B. Chandrashekar Shetty vs The State of Karnataka and Others

A.S. Bopanna, J.—The petitioner is before this Court seeking for issue of writ of certiorari to quash the impugned order dated 02.04.2013 issued by the first respondent as at Annexure-M to the petition. The petitioner is also seeking for quashing the resolution dated 25.02.2013 insofar as it relates to subject No. 2 as at Annexure-F. The petitioner has further sought for mandamus to direct respondents No. 4 and 5 to hold public auction in accordance with law of the shop premises belonging to the temple. The brief facts are that the sixth respondent herein had been granted licence in respect of the premises belonging to the fifth respondent. On the sixth respondent succeeding in the auction that was conducted, the licence has been granted in her favour. The lease period which had been granted earlier in favour of the sixth respondent expired on 31.03.2013. Thereafter, by the impugned order at Annexure-M, the licence granted in favour of the fifth respondent has been extended for a period of three years on enhancement of the licence fee at 10% every year. The petitioner claiming to be aggrieved by the said order dated 02.04.2013, whereby the licence has been extended, is before this Court assailing the said order.

The respondents have sought to justify their action. It is contended that in respect of the properties belonging to the temple and which has been let out to the licensees/tenants, vide Rule 31(17), a provision is available in the Karnataka Hindu Religious Institutions and Charitable Endowment Rules, 2002 (for short the "Rules"), whereunder the lease/licence could be extended for one term. It is in that context contended that the sixth" respondent who had sought for extension before the expiry of three months of the licence has been granted the benefit of one extension and after the said period, certainly the auction would be conducted in respect of the said property.

Learned counsel for the petitioner while assailing the action of the respondents would contend that by Rule 30 of the Rules, the procedure for grant of lease of immovable property is provided and since auction of the property is contemplated under the said provision, the lease could have been granted only by auction and the procedure presently followed is not justified. Even with regard to the nature of extension, it is contended that the sixth respondent had not exercised the option for extension of the lease as provided therein. It is his case that the Managing Committee of the fifth respondent-Temple by the resolution as at Annexure-F in the first portion has arrived at the conclusion that the auction is to be conducted, but has thereafter referred to the order said to have been made by the Hon''ble Minister to continue the lease and therefore such resolution has been passed. It is also his contention that vide Annexure-G to the petition, the sixth respondent herself had made representation dated 27.02.2013 wherein she was also prepared to pay a sum of Rs. 6,100/- per month if auction is conducted.

In that light, it is contended that the sixth respondent in fact has not sought for extension of the lease and her request in fact has not been made in accordance with law. It is also the case of the petitioner that as per Annexure-J, the Deputy Commissioner had addressed the communication to the Managing Committee of the Temple that it should be done by auction only and when the Deputy Commissioner has taken such decision, if at all the sixth respondent was aggrieved, the same could have been challenged. When that has not been done, any further recommendation made by the Deputy Commissioner as contended by the respondents would not be justified. Hence, it is his case that in the absence of challenge to the communication at Annexure-J, any recommendation thereafter made by the Deputy Commissioner could not have been accepted by the Government and the extension could not have been made.

In the light of the contentions, the aspect which requires consideration in the instant facts is as to whether the sixth respondent in fact had exercised her option of seeking extension of the lease within the time as contemplated under Rule 31(17) of the Rules. Further, what is also to be taken into consideration is that whether the entire action was only based on the orders of the Hon''ble Minister without there being consideration of appropriate request made by the sixth respondent to the Competent Authority in accordance with law for extension of lease. Further, in the present facts, when there is no dispute that at the first instance the property had been leased out by holding auction, whether the extension made for one term would be justified.

In order to ascertain this aspect of the matter, when the petition had been heard on the earlier occasions., the records were called for from the file of the learned Government Advocate to find out as to whether first and foremost the sixth respondent had made any request seeking extension of the licence. This was in view of the fact that Rule 31(17) provides that an application is necessary to be made seeking extension prior to three months of the expiry of the original period. From the file it is seen that the sixth respondent has made a request dated 04.08.2012 which is much earlier to the period of three months before expiry provided therein. The issue for consideration is as to whether the same would comply with the requirement, since the said request for extension of the licence has been addressed to the Hon''ble Minister.

In a normal circumstance, when it was not made to the competent authority prior to the expiry of the period of three months, it could have been held that it was not in compliance with the requirements under the provision of law. However, what is necessary to be noticed is that the said request which had been made by the petitioner had been forwarded from the office of the Hon''ble Minister to the competent authority, viz., the Deputy Commissioner. This is evident from the communication dated 24.09.2012 which has been addressed from the Commissioner''s office to the Deputy Commissioner. Therefore, as on 24.09.2012 i.e., prior to three months, the representation though made to the Hon''ble Minister was available with the competent authorities on being routed for consideration wherein the request had been made for extension of the lease and thereafter, the said process has been taken into consideration. Therefore, the reference made in the resolution and in any other correspondence with regard to the intervention of the Hon''ble Minister appears to be only because the sixth respondent had at the first instance made the request to the Hon''ble Minister instead of presenting the same to the competent authority. But, as noticed when it has gone to the competent authority and the competent authority has forwarded the same for consideration, the substantial compliance of Rule 31(17) of the Rules is adhered to.

The issue however which further requires to be noticed is as to whether the contention of the learned counsel for the petitioner that since the Deputy Commissioner had earlier taken a decision vide Annexure-J to hold auction, the subsequent action of the Deputy Commissioner would not be justified when no challenge is made to the Annexure-J by the petitioner. To consider this aspect, a perusal of the Annexure-J itself would indicate that it is an inter se communication between the Deputy Commissioner and the Managing Committee of the fifth respondent-Temple. The copy of the same has been addressed only to the petitioner. The said communication was made in view of certain complaint that had been lodged by the petitioner. The decision taken in that regard in fact has not been conveyed to the sixth respondent so as to construe that the sixth respondent if aggrieved by the same should have challenged the same. Further what is also necessary to be noticed is that the said communication is dated 20.03.2013, by which time, the Deputy Commissioner as noticed had'' already taken note of the request made by the sixth respondent for extension and the same was communicated by the correspondence dated 24.09.2012. If in such situation, having taken note of the request of the sixth respondent for the purpose of extension and having recommended the same subsequently, if the Deputy Commissioner'' was to take a decision in the manner as done in Annexure-J, certainly the Deputy Commissioner should have also kept in view the request that had been made by the sixth respondent and in that background the complaint made by the petitioner should have been considered and an appropriate order should have been passed. Since, the same has not been done and from the records it is seen that the sixth respondent had made an application seeking extension of the lease and as noticed though it was made to the Hon''ble Minister, it was routed through the competent authority and thereafter a decision has been taken to extend the period of lease for three years though the request was made for five years. In such circumstance, when the respondents have also considered the fact that the sixth respondent is a widow and it would enable her to carry on with her livelihood and when one extension is permissible under the Rules and such discretion is exercised by the competent authority, certainly no fault could be found in the manner in which the power has been exercised though this Court is conscious that largess of state can be conferred only by auction, which in any event after the end of the extended period of lease certainly the property would be available for auction. In such auction the petitioner and the sixth respondent will have the opportunity to participate. Hence, I see no reason to interfere with the order.

In terms of the above, the petition stands disposed of.