The Judgment of the Court was delivered by
Rama Jois, J.:— This case is an example to show as to how by inept handling of its case by a public authority it deprives itself of the relief to which it is entitled to in law for a long time, in this case, for over a decade.
2. The facts of the case in brief are as follow: A site measuring 180 feet × 150 feet situate near Seenappa Shetty Circle, Nehru Road, within the vicinitv of Shimoga City Municipal Council had been leased out in favour of the appellant more than quarter century before. The lease was initially for a period of five years and it was being extended from time to time in favour of the appellant without putting the same to auction after the expiry of each period of lease. Whatever that may be there is no dispute that the latest lease in favour of the appelant commenced from 22-1-1972 and was for a period of five years. It was due to expire on 22-1-1977. At that time the elected Council was not in existence and consequently an administrator had been appointed for exercising the powers of the Municipal Council. The Administrator exercising the power of the Municipal Council passed a resolution on 7-1-1977. It reads:—
The Resolution is clear and unambiguous. The Administrator was clearly of the opinion that the lease could not be and would not be extended on and after 22-1-1977 as the site in question was required for the purpose of the Municipal Council itself. Immediately thereafter, aggrieved by the Resolution of the Administrator the appellant preferred a revision petition before the State Government. The State Government issued an interim order staying the resolution of the Administrator on 15-1-1977 that is even before the expiry of the lease period. The main petition itself was disposed of on 25-8-1977. The Government came to the conclusion that the action of the Administrator was in accordance with law and therefore there was no ground for the Government to interfere. Shortly before that, the appellant filed O.S No. 450/77 on the file of the Additional Munsiff, Shimoga, praying for mandatory injunction against the Municipal Council not to evict him except in accordance with law. An interim injunction in like terms was granted. The Municipal Council filed R.A No. 123/81 against the interim injunction, but it failed. It appears, the Municipal Council even filed a memo before the Munsiff stating that the Muncipality would take action only in accordance with law, namely, in accordance with the provisions of the Karnataka Public Premises (Eviction of Un-authorised Occupants) Act, 1974.
3. Learned Counsel for the appellant submits that no such memo was filed. If such a memo had been prepared on behalf of the Municipal Council and had not been filed before the learned Munsiff it is strange. But it would be stranger if the memo was filed and the Munsiff still proceeded with the suit, for the reason as the Municipality could take action against the appellant only in accordance with law, it was the duty of the Municipal Council to make such a submission in the suit and if such a memo had been filed, the Munsiff ought to have dismissed the suit recording the memo filed. But the fact remains that the Munsiff proceeded with the suit and he granted a permanent injunction against the Municipal Council as prayed for, namely, that the Municipal Council should not evict the appellant except in accordance with law. In fact for a local authority no such Injunction is necessary because it is always bound to take action only in accordance with law and further in the present case the Municipality did not want to take action in violation of law. However, the suit was decreed on 16-10-1981 and against the said decree the Municipal Council preferred R.A No. 123/81 before the Civil Judge, and the Civil Judge dismissed the appeal on 2-9-1983.
4. Learned Counsel for the Municipal Council explains that the Municipal Council had to prefer the appeal against the order of the learned Munsiff for the Munsiff instead of directing the Municipal Council to take action only in accordance with law, had gone a step further and had held that the appellant was a tenant holding over. The learned Civil Judge disagreed with the said finding though he confirmed injunction.
5. Thereafter action was initiated against the appellant in accordance with the provisions of the Karnataka Public Premises (Eviction of Un-authorised Occupants) Act. The Commissioner of the City Municipal Council who is the Competent Authority made the order after notice to the appellant and holding inquiry under Section 5(1) of the said Act on 23-8-1984. It is this action the Municipal Council should have taken immediately after the disposal of the revision petition before the Government on 28-5-1977. If such an action was initiated then itself there was no other alternative for the Munsiff to dismiss the suit. However the Municipal Council took such action alter about seven years after the date on which they should have taken that appropriate action. Aggrieved by the order of the Competent Authority the appellant preferred Misc. Appeal No. 86/84 before the District Judge, at Shimoga. Before the Appellate Authority the contention of the appellant was that he was not an un-authorised occupant and therefore no action could be taken against him under the said Act, as the said Act, authorised eviction of un-authorised occupants alone.
