IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 01ST DAY OF APRIL 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NOS.11355-11365 OF 2019 (GM-PP) BETWEEN:
1. SRI K. PUNDALIKA BHAT AGED ABOUT 71 YEARS S/O. K. SRINIVAS P. BHAT SHOP NO.11-1-142-A NEAR BOARD HIGH SCHOOL SERVICE BUS STAND UDUPI-576 101 UDUPI DISTRICT 2. SRI K. SHANKAR NAYAK AGED ABOUT 56 YEARS S/O.VITTAPPA NAYAK SHOP NO.11-1-142-A1 NEAR BOARD HIGH SCHOOL SERVICE BUS STAND UDUPI-576 101 UDUPI DISTRICT 3. SRI GURURAJ ACHAR SINCE DECEASED REPRESENTED BY SRI DHARMENDRA AGED ABOUT 42 YEARS S/O. LATE GURURAJ ACHAR SHOP NO.11-1-142-B NEAR BOARD HIGH SCHOOL SERVICE BUS STAND UDUPI-576 101 UDUPI DISTRICT 4. SRI GANAPATHI KAMATH AGED ABOUT 56 YEARS S/O. KESHAVA KAMATH SHOP NO.11-1-142-C NEAR BOARD HIGH SCHOOL SERVICE BUS STAND UDUPI-576 101 UDUPI DISTRICT 5. SRI ZIYAULLA KHAN SINCE DECEASED REPRESENTED BY SRI NOORULLA KHAN AGED ABOUT 56 YEARS S/O B.P. BASHEER AHMED KHAN SHOP NO.11-1-142-D NEAR BOARD HIGH SCHOOL SERVICE BUS STAND UDUPI-576 101 UDUPI DISTRICT 6. SRI A. UPENDRA NAYAK AGED ABOUT 60 YEARS S/O.LATE RAMAKRISHNA NAYAK SHOP NO.11-1-142-E NEAR BOARD HIGH SCHOOL SERVICE BUS STAND UDUPI-576 101 UDUPI DISTRICT 7. SRI KESHAVA NAYAK AGED ABOUT 63 YEARS S/O. LATE RAMAKRISHNA NAYAK SHOP NO.11-1-142-F NEAR BOARD HIGH SCHOOL SERVICE BUS STAND UDUPI-576 101 UDUPI DISTRICT 8. SRI K. GUNDAPPA PRABHU AGED ABOUT 65 YEARS S/O. DEVADAS PRABHU SHOP NO.11-1-142-G NEAR BOARD HIGH SCHOOL SERVICE BUS STAND UDUPI-576 101 UDUPI DISTRICT 9. SMT. EDNA KUNDER AGED ABOUT 61 YEARS W/O. LEONARD KUND SHOP NO.11-1-142-H NEAR BOARD HIGH SCHOOL SERVICE BUS STAND UDUPI-576 101 UDUPI DISTRICT 10. SRI K. ABDUL MAJEED AGED ABOUT 66 YEARS S/O. ABDUL RAZAK SHOP NO.11-1-142-I NEAR BOARD HIGH SCHOOL SERVICE BUS STAND UDUPI-576 101 UDUPI DISTRICT 11. SRI A. VITTALARAYA HEGDE AGED ABOUT 56 YEARS S/O. LAKSHMANA HEGDE SHOP NO.11-1-142-J NEAR BOARD HIGH SCHOOL SERVICE BUS STAND UDUPI-576 101 UDUPI DISTRICT ... PETITIONERS (BY SRI ANAND B. MUDDAPPA, ADVOCATE) AND 1. STATE OF KARNATAKA URBAN DEVELOPMENT DEPARTMENT REPRESENTED BY ITS SECRETARY M.S. BUILDING BENGALURU-560 001 2. THE UDUPI CITY MUNICIPAL COUNCIL UDUPI REPRESENTED BY ITS COMMISSIONER UDUPI TOWN UDUPI DISTRICT-576 101 3. COMPETANT OFFICER UDUPI TOWN MUNICIPALITY UDUPI DISTRICT-576 101 ... RESPONDENTS (BY SRI VIJAY KUMAR A. PATIL, AGA FOR R1; SRI ABDULLA, ADVOCATE FOR R2 & R3) - - -
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF MANDAMUS DIRECTING THE RESPONDENTS TO INVOKE GOVERNMENT CIRCULAR IN THE MONTH OF OCTOBER, 2017 (ANNEXURE-D) AND TO GIVE AN OPPORTUNITY TO THE PETITIONERS BEFORE PROCEEDING TO EVICT THEM AND ETC., THESE PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Sri Anand B.Muddappa, learned Counsel for the petitioners.
Sri Vijay Kumar A. Patil, learned Additional Government Advocate for respondent No.1.
Sri Abdulla, learned Counsel for respondent Nos.2 and 3.
2. The petitions are admitted for hearing. With the consent of learned counsel for the parties, the same are heard finally.
3. In these petitions, the petitioners inter alia seeking a writ of mandamus directing the respondents to invoke Government Circular issued in the month of October, 2017 and to give an opportunity to the petitioners before proceeding to evict them. The petitioners also seeking a writ of certiorari quashing the order dated 31.01.2019 passed by respondent No.3.
4. The facts giving rise to filing of these petitions briefly stated are that the petitioners were in occupation of the shops belonging to the respondents as tenants. It appears that the respondents initiated proceedings for eviction of the petitioners from the premises in question and under the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974 (‘the Act’ for short), respondent No.3 has passed an order of eviction of the petitioners from the premises in question on 31.01.2019.
5. In the aforesaid factual background, the petitioners have approached this Court.
6. Learned Counsel for the petitioners submits that the order of eviction passed by respondent No.3 dated 31.01.2019 is procedurally ultra virus. The procedure prescribed in the circular issued in the month of October, 2017 was not followed before seeking eviction of the petitioners.
7. On the other hand, learned Counsel for the respondents submits that it will be opened to the petitioners to raise all such contentions that are available under law.
8. In view of the aforesaid submissions made, learned Counsel for the petitioners submits that the petitioners shall file an appeal within a period of two weeks from today and till then, a speaking order for granting protection may be passed.
9. In view of the said submission and taking into account an alternative efficacious remedy under Section 10 of the Act, it will be opened to the petitioners to raise all the contentions by filing an appeal before the Appellate Authority and in any case, the petitioners approach the Appellate Authority by filing an appeal within a period of two weeks from today, the Appellate Authority shall consider and decide the appeal, which may preferred by the petitioners by a speaking order expeditiously in accordance with law after affording an opportunity to the parties.
10. It is needless to observe that it will be opened to the petitioners to contend that the order passed by the Competent Authority is procedurally ultra virus inasmuch as the procedure prescribed in the circular issued in the month of October, 2017 has not been followed. The aforesaid issue shall be adjudicated by the Appellate Authority.
11. It is needless to state that till the appeal preferred by the petitioners is decided, no coercive action or eviction shall be taken in respect of the premises in question. The Appellate Authority is directed to dispose of the appeal within a period of three months from the date of appeal filed by the petitioners. It is needless to state that the Appellate Authority shall decide the appeal preferred by the petitioners by a speaking order in accordance with law.
It is made clear that this Court has not expressed its opinion on merits of the case.
Accordingly, the petitions are disposed of.
Sd/- JUDGE LB