Kutubusab D. Choorikhan vs The Deputy Commissioner

Anand Byrareddy, J.—Heard the counsel for the petitioner and the respondent.

The present application for vacating stay coming on for orders, the petition is considered for final disposal.

It is the case of the petitioner that the Town Municipal Council, Saundatti, is said to be the owner of commercial complex attached to Yellamma Devi Temple and it had issued an advertisement on 23.01.2013 calling for bids at a public auction to be conducted in respect of 20 shops on a monthly rental basis for a period of 12 years in terms of Section 72(2) of the Karnataka Municipalities Act, 1964. It is the claim of the petitioner that an auction was held on 08.02.2013 and six persons had participated. Since there were no takers for the shops individually, it was decided by the respondents, according to the petitioner, to auction all the 20 shops in one lot as there were no persons from the reserved category, as provided in the advertisement, it was again decided to put up all the shops in General category and the deposit amount was changed to Rs. 3,00,000/- as against Rs. 10,00,000/- fixed earlier. The petitioner had therefore deposited a sum of Rs. 3,00,000/- and he was highest bidder agreeing to pay Rs. 2,00,000/- per year as rent for all the 20 shops put together. He was declared as the successful bidder. The said bid was confirmed and approved by the Deputy Commissioner. Thereafter an unanimous resolution is said to have been passed by the Town Municipal Council on 14.02.2013 as per Annexure-D to seek confirmation of the auction from the competent authority.

In the meanwhile, the petitioner was put in possession of the said 20 shops from 01.01.2013 and he is stated to be in enjoyment of the said shops and he has inducted tenants, as confirmed by a spot inspection. The Authorities have, however, refused to receive the monthly rent from the petitioner, according to the petitioner, for reasons best known to them. The petitioner claims that he is ready and willing to pay the said rents. In this background, the petitioner is now aggrieved by Annexure-E dated 20.08.2014 calling upon him to vacate and hand over the said 20 shops within three days and pay the outstanding rents amounting to Rs. 3,33,336/- from 01.01.2013 till date, so as to enable the authorities to conduct fresh auction of the said shops.

It is in this background that the petitioner had approached this Court and this Court in the first instance had granted an interim order of stay of dispossession until further orders. In the application filed by the respondent it is contended that the averments in the writ petition are mis-leading and false. It is claimed that there was no valid auction conducted in terms of the notification issued in the first instance. It was an ad hoc arrangement, whereby the petitioner was permitted to occupy the shops for a temporary period since there was already a deposit made of Rs. 3,00,000/-. Since the respondents seek that the maximum revenue be generated by the premises, it is now decided to re-auction the premises and to put the highest bidder in possession and the contentions of the petitioner are negated. In that, there is no lease deed executed in favour of the petitioner and since the lease was for more than one year, it was required to be compulsorily registered. In the absence of any such lease deed, it is not open for the petitioner to contend that there is lease for a period of 12 years. In the absence of any such evidence, it is not open for the petitioner to seek protection of his illegal possession, which has extended for over two years without payment of any rent, and therefore, seeks vacating of the interim order.

In the above circumstances, though there was an invitation for bids and the petitioner having tendered his bid, though the deposit of Rs. 10,00,000/- as was contemplated under the notification inviting bids is appears to have been modified and a sum of Rs. 3,00,000/- has been received, there is no further indication as to whether the arrangement was in terms of the notification or otherwise. The fact remains that the petitioner is in possession and he has in turn inducted other tenants into the premises. It is further admitted that no rents have been paid for the past two years i.e., from 01.01.2013 till date.

Given this circumstance and the disputed questions as to the actual terms on which the petitioner has been put in possession, it would be in the fitness of things that if the agreed rent of Rs. 2,00,000/- per year as stated by the petitioner is paid to the respondents as damages for use and occupation, if not as rent and if the respondents receive the same without prejudice, it would satisfy the interest of justice.

Therefore, the petitioner is directed to pay, as a precondition of this order, a sum of Rs. 4,00,000/- covering the period from 01.01.2013 to 31.12.2014. This payment is made for the use and occupation of the premises and not in terms of any lease arrangement, which is vague and not reflected by any formal documentation. It is by virtue of the order of this Court that the respondent No. 4 shall receive the sum of Rs. 4,00,000/- and not in recognition of any tenancy. Since the occupation of the premises by the petitioner and third parties, who have been inducted in the property at the instance of the petitioner is an admitted circumstance, the respondent shall not take any precipitative action to evict the tenants in occupation of the premises forcibly, but shall have recourse to the due process of law. The petitioner, and persons claiming under the petitioner, shall not be disturbed from the petition premises, otherwise, than under the due process of law and the further question whether the respondents can receive any consideration for the continued occupation of the premises by the petitioner and his representatives is left open. It is for the respondents to recover damages, if any, for such use and occupation in future. With that observation, the petition is disposed of.

The amount of Rs. 4,00,000/- to be paid within one week, failing which the benefit of this order would not be available to the petitioner and any person claiming under him and the respondents are free to take steps in accordance with law.

The application, I.A. No. 1/2014 is accordingly disposed of.