6. There could be no dispute that action under the said Act, is permissible only against un-authorised occupants. (See- Indian Bank v. M/S. Blaze & Central (P) Ltd.* . ILR 1986 KAR 743.). The contention of the appellant before the Appellate Authority however was that he had become a tenant holding over on the basis of Section 116 of the Transfer of Property Act, and having regard to the fact that the rent paid by the appellant even after the termination of the tenancy had been received by the Municipal Council.
7. The learned District Judge considered the above contention with reference to the facts and circumstances of the case and he was of the view that as the Administrator had passed an unequivocal resolution on 7-1-1977 itself to the effect that the lease in favour of the appellant would not be renewed on and after 22-1-1977, the encashment of the cheque by the Commissioner in the usual course did not amount to the acceptance of the amount as rent by the Municipal Council and therefore the appellant did not become the tenant holding over and therefore he continued to be an un-authorised occupant and therefore the order made under Section 5(1) of the Act, by the Competent Authority was valid. Aggrieved by the said order the appellant preferred Writ Petition. The same contentions were urged before the learned Single Judge but were negatived. Aggrieved by the said order the appellant has persented this appeal.
8. The sole question which has been considered by the Appellate Authority and the learned Single Judge and which arises for consideration in this appeal is:—
“Whether the appellant had become a tenant holding over on and after 22-1-1977 by reason of the encashment of Cheque given by the appellant towards rent.”
9. Sri R.N Narasimha Murthy, learned Counsel for the appellant contended that even assuming that the acceptance of the rent till 25-8-1977, i.e, the date of dismissal of the Revision Petition presented by the appellant before the State Government did not amount to the acceptance of the rent by the Municipal Council as the appellant himself had secured stay order from the Government on 15-1-1977; the acceptance of rent on and after August 1977 till about March 1984 amounted to acceptance of rent by the Municipal Council and therefore the appellant became a tenant holding over and consequently unless a notice of termination of tenancy had been issued by the Municipal Council he could not be treated as an unauthorised occupant.
10. As against the above submission learned Counsel for the Municipal Council submitted as follows:
It was the Municipal Council alone which is authorised under the provisions of the Karnataka Municipalities Act, 1964 to enter into contract or create lease for and on behalf of the Municipal Council. The Administrator acting for the Municipal Council had passed the resolution dated 7-1-1977 expressly stating that the lease in favour of the appellant not to be continued after 22-1-1977. He invited our attention to Section 345(c) of the Act, which reads:—
“345.(c) No contract for the purchase, sale, lease, mortgage, or other transfer of immovable property, shall be entered into by the Municipal Commissioner except with the approval or sanction of the Municipal Council;
Learned Counsel pointed out that in view of the above Section, in order to hold that the Municipal Council had accepted the rent or continued the lease by reason of acceptance of rent it should have been accepted by the Administrator and not by the Municipal Commissioner. He also invited our attention to Rule 39 of the Rules called the Mysore Municipalities (Guidance of Officers, Grant of Copies & Miscellaneous Provisions) Rules 1966. The said rule reads:—
“39. Procedure in respect of lease, sale or auction-Save as otherwise provided in the Act, or rules, when the Municipal Council proposes to lease, sell or auction any movable or immovable property, it shall give notice of such lease, sale or auction by:—
i) affixing copies thereof on the notice board of the offices of the Municipal council;
ii) exhibiting copies thereof in all municipal reading rooms and places considered by the Municipal Council to be conspicuous within the municipality;
iii) publication in a daily newspaper having wide circulation within the municipality;
iv) by beat of drum or circulation of notice in the locality.”
He pointed out that according to above rule on each occasion after the expiry of earlier period of lease the same procedure is required to be followed and this is also the view taken by this Court in 1982 (2) Kar. L.J Short notes item No. 302. See also Jaichand v. Town Municipality, Robert-sonpet . 1976 1 KLJ at 30.
11. Section 73 of the Act, makes it clear that inter alia in relation to immovable properties belonging to Municipal Council it is the provisions of the Municipalities Act, which prevails over the Transfer of Property Act. That Section reads:—
“73. Transfer of Property may be subject to conditions.-The grant, lease, sale or other transfer of movable or immovable property by the municipal council may be subject to such conditions as the Municipal Council may specify and notwithstanding anything contained in the Transfer of Property Act, 1882, or any other law, for the time being in force, the grant, lease, sale or other transfer shall be subject to such conditions.”
