S.A. Syed and Others vs Corporation of the City of Bangalore

Hari Nath Tilhari, J.-Heard Sri S.G. Prabhakar, learned Counsel for the appellants and Sri K.N. Puttegowda, learned Counsel for the respondents in these appeals. These appeals are disposed of by this common judgment. Let a copy of this judgment be placed in each of the connected appeals.

These appeals arise from the judgment and decree dated 16-4-1997, passed by Sri K. Ramakrishna Bhat, XV Additional City Civil Judge, Bangalore. Learned Civil Judge has been pleased to dismiss the plaintiff''s suits Nos. O.S. 329 of 1986 and other connected suits of the other plaintiffs in O.S. Nos. 329 to 331 and 333, all suits of 1986 by the one common judgment.

Plaintiff-appellant, who claimed to be in occupation of the shop, so also the other plaintiffs in the other suits as above claimed to be in occupation of other respective shops in question belonging to the defendant-respondent in all the four cases. That in the first case plaintiff prayed for declaration that they are entitled to claim reduction in the monthly rent payable by them and for mandatory injunction directing the defendant to consider the request of plaintiff for reduction of rent and for permanent injunction restraining the defendant-respondent and its officers from interfering as well as from taking possession of the suit schedule property from the plaintiffs, as mentioned earlier, plaintiffs claim themselves to be the lessees of the shops which are situated in Subhash Nagar Complex, Tank Bund Road, Subhash Nagar, Bangalore.

The plaintiffs, on their applications, were granted, according to the plaintiffs, the lease was for 5 years from the date of executing of the lease agreement, and according to plaintiffs as per Clause 16 of the terms and conditions of the allotment, the defendant has agreed to renew the lease for a further period after the expiry of 5 years period from the date of execution of the lease deed subject to enhancement of rent in the next period by 15%. The shops were allotted to the plaintiffs in the month of April 1981. It appears, that according to the plaintiffs, on account of removal of the bus terminal they started suffering loss in the business.

Plaintiffs'' case is that as such plaintiffs made representations to the defendant and contacted it earlier as well for reduction of rent to Rs. 750/- per month as has been done in respect of Parag Restaurant and others, they have also sent representations on 27-3-1982, 20-11-1982, 14-3-1980 and 16-5-1983 and according to the plaintiffs, their representations had not yet been rejected by the time suits were filed, instead plaintiffs received show-cause notices from the defendant calling upon plaintiffs to show cause why plaintiffs should not be evicted from the scheduled premises on the main ground of default on the payment of rent and the notices were suitably replied, plaintiffs mentioned without prejudice to their representations, plaintiffs have paid the rents at the rate of Rs. 1500/- per month and are willing to deposit the rent at the minimum rate of 1500/- per month. Plaintiffs further mentioned in the plaint that the defendant respect without terminating tenancy and without having recourse to the process of law are making the hasty arrangements by evicting the plaintiffs from the shop in question by taking the law in his own hands, though period of lease had not expired and plaintiffs appellants were not the unauthorised occupants. The plaintiff-appellant have alleged that plaintiffs cannot be evicted, except by following the process of law. They alleged that plaintiff had already filed a suit number O.S. No. 10090 of 1984 for declaration that they are entitled to seek reduction of monthly rent, in which an interim order was made and matter was pending before this Court in M.F.A. No. 2308 of 1985 and it has been held that the plaintiffs have to file suits separately, and accordingly plaintiffs-appellant filed these separate suits, have further alleged that on 16-2-1984, officials of the defendant came to the shops of the plaintiffs and threatened to evict the plaintiffs by force from their respective shops. So the plaintiffs-appellants have filed the suits for declaration that they are entitled to reduction of monthly rent and for permanent injunction.

