after termination of the lease. In the instant case also, originally there was said to be lease/license for a period of three years. Though there were some negotiations taking place in between after issuance of notice under S.106 of the Transfer of Property Act, the negotiations failed. As such, it cannot be said that the petitioner has given consent by his conduct of accepting the rents and that there is waiver of termination of tenancy. Even as per the ratio laid down in Srinivasa Achar s (ILR 1991 Kar 1365) case, no such prior notice of termination is required in case of unauthorized occupation. Admittedly, in these set of cases, respondents 1 to 4 and 6 are in occupation of the shop premises on lease/license for a period of three years and thereafter, there was no such continuation. More over, the premises in question is a public premise. In the circumstances, the Act is applicable.
Cases Referred : AIR 1985 Kar 225, (1980) 3 SCC 1, ILR 1991 Kar 1365, 2001(2) KCCR 1267, (1980) 3 SCC 1, AIR 1985 Kar 225, ILR 1991 Kar 1365, 2001(2) KCCR 1267.
Karnataka Rent Act, 1999 -Section 27 -Termination of tenancy by efflux of time -Effect of acceptance of rent. See, Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974 -Section 4(1).
Cases Referred : AIR 1985 Kar 225, (1980) 3 SCC 1, ILR 1991 Kar 1365, 2001(2) KCCR 1267, (1980) 3 SCC 1, AIR 1985 Kar 225, ILR 1991 Kar 1365, 2001(2) KCCR 1267.
Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974 - Section 4 and 5 - Expiry of lease - Effect Acceptance of rent after expiry of lease - Would not affect termination - Section 106, T.P Act - Not applicable. [H.V.G.Ramesh,J]: The respondents were given due notice as per provisions of Section 106 of the Transfer of Property Act and in between, there were some negotiations between the parties and in that context, it is the contention of the respondents Counsel that there is estoppel and also waiver of termination of tenancy by conduct as the negotiations failed. It is also seen that due notice as contemplated under Section 4(1) of the Act has been issued and the respondents thereafter have participated in the proceedings befor ethe Competent Authority and later they have suffered an order of eviction. However, the learned District Judge has come to the conclusion that the tenants, over as per Section 116 of the Transfer of Property Act and that the tenancy of the respondents has not been determined as per Section 1 06 of the Transfer of Property Act and as such, the initiation of the proceedings under the provisions of the Act is not valid. The learned District Judge was also of the view that no such notice has been issued to the tenants and as on the date of issuance of notice under Section 4(1) of the Act, the respondents herein are not the unauthorised occupants and the issuance of notice under Section 4(1) is bad in law and the Competent Officer is only competent to pass eviction order against unauthorised occupants and not against authorised occupants.
Cases Referred: 1996(7) Kar. L.J.179: AIR 1995 Kant.225; AIR 1980 SC 1157: (1980)3 SCC 1; ILR 1991 Kar. 1365 (DB); 2001(2) KCCR 1267: 2001 AIR Kant. HCR 1382: 2001 AIHC 2975.
Transfer of Property Act, 1882 -Section 116 -Eviction -Shops in Bus stand of the Corporation leased/licenced for three years -After expiry of this period their occupation has become unauthorised by efflux of time -Acceptance of rent does not amount to consent -There cannot be waiver of termination of tenancy -Order of eviction passed by competent authority upheld.
]. Cases Referred : AIR 1985 Kar 225, (1980) 3 SCC 1, ILR 1991 Kar 1365, 2001(2) KCCR 1267, (1980) 3 SCC 1, AIR 1985 Kar 225, ILR 1991 Kar 1365, 2001(2) KCCR 1267.
The petitioner-KSRTC of Mysore Division is challenging the order of the Principal District Judge, Mysore dated 20-9-2002 in Miscellaneous Appeal Nos. 12, 13, 16, 17 and 18 of 1998 reversing the order passed by the Competent Authority/Officer under the provisions of Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974.
2. According to the petitioner, shop bearing Nos. 12, 4, 3, 8, 1 had been allotted to the respective respondents for carrying on a particular business and that the occupants of the premises have been in unauthorised occupation after expiry of the period of allotment, having no right to carry on the business in the premises by virtue of efflux of time. Further, since these respondents-allottees are claiming as tenants, notices were issued to them determining the tenancy as required under Section 106 of the Transfer of Property Act, 1882. After determination of the tenancy, petitioner filed a complaint before the 7th respondent who is the Competent Officer of the KSRTC alleging unauthorised occupation of the shop premises mentioned above against respondents 1 to 6 and that they are labile to be evicted under the provisions of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974 (for short 'the Act'), from these premises situate at the KSRTC Bus Stand, KR. Circle, Mysore belonging to the KSRTC. The Competent Officer, after issuance of notice and on the appearance of the respondents, has held an enquiry and passed a common order dated 23-3-1998 ordering the respondents to vacate and hand over vacant possession of the schedule premises to the complainant/petitioner within forty-five days from the date of the said order acting under Section 5 of the Act.
3. Being aggrieved by the said order, the respondents have moved the District Judge, Mysore in MA Nos. 12, 13, 16, 17 and 18/1998. By order dated 20-9-2002, the District Judge has allowed the appeal by setting aside the order of the Competent Officer holding that respondents 1 to 6 are not in unauthorised occupation of the premises and that there is no valid determination of the tenancy.
4. In the meanwhile, there was also negotiations between the officials of the Corporation and the occupants of the shop premises and since the negotiations failed, proceedings were initiated against the respondents under the provisions of the Act. Aggrieved by the order of the District Judge, Mysore, the petitioner-Corporation is seeking for an issuance of writ of certiorari to quash Annexure-B - order of the Principal District Judge, Mysore in the miscellaneous appeals mentioned above.
5. Heard Sri Jayaprakash, Counsel representing the petitioner; Sri R.N. Narasimhamurthy, Senior Counsel representing some of the respondents and Sri D.S. Hosmath, Counsel representing the legal heirs of 3rd respondent.
6. It is seen, the writ petition against the 5th respondent is shown to have been dismissed.
7. At the outset, it is the submission of the petitioner's Counsel that there was a notice issued on 27-4-1992 determining the tenancy as per the provisions of the Transfer of Property Act. Ignoring the said notice issued by the petitioner, learned District Judge has passed the impugned order and it is his further submission that there cannot be any such waiver of notice despite some efforts or talks being made by the officials of the KSRTC and the respondents.
8. Learned Counsel has taken me through the order passed by the Competent Officer of the KSRTC i.e., after the notice dated 27-4-1992 issued as per the Transfer of Property Act determining the tenancy; and thereafter has taken me through the notice issued under Section 4(1) on 27-3-1996 of the Act terminating the tenancy after having given an opportunity to the respondents to participate in the proceedings and the order passed under Section 5 of the Act directing to vacate and hand over possession, and submitted that ignoring this aspect, the learned District Judge, mainly on the ground that no noti
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