In view of the undisputed facts and the clear provisions of the Act, Learned Counsel submitted that the claim of the appellant that he had become a tenant holding over was not correct.
12. We are entirely in agreement with the arguments urged for the Municipal Council. After the expiry of the lease on 22-1-1977 no fresh lease has been created in favour of the appellant in accordance with law. Further even prior to the expiry of the latest lease, the Administrator passed a resolution on 7-1-1977 expressly slating that the lease would not be renewed or continued after 22-1-1977 in favour of the appellant as the land was required for the purpose of the Municipal Council. The encashment of the cheque given by the appellant towards rent on or after 22-1-1977 during the period when there was an order of the Government staying the order of the Administrator or thereafter during the pendency of the suit filed by the appellant, did not make the appellant a tenant holding over for more than one reason. Firstly, it was the Municipal Council and in the present case the Administrator who alone had the powers to continue the lease and therefore when the Administrator had recorded in writing that the lease would not be continued, mere encashment of cheques given by the appellant in the usual course by the Commissioner constitutes no acceptance of rent by the Municipal Council after the expiry of the lease period. Therefore, the provisions of Section 116 of the Transfer of Property Act, even if applicable is not attracted to the facts of the case as rightly held by the Appellate Authority in his detailed order and which view is confirmed by the Learned Single Judge with which we respectfully agree. Further, in view of the provisions of Section 72 read with Sections 73 and 345(c) of the Act and Rule 39 of the Rules, extracted earlier unless the period of lease was extended by an express decision of the Administrator or the elected Council the appellant became and continued to be an un-authorised occupant on and after 22-1-1977 and therefore the action taken under Karnataka Public Premises (Eviction of Un-authorised Occupants) Act, 1974 was perfectly valid and therefore we find no ground to interfere with the order of the learned Single Judge.
13. Learned Counsel for the appellant however submitted that as the appellant was having his petrol bunk on the site in question for the last more than 25 years he might be given some reasonable time to vacate so that he may shift to any other place.
14. This is a matter for agreement between the parties for the reason that the authority out of whose order the Writ Petition arose itself did not have the power to give time and the time to vacate is fixed by the provisions of the Act, itself.
15. Learned Counsel for the Municipal Council, gracefully submitted that the Municipal Council would give a maximum time of six months in deference to the suggestion made by the Court to give reasonable time provided the appellant gave an undertaking to this Court to vacate the premises before that date and pays an amount equal to the monthly rent which was being paid prior to 22-1-1977 but without prejudice to the right of the Municipal Council to claim damages for the use and occupation on and after 23-1-1977 up to the date he vacates the premises.
16. At this stage Learned Counsel for the appellant filed a memo. It reads:—
The appellant aforenamed hereby gives an undertaking to this Hon'ble Court that he will deliver vacant possession of the schedule premises to the City Municipal Council, Shimoga, on or before 31-3-1987. Appellant further agrees to pay an amount equal to rent upto the date of vacating the premises.
Sd/- Advocate for Appellant.
Sd/- Appellant.
Bangalore,
Dated: 21-8-1986”.
17. Learned Counsel for the appellant submitted that the Government though dismissed the revision petition of the appellant it observed that the Municipality should consider the request of the appellant for grant of an alternate site for the purpose of shifting the petrol bunk. We make it clear that it is open for the appellant to make such a request before the Municipal Council and if such a request is made the Municipal Council should consider the said request sympathetically if suitable sites are available but this has nothing to do with the order made in the Writ Appeal. In the light of the aforesaid memo, we make the following order:
Writ Appeal is dismissed subject to the following conditions:—
i) The appellant shall vacate the premises on or before 31-3-1987 in accordance with the undertaking filed before this Court.
ii) He should pay an amount equal to the monthly rent payable for the entire period for which he has not paid the same up to the date of vacating the premises.
iii) That the acceptance of the amount equal to rent by the Municipal Council is without prejudice to the right of the Municipal Council to claim damages for use and occupation of the site in question by the appellant on and after 22-1-1977 till the date on which he vacates.