The suit was contested by the defendant-respondent denying the plaint allegations as well as taking the plea that the suit was misconceived. The defendants in their plea submitted that the contents of the plaint paras 1 to 5 are substantially correct which deal with the calling for the tenders in relation to the locations of the schedule premises, deposits made by the concerned and did not deny them. The defendant denied the allegations that under Clause 16, the allotment of the shops was renewable for a further period of five years period from the date of expiry of lease. The corporation further alleged that Corporation is not responsible for shifting the bus terminus or for decrease in the floating population or the decrease in the business of the plaintiffs. They alleged that if the plaintiffs were suffering the loss, it was in their own interest to vacate the premises. The defendant further took the plea that the shops were let out on the terms of the tender made by the plaintiffs and plaintiffs are estopped from raising the plea of higher rent, in view of his own tender accepted by defendant. Thus, defendant has raised the plea of estoppel and on that basis, as such that plaintiffs are not entitled to claim reduction of the rent. Defendant further alleged that plaintiffs failed to pay rents regularly and so the lease in favour of the plaintiffs was determined by notice and notice was issued under Section 4 of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974, calling upon the plaintiffs to show cause why action should not be taken under the Act. The defendant-Corporation asserted that cause shown by the plaintiffs not being satisfactory, his request for reduction of monthly rent was rejected and on endorsement of such rejection of reduction had been issued to the plaintiffs. Defendant denied that the plaintiffs-appellants have paid all rents. The defendant asserted that notice under Section 4 had been issued only because plaintiffs were in default in payment of arrears of rent. Defendant denied the plaint allegations that the plaintiff''s tenancy had not been determined. The defendants asserted that they are having recourse to the law and are following the procedure prescribed by law for taking action for realisation of rent as well as for eviction and that no cause of action had accrued to the defendant and allegations to the contrary made in the plaint have been denied. Defendant further asserted that plaintiffs had filed petition under Section 471 of Karnataka Municipal Corporations Act,1976 for determination of the rate of rent and that matter is pending consideration before the Court. As such the prayer for declaration is not maintainable. The defendant further alleged that plaintiffs are not entitled to the mandatory injunction, as their request for reduction of rent had been considered and rejected. The defendant took further plea that prayer for permanent injunction cannot be granted, because defendants are not taking any action which may be said to be contrary to law, instead defendants have taken legal steps in the matter of eviction of the plaintiffs. The plea was raised to the effect that the present suit had been barred by Sections 16 and 11 of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974. With these pleas the defendant prayed that the plaintiff''s suit be dismissed.

The Trial Court framed the following issues on the basis of the pleadings of the parties:

Does plaintiff prove agreement with the defendant-Corporation as pleaded in para 3 of the plaint?

Is the plea of the plaintiff regarding the shifting of the bus terminus and consequent reduction in business relevant for the purpose of this suit and for granting the reliefs sought for by plaintiff in the suit?

If so, does plaintiff prove the averments in paras 6 and 7 of the plaint?

Is the plaintiff estopped from raising the plea of higher rent as contended in para 5 of the written statement?

Does defendant prove lawful termination of the plaintiff''s tenancy in respect of the suit property?

Is this suit tenable in view of the filing of petition by the plaintiff under Section 471 of the Karnataka Municipal Corporations Act, 1976?

Has the suit been barred in view of the contentions in para 13 of the written statement with reference to Sections 11 and 16 of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974?

Does plaintiff prove that he is entitled in law to reduction of the rent and to declaration as sought for by him, and if so, to what extent?

Is the plaintiff entitled to the reliefs of (a) mandatory and (b) permanent injunction as sought for by him?

To what other relief or reliefs is plaintiff entitled?

What decree or order?

The Trial Court on consideration of the material on record, answered Issues 1, 2, 3, 7, 8 and 9 in negative. It answered issue 4, in affirmative holding that plaintiff is estopped from raising the plea of higher rent, as contended in the written statement. It held under Issue 6, that suit is tenable irrespective of proceedings or petition under Section 471 being pending. With reference to issue 7, it had held that so far as the suit for eviction is concerned, the remedy no doubt is available to the Corporation to proceed with under that Act i.e., Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974 and suit for injunction is misconceived. It held that so far as the rent is concerned, suit may be maintainable. So it held that suit for permanent injunction restraining the defendant from taking possession is not maintainable, in view of provisions of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, but so far as the rent and question about reduction of rent is concerned the suit can be entertained. The Court held that plaintiff is not entitled in law to reduction of rent and to one sought under Issue 8, on merits. It opined that any person may have the legitimate expectations, but legitimate expectations and fixation or rent are two things not dependent inter se nor will it entitle a person to claim reduction of rent already fixed and agreed.

