IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29th DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.9910 OF 2019 (GM-PP) BETWEEN:
SHRI L SREENIVASA REDDY S/O LATE LAKSHMAIAH REDDY FORMER JUDGE HIGH COURT OF KARNATAKA AGED ABOUT 82 YEARS RESIDING AT NO.21/1A LAKSHMI ROAD SHANTHINAGAR BANGALORE-560 027 (BY SRI.S P SHANKAR, SR. COUNSEL FOR SMT.MAMATA G KULKARNI, ADV.) AND:
THE LIFE INSURANCE CORPORATION OF INDIA DIVISIONAL OFFICE JEEVAN PRAKASH JAYACHAMARAJENDRA ROAD BANGALORE-560 002 REPRESENTED BY ITS DULY AUTHORISED OFFICER MANAGER (LEGAL & HPF) (BY SRI.RAMACHANDRA G BHAT, ADV. FOR C/R) … PETITIONER … RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS IN PP 4/214 ON THE FILE OF ESTATE OFFICER, UNDER THE PUBLIC PREMISES [EVICTION OF UNAUTHORISED OCCUPANTS] ACT 1971 AND RECORDS IN M.A.NO.9/2015 ON THE FILE OF XII ADDL CITY CIVIL AND SESSIONS JUDGE, BANGALORE CCH 27 AND ISSUE OF WRIT CERTIORARI QUASHING THE ORDER DTD:9.4.2015 IN CASE NO.PP.4/2014 ON THE FILE OF ESTATE OFFICER UNDER THE PUBLIC PREMISES [EVICTION OF UNAUTHORISED OCCUPANTS/A ACT 1971 SOUTH CENTRAL ZONE OFFICE, JEEVANBHAGA, SAIFABADM HYDERABAD 50063, ANNEXURE-A AND THE ORDER DTD:30.1.2019 PASSED IN MA 9/2015 ON THE FILE OF XII ADDL CITY CIVIL JUDGE AND SESSION JUDGE BENGALURU-CCH-27 ANNEXURE-G AND FOR OTHER INCEDENTAL RELIEF; AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.S.P.Shankar, Learned Senior Counsel for Mr.Mamata G.Kulkarni, learned counsel for the petitioner.
Mr.Ramachandra G. Bhat, learned counsel for caveator-respondent.
Petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally.
2. In this petition under Articles 226 and 227 of the Constitution of India, the petitioner inter alia seeks a writ of certiorari for quashment of the order dated 09.04.2015 and 30.01.2019 passed by the Estate Officer under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as 'the Act' for short) and the XVII Additional Senior Civil Judge and Sessions Judge, Bangalore respectively.
3. In order to appreciate the petitioners grievances, few facts need mention, which are stated infra:
The petitioner on 05.11.1969 was allotted office premises measuring 550 Sq.ft. on a monthly rent of Rs.195/ per month by house rent controller. Thereafter, the petitioner became the statutory tenant. The owner of the premises was LIC of India Ltd. Therefore, the premises in question were declared as public premises. After enactment of the Act, the petitioner on 09.12.1991 was appointed as permanent Judge of this Court and served this Court as a Judge till he attained superannuation. After superannuation also, the petitioner utilized the premises for consultation / professional work. On 01.01.2001, the respondent- Corporation requested the petitioner who had just retired to execute a document, by which the Corporation proposed to fix rent for office premises on the ground that the petitioner would continue as tenant for a period of five years subject to renewal of further five years. Thereafter, on 07.09.2013 the LIC issued a notice of termination calling upon the petitioner to quit and deliver the vacant possession of the premises in question and the tenancy of the petitioner is determined from 31.10.2013. From 01.11.2013, the petitioner became unauthorized occupant and was liable to pay the damages. On 17.01.2014, the respondent- Corporation filed two cases viz., one for recovery of possession under Section 5 of the Act. The other under Section 7 of the Act for recovery of damages for continued use even after termination of tenancy. The petitioner in the month of May 2015 vacated the premises and as if to surrender the vacant premises by delivering the keys of the premises of the respondents. However, the petitioner also paid rent upto 31.05.2014.
