Sri. K.S. Abdul Azeez vs The Mangalore City Corporation Sri Abbobakkar Siddique Vs The Managalore City Corporation Mangalore

Ram Mohan Reddy

Common questions of law and that of fact arise for "decision making, hence with the consent of the learned Counsel for the parties, petitions are finally heard and disposed of by this order. Petitioner in W.P. 22760/11 claims to have a license to use the immovable property belonging to the 1st respondent - Mangalore City Corporation, for short ''MCC'' for a period of one year, issued during the year 1998 and renewed there afterwards, while the petitioner in W.P. 31425/10 claims to be the sub-licensee of the aforesaid immovable property. It appears that the 2nd respondent Standing Committee of the 1st respondent inspected the premises and observed that the sub-licensee in possession was carrying on business and accordingly passed a resolution to continue him as a licensee of the said premises on payment of a non-refundable deposit of Rs. 2,00,000/- and Rs. 200/- per day for use and occupation. That resolution when called in question in W.P. 1331/07 by the licensee, the petitioner in W. P. 22760/11, a learned Single Judge by order dt. 7/9/2007 set aside the resolution and remitted the proceeding for fresh consideration to the Standing Committee with a direction to hear and dispose of the matter within 8 weeks after extending fair and reasonable opportunity to both the parties and pass a reasoned order while parties were directed to maintain status-quo. There afterwards it further appears that the Standing Committee passed a resolution dt. 25/9/2008 aggrieved by which the licensee filed W.P. 10785/2009 and a learned Single Judge by order dt. 21/1/2010, recording the submission of the learned Counsel for MCC allowed the writ petition, set aside the resolution of the Standing Committee and remitted the proceeding for a fresh consideration, compliance with the order in W.P. 1331/2007.

The Standing Committee, it is stated by both the petitioners, passed a resolution dt 6/7/2010 - Annex. A. directing a public auction for the right to use the premises. Hence these petitions.

Learned Counsel for the parties submit that the resolution - Annex. A of the Standing Committee is not in compliance with the directions of this court in the aforesaid two writ petitions, hence the resolution is null and void.

Per contra, learned Counsel for MCC and the Standing Committee, respondents 1 & 2, submits that in the earlier writ petitions, it was not brought to the notice of the learned Single Judge, that disposal of properties and interest therein belonging to the Corporation ought to be in compliance with Sec 176 of the Karnataka Municipal Corporations Act, 1976, for short the Act''. Learned Counsel further hastens to add that under Sec 176 of the Act, a person taking on license property belonging to the Municipal Corporation is not entitled to sub-let and if so done, tantamount to breach of the statute. According to the learned Counsel, neither of the petitioners are entitled to continue to use the premises in question as they have no authority of law to do so and therefore they be directed to pay damages for use and occupation from the date of expiry of the license. Learned Counsel hastens to add that the resolutions of the 2nd respondent passed earlier have since been set aside in the aforesaid orders of the learned Single Judge and therefore no resolution is in force permitting the sub-licensee to continue to be in possession of the premises. It is lastly contended that the resolution calling in question in these petitions are strictly in accordance with law directing a public auction in which both the petitioners may participate and if the bid is the highest, would be entitled to the use and occupation of the premises, subject to acceptance of the bid by the Corporation.

Having had a glimpse at the orders of the learned Single Judge in the aforesaid two writ petitions, undoubtedly neither of the parties brought to the notice of the learned Judge that the disposal of the property and interest therein under Sec 176 of the Act. Had this provision been brought to the notice of the court, I have no reason to believe, the learned Single Judge would have considered the same and disposed of the writ petitions in accordance with law. Be that as it may, since neither of the orders assist the petitioners to continue in lawful possession of the property and as the two resolutions passed by the Standing Committee are set aside by the aforesaid two orders, Sec 176 of the Act applies in the matter of disposal of the said property and interest therein, belonging to the respondent-Corporation.

Apparently neither of the petitioners have placed before court, the deed of license for the use and occupation of the premises in question nor its subsequent renewals in accordance with law. Regard being had to Sec 176 of the Act, not providing for renewal of a license of immovable properties, neither of the petitioners can claim to be in lawful possession of the property.

The resolution impugned of the 2nd respondent -Committee of the 1st respondent - MCC, to put up for public auction, the right to use the premises belonging to it is in consonance with Sec 176 of the Act, hence cannot be said to be either illegal or arbitrary, calling for interference. In similar circumstances, though not identical, the Apex Court in Saroj Screens Pvt. Ltd. Vs. Ghanshyam and Others, , regard being had to Art. 14 of the Constitution of India and Sec. 70 of the City of Nagpur Corporation Act, relating to alienation of municipal property a provision governing the disposal of municipal property or property vesting in it or under the management of the Corporation observed that though the exercise of power of disposal of property by the Corporation under Sec. 70 is not hedged with any particular condition except that the alienation could not have been made without the previous sanction of the State government, "but in our constitutional scheme compliance of the doctrine of equality enshrined in Art. 14 of the Constitution has to be read as a condition precedent for exercise of power by the State government and the Corporation, more so, when it relates to alienation of public property on any right or interest therein The Corporation holds the property as a trustee of the public and any alienation of such property or any right or interest therein otherwise than by way of auction or by inviting bids would amount to breach of that trust."

The mandate of law cannot but be more expressly set out as opined by their Lordships of the Apex Court noticed supra. In that view of the matter, neither of the petitioners can be permitted to contend to have a subsisting right to continue to occupy the premises, since prima facie is unauthorized. Learned Counsel for the Corporation submits that the premises in question commands in the least Rs. 200/- per day for use and occupation. To a question of this court to the learned Counsel for the petitioner in W.P. 31425/10, whether the petitioner would handover vacant possession of the premises today to avoid being mulked with damages for use and occupation, learned Counsel submits "no". In other words, learned Counsel submits that his client is not willing to deliver possession of the premises. In such a circumstance, the Corporation ought to initiate action in accordance with law to evict the petitioner from the premises and until then recover damages for its use and occupation, at the rate of Rs. 1,000/- per day, since, the learned Counsel for the petitioner in W. P. 31425/10 submits that his client is willing to pay Rs. 1,000/- per day. On eviction of the said petitioner from the premises, it is needless to state that the resolution - Annex. A. could be effectively put into force.

In the result, these petitions being meritless, are accordingly rejected.