IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR.JUSTICE G.NARENDAR WRIT PETITION No.14328/2019 (APMC) BETWEEN M/S SHARADHI ARECA NUT COMPANY BY ITS MANAGING PARTNER, SRI.A.N.PARAMESHWAR, S/O NAGAPPA GOWDA, AGED ABOUT 53 YEARS, RCC4, APMC YARD, SAGAR ROAD, P.B.NO.72, SHIVAMOGGA-577204. ... PETITIONER (BY SRI DAYALU K N, ADV.) AND THE AGRICULTURAL PRODUCE MARKETING COMMITTEE (APMC) APMC YARD, SAGAR ROAD, P.B.NO.72, SHIVAMOGGA-577204 REP. BY ITS SECRETARY. ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE RESPONDENT TO RENEW THE LICENCE FOR THE PERIOD FROM 31.03.2018 TO 31.3.2028 IN PURSUANCE OF THE APPLICATION DTD:26.2.2018 AND HAND OVER THE SAME TO THE PETITIONER, BY CONSIDERING THE APPLICATION OF THE PETITIONER ETC.
THIS WRIT PETITION COMING ON FOR ‘PRELIMINARY HEARING’ THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard the learned counsel for the petitioner.
2. Petitioner is before this Court praying for the following reliefs “(i) To issue writ of mandamus directing the respondent to renew the licence for the period from 31st March 2018 to 31.03.2028 in pursuance of the application dated 28.02.2018 that is, Annexure-C to the writ petition and hand over the same to the petitioner, by considering the application of the petitioner;
(ii) To consider the (a) application of the petitioner for allotment of the schedule godown premises dated 18.11.2013 as per Annexure-Q; (b) and application dated:10.01.2018, that is, Annexure-S and to direct the respondent to allot the schedule godown premises to the petitioner;
(iii) and prays for the such other relief or relief as this Hon’ble Court deems fit in the circumstances of the case, including the costs of the above writ petition, in the interest of justice and equity.”
3. The brief facts of the case is that the petitioner is carrying on business under the name and style ‘M/s.Sharadhi Areca Nut Company’ represented by its Managing Partner Sri.A.N.Parameshwar. That the petitioner is in the occupation and use of godown bearing No.RCC-4 situated in the Market Yard at Shivamogga and that the petitioner has been regularly paying rents at the rate of Rs.4,500/- per month from July 2005 to July 2006 and at the rate of Rs.4,725/- per month from August 2006 to February, 2015, in all amounting to Rs.4,86,675/-.
4. That the respondent has issued a license to the petitioner’s firm under the provisions of Rules 76 (4) r/w 86 of the Karnataka Agricultural Produce Marketing (Regulation and Development) Rules, 1968 (hereinafter referred to as ‘the Rules’ for short). That the license was valid till 31.03.2018 and the license was issued to carry on the business on commission basis as a broker and that the petitioner has paid several lakhs of rupees by way of market fee, market cess and rent.
5. That the respondents having received the rents are attempting to initiate proceedings to evict the petitioner or to classify it as an unauthorized occupant.
6. The case of the respondent is that the godown bearing No.RCC-4 was in fact allotted on a leave & license basis in favour of one Sri.C.K.Satish, the proprietor of ‘M/s.Sharadhi Trading Company’. The admitted fact is that M/s.Sharadhi Trading Company’ was facing financial difficulties since 1997 and the same resulted in loss of business which leads to its closure in the year 2003.
7. It is also fairly admitted by the learned counsel for the petitioner that in its representation itself it is stated that the sales tax registration and A.P.M.C. license of the erstwhile partnership firm has been surrendered and cancelled. That the re-constituted deed of partnership of the present petitioner is at Annexure-A and that the said Sri.C.K.Satish is not one of the partners of petitioner’s firm.
8. Even though there is no order of allotment in favour of the petitioner’s firm, it is apparent that the Petitioner, taking undue advantage of the similarity in names, has illegally occupied the premises originally allotted to one ‘M/s.Sharadhi Trading Company’ and that the petitioner is nothing but a trespasser. There is a reference with regard to the aforesaid fact in the order passed by the Court of the I Additional District & Sessions Judge at Shivamogga dated 16.12.2016 as per Annexure-N.