4. On 17.09.2014, the petitioner handed over the keys of the premises to the Estate Officer and the Officer of LIC received the keys from the petitioner. Thereupon, the proceedings for eviction were closed. The proceedings with regard to recovery of damages for unauthorized occupation on the basis of an unregistered document of lease continued. A photocopy of which was produced in the proceedings before the Estate Officer. The rent at the enhanced rate was sought to be recovered from the petitioner. The petitioner during the course of the proceedings, raised an objection to the marking of the aforesaid document as except on the ground that the same was not properly stamped and it was not registered. However, the document was marked as Ex.P1 for the purposes of identity. The Estate Officer by an order dated 09.04.2015, quantified the arrears of rent from 01.10.2006 to 17.09.2014 and fixed the rate at Rs.25/- per square feet, whereas the statutory authority had fixed the rent at Rs.195 per month. Being aggrieved, the petitioner filed an appeal. The appellate authority by an order dated 30.01.2019 partly allowed the appeal preferred by the petitioner and directed the petitioner to pay arrears of rent for a period of three years preceding from 17.09.2015. In the aforesaid factual background, the petitioner has approached this Court.
5. Learned Senior counsel for the petitioner submitted that the notice viz., Ex.P5 was issued to the petitioner on 30.10.2013. The petitioner vacated the premises on 31.05.2014 and handed over the key to the Estate Officer on 17.09.2014. It is further submitted that under Section 7 of the Act, the petitioner is liable to pay the damages only for the period of unauthorized occupation and therefore, the petitioner is liable to pay damages for the unauthorized occupation only for the period of 01.11.2013 to 17.09.2014. However, the estate officer without appreciating the aforesaid aspect of the matter and the statutory provisions, awarded damages to the tune of Rs.7,04,700/- i.e., for a period from 01.10.2006 to 17.09.2014 enhanced rate without there being any material on record in appeal. The aforesaid period was though reduced to three years, however, the same was also illegal. It is further submitted that on the basis of inadmissible photocopy of the lease deed, the rent could not have been demanded from the petitioner at the enhanced rate as the lease deed cannot be read in evidence in lieu of the bar contained in Section 34 of the Karnataka Stamp Act. On the other hand, learned counsel for the respondent has submitted that the petitioner had handed over the possession from 17.09.2014. It is fairly submitted by the learned counsel for respondent that the original lease deed was not produced by the respondents before the competent authority. However, the same was filed along with an application before the appellate authority. However, the appellate authority did not decide the aforesaid application and decided the appeal. It is further submitted that the impugned orders are perfectly, just and legal and do not call for any interference by this court.
6. I have considered the submissions made by learned counsel on both the sides and have perused the record. Before proceeding further it is axiomatic to take note of relevant statutory provisions viz., Section 2(g) of the Act. Section 7(1), Section 7(2), as well as Section 2(g) of the Act are reproduced below for the facility of reference:
7. Power to require payment of rent or damages in respect of public premises.— (1) Where any person is in arrears of rent payable in respect of any public premises, the estate officer may, by order, require that person to pay the same within such time and in such instalments as may be specified in the order.
(2) Where any person is, or has at any time been, in unauthorised occupation of any public premises, the estate officer may, having regard to such principles of assessment of damages as may be prescribed, assess the damages on account of the use and occupation of such premises and may, by order, require that person to pay the damages within such time and in such instalments as may be specified in the order.
2(g) “unauthorised occupation”, in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever.
Thus, if both the provisions are read in conjunction, it is evident that the rent can be recovered from the tenant only for a period of unauthorized occupation.
7. Admittedly, in the instant case, it is not in dispute that the petitioner has handed over the possession of the premises on 17.09.2014. The petitioner has remained in unauthorized occupation for a period of 01.11.2013 to 17.09.2014, for which the petitioner has already paid rent. Admittedly before the competent authority, the respondents had filed a photocopy of the lease deed, which was marked as an exhibit despite objections have been raised by the petitioner. The aforesaid lease deed under which the petitioner was made liable to pay rent at the enhanced rate is neither properly stamped nor is registered. In view of the bar contained in Section 34 of the Karnataka Stamp Act, the aforesaid lease agreement, which is a photocopy could not have been taken into account for fixing the liability of the petitioner to pay rent at the enhanced rate. However, the order passed by the Estate Officer as well as the appellate authority has been passed in violation of provisions contained in Section 7(2) read with Section 2(g) of the Act. The impugned order therefore cannot be sustained in the eye of law. The impugned order insofar as it directed the petitioner to pay rent for a period from 01.10.2006 to 17.09.2014 for a period of three years passed by the Estate Officer and the appellate authority respectively is hereby quashed and set aside. It is directed that the petitioner shall be liable to pay the rent for a period from 01.11.2013 to 17.09.2014 at the rate fixed by the house rent controller.
Accordingly, the petition is disposed of.
Sd/- JUDGE SS