IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR CIVIL REVISION PETITION No.257 OF 2010 BETWEEN Sri. K.Prabhakar Rao Proprietor M/s. Maharaja Cold Storage Corporation Shop Nos. 13-14, Eastern Block, Jayanagar Shopping Complex, Bengaluru-11.
(By Sri. M.S.Ashwin Kumar, Advocate) AND 1. The Commissioner, Corporation of City of Bengaluru, Corporation Offices, N.R.Square, Bengaluru-1 2. The Assistant Revenue Officer South Market Division Corporation of City of Bengaluru Jayanagar Shopping Complex, Bengaluru-11 …Petitioner …Respondents (By Sri. Amit Deshpande, Advocate for R1 &R2) This CRP is filed under Section 115 of CPC against the order dated 24.07.2010 passed in O.S.No.558/2002, on the file of the XX Additional City Civil and Sessions Judge, Bengaluru, dismissing the petition filed under Sections 471 & 472 of KMC Act.
This CRP having been heard and reserved on 02.07.2019, coming on for pronouncement this day, the court pronounced the following :
ORDER This revision petition is directed against the order dated 24.7.2010 passed by XX Additional City Civil Judge, Bengaluru, in Misc.No.558/2002. The facts that have led to this revision petition are as follows :-
2. The respondent-corporation leased the shops 13 and 14 to the petitioner in the year 1978. The period of lease was 3 years and monthly rent was Rs.4,478.35 for the first year, Rs.6,581.06 for the second year and Rs.7,786.24 for the third year. The petitioner started a cold storage in those two shops under the name and style of M/s Maharaja Cold Storage Corporation. The period of lease expired, but the petitioner continued to do his business in those shops. On 28.11.1985, the petitioner was issued with a notice demanding of him enhanced rent at the rate of 20% for the year 1981, 25% for the year 1982 and 30% for the year 1983. This decision to revise the rent, it is stated, was pursuant to a resolution passed by the Standing Committee (Fixation and Finance) of the Corporation. Challenging the notice dated 28.11.1985, the petitioner initiated action under sections 470 and 471 of the Municipal Corporation Act (‘Act’ for short) by filing Misc. Petition 440/1985 in the City Civil Court (‘court’ for short). The court by order dated 8.8.1991 revised the rent giving 15% enhancement for the period 1981-84; and for the subsequent years, the court directed to fix the rent by mutual discussion. The petitioner challenged the order of the court in the High Court by filing CRP 4612/1991. This revision was allowed with certain observations that the corporation cannot unilaterally enhance the rent without affording an opportunity to the tenant and that the prescribed procedure must be followed. The CRP was disposed of on 31.10.1995. After six years, the second respondent i.e., The Assistant Revenue Officer of the Corporation issued a notice dated 23.7.2002 to the petitioner demanding payment of arrears of Rs.34,26,652/- within 10 days, or otherwise the cold storage would be sold in public auction and possession of the shops resumed. The petitioner challenged this notice by filing Misc. Petition No. 558/2002 under sections 471 and 472 of the Act in the City Civil Court. Since this Miscellaneous Petition was rejected by the impugned order, the petitioner is before this court again.
3. The main grounds urged by the petitioner and also argued by his counsel are that the power to revise the rent vests only with the Standing Committee (Taxation and Finance). At no point of time this committee issued notice to the petitioner. When the Joint Commissioner intimated to the petitioner that rent was required to be fixed at Rs.100/- per sq.ft., the petitioner replied to it; but the respondent did not consider it. The second respondent’s demand is barred by time as it was made beyond six years from the date of disposal of CRP. In the meeting held on 22.9.2001, the petitioner and his advocate participated and the petitioner was asked to give his statement in writing. He submitted his written statement on 12.10.2001. Without considering his statement, the second respondent made a demand claiming 40% enhancement for the period 1.6.1993 to 31.5.1998 and reaffirming the rates mentioned in the notice dated 28.11.1985 which was set aside by this court in CRP 4612/1991. Certain other claims are also made. This claim made by the respondents is arbitrary. Even the resolution said to have been passed by the committee does not spell out 40% enhancement to be made.
4. The learned counsel for the petitioner has also argued that the court which decided the Misc. Petition, has failed to notice the actual grievance of the petitioner. It has not considered the question of limitation; it has failed to notice the alternative prayer made by the petitioner. Its conclusion that the petitioner had been given an opportunity before passing of the demand notice is not sustainable. Its another finding that the petitioner should have challenged the order of Deputy Commissioner is also opposed to law.
5. The learned counsel for the petitioner has placed reliance on some of the decided cases. He has cited a decision of this court in the case of M.C.Gurumurthappa vs The Corporation of the City of Bengaluru and Another [1962 AIR (Kar) 92). In this decision what is held is that if the Corporation passes a resolution in excess of powers conferred on it, such a resolution is void.
6. In the case of B.K.Harish vs Commissioner, Corporation of the City of Bengaluru [ILR 1993 KAR 519], it is held that in the absence of statutory guidelines, unilateral revision of rent without consensus of the other party to the transaction cannot be legally supported. Again, this court in CRP 6134/1988, between the Corporation of the City of Bengaluru and Another vs Abdul Rashid, has held that any resolution passed by the Corporation to enhance the rent shall be treated as a tentative proposal for which objection of the tenant should be called for. And if the Corporation passes any resolution to enhance the rent, such a resolution must be made available to the other party calling upon him to file objections by giving 60 days time.
7. So it is clear that the learned counsel has referred to these decisions in support of his argument that the petitioner was not heard before making enhancement of rent and that the respondents have considered some extraneous matters for claiming 40% enhancement.
