Subramanya Guptha K.S. vs Town Mun. Council, Madhugiri.

This second appeal is disposed of by the following order at the stage of admission after notice to respondent. Counsel for parties have been heard. The parties to this appeal will be referred to by the rank and position assigned to them in the trial Court.

The appellant was plaintiff in the Court of the Munsiff, Mudhugiri in O.S. No. 230/1976. The suit was for an injunction restraining the defendant-Town Municipal Council, Madhugiri from interfering with his peaceful possession of the suit schedule shop premises in which he was carrying on his business as lessee of the Town Municipal Council The suit came to be dismissed mainly on two grounds; that the municipality had power under S. 73 of the Karnataka Town Municipalities Act, 1964, (hereinafter referred to as the Act) and if the Municipality wanted to reconstruct the shop premises in the occupation of the plaintiff, it had power to do so after demolishing the shop premises occupied by the plaintiff and that no suit could be filed against the Municipality having regard to the provisions contained in S. 283 read with S. 306 of the Act. Aggrieved by the same, the plaintiff filed R.A. No. 14/1981 in the Court or the Civil Judge, Madhugiri. That appeal came to be dismissed. Therefore, the plaintiff has preferred this second appeal.

When it was pointed out to the learned Counsel appearing for the defendant-Town Municipal Council that whatever action the Municipality may take in order to develop its property, it cannot do so by resorting to the same without first getting vacant possession of the premises admittedly leased out to the plaintiff which it claimed had come to an end. Whether S. 73 of the Act gives special protection to the Municipality or Municipal Council in its contractual relations with its tenants or in respect of its powers over its property arising out of a contract of sale or lease is a matter which requires a detailed examination. Similarly, the ambit and scope of S. 283. read with S. 306 of the Act also require to be examined as to what are the suits which are barred against the Municipality. But one can confidently say without further examination that they do not preclude suits for injunction against the Municipality, when the Municipality prima facie acts without the authority of law A perusal of sub-sec. (2) of S. 284 of the Act clearly supports the view I have expressed above. Whether injunction should be granted or not in a particular case will depend on facts pleaded and proved in that particular case. But it does not mean that a suit against the Municipality is not to be filed at all, as the same S. 284 of the Act provides for notice being issued before a suit being filed against the Municipality.

A Municipality is capable of being a landlord or itself entering into commercial venture to raise funds for the Municipality, in order to augment its revenue to perform its duties and functions under the Act. Admittedly the Municipality inducted the defendant as a tenant. The power to contract does not give any right over and above what is contracted. Thus viewed the Municipality''s power as a landlord as in the instant case should be determined strictly in accordance with the terms of the contract. In that view of the matter, the Courts below were totally in error in approaching the case of the plaintiff in the manner they have done undoubtedly over-emphasising the importance of S. 73 and S. 283 of the Act.

However, Sri Shivappa, learned Counsel appearing for the Municipal Council, has filed a memo today in which it is submitted that the defendant-respondent undertakes that the petitioner will be evicted in accordance with law before any demolition takes place. Memo is recorded and the second appeal is disposed of with the observation that the Municipality shall not interfere with the peaceful possession and enjoyment of the plaintiff-appellant in respect of the premises occupied by him as a tenant of the Municipality till he is evicted in accordance with law. In other words, the Municipality is free to proceed in accordance with law to evict the plaintiff and the plaintiff is also at liberty to offer such defence as he can in such proceedings that the Municipality may institute against him.

Anything observed in the course of this order does not preclude the defendant-Municipality from demenstrating before the appropriate authority that the tenancy has ceased and stands terminated.

This Second Appeal is allowed as indicated above and the judgments and decrees of the Courts below are set aside.

There will be no order as to costs.