9. Learned counsel for the petitioner would contend that the Appellate Court while disposing Misc.A.No.41/2015 vide order dated 16.12.2016 has categorically held that the respondent is estopped from evicting the petitioner from the schedule premises.
10. In that view of the matter, learned counsel for the petitioner submits that the instant writ petition be allowed with a direction to the respondent to consider the application for renewal license for the period 31.03.2018 to 31.03.2028 as per the application dated 28.02.2018 submitted by it.
11. Learned counsel for the petitioner would invite the attention of this Court to Annexure-C and submits that the same is the application for renewal of license to carry on the business as commission agent.
12. On perusal of Annexure-C, it is seen that the application submitted by the petitioner’s firm is not in the prescribed Form as per Rule 76 of the Rules. Rule 76 indicates that the applications for renewal has to be made in Form No.37-A as mandated under Rule 76-A of the Rules and Annexure-C is more in the nature of a representation.
13. Further, learned counsel would invite the attention of this Court to the order passed by the Appellate Court in M.A.No.41/2015 and contend that a finding has been rendered by the Appellate Court to the effect that the respondent cannot initiate action under the Karnataka Public Premises Act.
14. On perusal of Annexure-C, at the most, it could be perceived that the petitioner has only given a representation to renew the license. Admittedly, there is no license granted in favour of the petitioner as on today. Neither is there an application pending for grant of a fresh license or renewal of these licenses.
15. Learned counsel would further contend that in the absence of consideration of the license in terms of sub-Rule 10 of Rule 87-C of the Rules, the license is deemed to have been extended pending consideration and disposal of the application for grant of license.
16. In the opinion of this Court, the said contention is misconceived as the petitioner is required to submit an application in Form No.37-A as mandated under Rule 76-A of the Rules. Admittedly, it is not the case made out by the petitioner.
17. In fact perusal of the records and pleadings do not disclose that the petitioner has made an application in the prescribed Form. In that view of the matter, the said contention requires to be rejected and is accordingly rejected.
18. It is further seen that admittedly, the petitioner is taking advantage of the similarity in names of the original and erstwhile license holder which was carrying on business under the name and style ‘M/s.Sharadhi Trading Company’, and prima facie the petitioner has been carrying on business under the name and style ‘M/s.Sharadhi Areca Nut Company’. It is also not in dispute that the person who was running the erstwhile Company is one Sri.C.K.Satish and the said C.K.Satish is the beneficiary of the order of allotment under the Rules.
19. Prima-facie, the contention on behalf of the respondent, that the petitioner is a trespasser and has illegally occupied the godown appears justified. That apart, it is seen that the petitioner has moved the Appellate Court merely on the issuance of a Show Cause Notice issued by the respondent herein calling upon the petitioner to vacate the premises. The Appellate Court has interfered with the proceedings and set aside the Show Cause Notice. It is relevant to state that the Appellate Court has not disposed of the appeal on the premise that the Show Cause Notice has not been issued by the Competent Authority, on the contrary, the Appellate Court seriously erred in entertaining the Misc.Appeal and more so, it further erred in appreciating the case on merits, more so when no material was before it. The parties were not at issue and lis had been created 20. Admittedly, what was challenged before the Appellate Court was only the Show Cause Notice and there is nothing on record to demonstrate that an enquiry has been conducted and any material has been placed before the Competent Authority.
21. In that view of the matter, the only limited scope within which the Appellate Court could have conducted the enquiry is that whether the Authority who has issued the Show Cause Notice is the Competent Authority or the authorized officer as required under the Act. On the contrary, the findings rendered by the Appellate Court are on the merits of the case itself, when no material had been brought on record. The approach of the Appellate Court is wholly contrary to settled principles and requires to be deprecated.
22. That apart, this Court has directed the learned counsel for the petitioner to place on record the order of allotment as is mandatory under the Rules.
23. Learned counsel would fairly admit that the application is pending and there is no order of allotment allotting any property much less the godown bearing No.RCC-4.
24. In that view of the matter, the petitioner has not made out any case to enable this Court to issue a writ of mandamus and thereby direct the respondent to consider the application for allotment of the schedule godown.
25. As stated supra, the petitioner has not even filed and produced the application in the prescribed form and in the absence of such valid application, the prayer for direction to the Authorities to consider the application made by the petitioner does not arise.
In that view of the matter, the petition being devoid of merits, is accordingly rejected.
Sd/- JUDGE VM CT:HR