8. It is further argued that according to section 369 of the Act, the proceedings before the Deputy Commissioner cannot be considered as determination of rent made by the Standing Committee and therefore Ex.R2 cannot be enforced. The Deputy Commissioner has no jurisdiction to encroach upon the powers of the Standing Committee.
9. In so far as petitioner’s eviction under the provisions of Karnataka Public Premises Eviction of Unauthorized Occupant is concerned, it is urged that eviction proceeding was dropped as evidenced by Ex.R11. Therefore, for all these reasons, the petitioner has prayed for allowing the petition.
10. It is the argument of respondents’ counsel that after expiry of lease period in the year 1981 and subsequent to remand of the case by virtue of order in CRP 4612/1991, there was no extension of lease. The petitioner is no more a tenant and petitioner cannot seek refixation of rent. An order of eviction of the petitioner as per Ex.R12 has been passed, and this is another reason that disentitles the petitioner to claim refixation of rent. The petitioner has suppressed all these material facts. The petitioner cannot complain of violation of principles of natural justice, Ex.R2 falsifies his grievance in this regard. Any payment that petitioner has made cannot be considered as payment towards rents, it is in the form of damages that he has made payments. The petitioner failed to lead evidence to substantiate his case. Since he is no more a tenant, he cannot ask for continuing the tenancy. The scope of revision is very limited, there is no scope for re-appreciation of evidence. He has placed reliance on the judgments in the cases of Mr.Haneef Sait vs Mr.Syed Asif [ILR 2011 KAR 739] and Sarup Singh Gupta vs S.Jagdish Singh and Others [AIR 2006 SC 1734]. It is his contention the revision petition is liable to be dismissed.
11. Now on perusal of the impugned order, it is found that the court below has declined to entertain the petition under sections 471 and 472 of the Act noticing one aspect of the matter that the petitioner’s stand that he was not heard before a demand was made of him by issuing notice dated 23.7.2002, is unfounded. It is held that the Joint Commissioner by notice dated 30.12.1996 intimated the petitioner for enhancing the rent at the rate of Rs.100/- per sq. meter and called upon him to appear before him on 5.9.2001 as the corporation wanted to take action in the light of order of this court; and a meeting was further held on 22.9.2001 and nothing substantial transpired. The petitioner has filed his written statement as per Ex.R8. Therefore this shows that the petitioner was given opportunity before issuing notice dated 23.2.2002. The other contentions taken up by the petitioner regarding limitation is not considered as it does not fall within the scope of Section 471 of the Act. Another reason given by the court below is that since the petitioner has not challenged the order passed by the Deputy Commissioner as per Ex.R2, the notice dated 23.2.2002 cannot be set aside.
12. If the reasons assigned by the court are seen in the light of arguments advanced by learned counsel, firstly in regard to denial of opportunity and violation of natural justice, it has to be stated that the petitioner cannot contend to have been denied of opportunity. His own pleading shows a notice being given to him by the Joint Commissioner and his filing of statement of objections. When he participated very much, he cannot say that he was not heard. The court below has come to right conclusion. The argument of petitioner’s counsel in this regard is not acceptable.
13. The court below has held that the petitioner ought to have challenged the order passed by the Deputy Commissioner. This view does not appear to be correct for, it was only after an order was made by the Deputy Commissioner, demand was raised against the petitioner and against this demand, the aggrieved party like petitioner has to approach District Court. But if the petitioner’s stand that the Deputy Commissioner has no authority to revise the rent and he cannot usurp the powers of the Standing Committee, is to be accepted, in that event, he could not have approached the court below, for the remedy lies elsewhere. The order passed by Deputy Commissioner cannot be called usurpation of the powers of Standing Committee. It is a power available to him under Section 369 (2) of the Act.
14. It is argued that the petitioner is no longer a tenant as his tenancy expired in the year 1981; and if any payment of rent is received, after determination of lease, there is no waiver of right to evict the tenant and probably in this background the learned counsel for the respondent has placed reliance on decisions in Mr. Haneef Sait and Sarup Singh Gupta (supra). Indeed the lessor does not lose his right by mere acceptance of rent after determination of lease, but it all depends on circumstances. In this case since Ex.R11 shows dropping of eviction proceeding, I do not think that this point of argument strengthen the respondent’s case.
15. The petitioner approached the court under sections 471 and 472 of the Act seeking two reliefs (a) for setting aside notice dated 23.7.2002 (b) and/or in alternative to ascertain and determine the rent. With regard to first relief, I have already held in the above paragraph that the petitioner was given due notice before initiating action. With regard to alternative prayer, the court below has held that the petitioner failed to provide sufficient materials for fixation of rent. The petitioner did not appear for cross- examination. On the other hand, the respondent led evidence by executing two witnesses, RW1 & RW2. The evidence of RW2 shows how enhancement is made. There is no cross-examination of RW2 on what he has stated in his examination chief about revision and refixation of rent. The court below is therefore right in holding against the petitioner.
16. As regards limitation, I do not think the claim of respondent is time barred. The first three years of lease expired in the year 1981. As stated by the petitioner, the first demand notice was made on 28.11.1985. CRP 4612/1991 was disposed of on 31.10.1995 by remanding the matter and therefore any action that has been taken was continuation of earlier proceeding; notice dated 23.7.2002 is not a fresh demand. Limitation question does not arise.
17. From the above discussion, I arrive at a conclusion that this revision petition fails. It is dismissed. No order as to costs.
SD/- JUDGE ckl