The Trial Court dismissed the suit, as such taking the view that plaintiff is not entitled to reduction of rent and it observed that the plaintiffs are bound to pay the rent agreed by them to the defendant, and on their failure, the defendant is entitled to take action according to law and so, no injunction can be granted.

Feeling aggrieved by the judgment and decree of the Court below, the plaintiff has come up in appeal. I have heard the learned Counsel for the appellant.

Learned Counsel for the appellant contended that the plaintiff being in possession and occupation of the land, the defendant-respondent is not entitled to throw them out by taking the law in their own hands and plaintiff is entitled at least to injunction to that effect when plaintiff is found to be in actual possession.

There may be some substance in these contentions, but in these cases, lease in favour of the plaintiffs-appellants has expired, and as pleaded by defendant, if the plaintiff is in default and is in arrears of rent, it is always open to the authorities to proceed in accordance with the law, because once the lease has stood expired and it is not renewed and notice had been issued and law permits the action to be taken and when the lease is not extended the plaintiff''s possession without consent of the defendant, may become unauthorised.

But that is a question, that has to be decided by the authorities in proceedings under Sections 4 and 5 of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974.

That Act provides a complete code of procedure. The purpose of the Act with which it had been enacted is to provide for eviction of unauthorised occupants of public premises and matters relating thereto. That expression unauthorised occupation of public premises had been defined in the Act itself vide Section 2(g) to mean "occupation by any person of public premises without any authority for such occupation and includes the continuance in occupation by any person of 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 on the expiry of period of grant or lease if lease or grant stands determined or is determined, then grantee or lessee if the person, in whose favour lease or grant was made, continues to be in possession of public premises he may be said to be unauthorised possession thereon.

Section 4 of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974 provides for exhaustive procedure code dealing with the matters relating to such persons and provides for issuance of notice in the circumstances mentioned therein and notice is required to specify the ground on which eviction is proposed and by notice those persons, who are alleged to be in occupation, they may be required or they may be called upon to show cause why the action proposed and the order proposed may not be passed. The provisions of the Act provide that such a person will have opportunity to file his objections and to show cause and the authority has to consider those objections. After reconsidering the cause shown in pursuance of the notice and the evidence, if produced and after giving reasonable opportunity of being heard to such persons, if Competent Authority is yet satisfied that such person is an unauthorised occupant it was to pass an order, for reasons to be recorded succinctly, and direct that premises be vacated by such persons, who are in its occupation and if those persons refuse or fail to comply with the order passed under sub-section (1) of the section within 45 days, then Competent Authority may evict them from the premises and take possession and he has been authorised to make use of force to the extent it is necessary for implementing the order.

Sections 7 and 8, provide for recovery of the rent and damages as arrears of land revenue and they also further provide the procedure in regard thereto in consonance with the principles of natural justice.

That order under Sections 7(1) or 7(2), is not to be passed against the person until a notice is issued in writing to the person calling upon him to show cause within a specified period as to why order be not passed under Section 7(1) and the Court is required to consider those objections, and then pass suitable orders and further provides the provision of the appeal from the order under Sections 5 and 7. So all sorts of objections as are related to the question of rent or rents are always open to be raised which under the law and terms of contract, a party may be entitled to raise, and then remedy is provided by way of appeal. So the Act provides a complete procedure to deal with the questions relating to recovery of rent and for eviction of the tenant or the person, who is said to be in unauthorised possession, provision has been made giving such person opportunity to put up his case and defence and the authorities have to consider and pass final orders.

Sections 11 and 16, attach finality to the orders passed under the Act and it provides that orders passed by competent officers, and the appellate orders shall be final and cannot be called in question in a civil suit or application under the section. Provision under Section 11 mandates that no suit proceedings shall lie or be maintainable nor any proceeding be initiated or taken in nor be entertained by any Court with reference to any action taken or proposed to be taken against the person concerned by and under the Act.

Section 16 very clearly bars and jurisdiction of the Civil Court to entertain any suit or proceedings in respect of eviction of any person, who is in unauthorised occupation as well as in respect of arrears of rent under sub-section (1) of Section 7.

It will be profitable at the juncture to quote Sections 11 and 16 of the Act:

"Section 11. Finality of orders.-Save as otherwise expressly provided under this Act, every order made by a Competent Officer or Appellate Officer under this Act shall be final and shall not be called in question in any original suit, application or execution proceedings and no injunction shall be granted by any Court or other authority in respect of any action taken or be taken in pursuance of any power conferred by or under this Act.

Section 16. The power of jurisdiction.-No Court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person who is in unauthorised occupation of any public premises or the recovery of the arrears of rent payable under sub-section (1) of Section 7 or the damages payable under sub-section (2) of that section or the cots awarded to the State Government or the local authority or the corporate authority under sub-section (5) of Section 10 or any portion of such rent, damages or costs".

A reading of this provision clearly provides that in relation to the matters of eviction of an unauthorised occupants or in matters of arrears of rent covered by the provisions of the Act, in respect of which authorities can pass suitable orders under the Act no suit is maintainable in Civil Court. Whatever dispute with reference to question of rent, rate of rent, arrears, default or nature of their possession has to be raised, it has to be raised in those proceedings, i.e., proceedings under the Act and authorities have to decide the pleas raised by the alleged unauthorised occupant or person, and if any is aggrieved from orders of competent or prescribed authority under the Act remedy of appeal is provided as well and Act provides order passed under the Act shall be final. Thus the Act provides complete and exhaustive procedure for these matters, as such in my opinion it is the Act expressly as well as by necessary implication bars the jurisdiction of the Civil Court to entertain the suit.

Section 9 of the Code of Civil Procedure very clearly says and provides with respect to Civil Court''s jurisdiction to try civil suit, Section 9 reads as under:

"The Court shall subject to the provisions herein contain have jurisdiction to try all suits of civil nature, except the suits of which cognisance are either expressly or impliedly barred".

When the Act by itself expressly bars Civil Courts'' jurisdiction to entertain civil suit in regard to such matters and allows the raising of all the disputes relating to the matter of eviction, whether the Corporation has got a right to take proceedings for eviction or not, whether parties are in arrears of rent or objections relate to rent, even, in my opinion the intention of the Legislature is to completely oust the jurisdiction of the Court in regard to matters which are covered by Sections 5 and 7. In this view of the matter, the Civil Court could not really grant permanent injunction to the plaintiff restraining prohibiting defendant-Corporation from evicting the plaintiff-appellant, by actions taken in accordance with the procedure provided and prescribed under this Act.

The question of rent and its rate being agreed so far, it might have been that plaintiff would have taken lease, on their expectation of earning highest profit because of bus terminus, but it cannot be taken to be a ground to seek reduction of rate of rent by way of suit because the bus terminus has been shifted by Road Ways Authorities, and so the plaintiff-appellants expectations were marred and the plaintiffs could not earn as much profits, as they expected from the shops to unless agreement deed so provides that on their business being reduced, for whatsoever reason, the tenants or licences will be entitled them to seek reduction of the rent. No doubt it is always open to the Corporation if Act permits, to consider their requests on humanitarian ground, and if it so agrees to reduce the rent, Court does not come into picture, as that is the matter between the Corporation and these persons. The Corporation has rejected their applications, then no doubt chapter is closed, but if it has not rejected, it is upto Corporation to pass any order: Whether reducing or refusing to reduce the rent if such a dispute is raised. But the present suit has been misconceived and therefore in my opinion really neither plaintiff has been entitled to claim reduction of rate of rent or rent nor suit was maintainable and the judgment of the Court below dismissing all the suits cannot be said to be suffering from any error of fact or law. Really all such suits were not maintainable, and the suits could be dismissed on that ground.

Appeals, as such in my opinion are misconceived and are dismissed with the observation that no doubt it is always open to the Corporation to take proceedings for eviction in accordance with law and under the provisions of Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974 or any other process of law in the matter of eviction or realisation of rent, but it cannot take the law into its own hand and cannot use the force, otherwise than what is provided and permitted by the law. Subject to these observations keeping it open to the Corporation to take any action, according to law and procedure established by law the appeals are hereby dismissed on merits.