1 R IN THE HIGH COURT OF KARNATAK AT BANGAI ORF DATED TillS W” DAY 01 SEPTE1BFR 2011 BEFORE TIlE IIOX’BLE MR.JLSTIC’E S. IBIH L V4ZEER WRIT PETiTION NO.25929/2011 (IB-BMP) Betv een: MIs La’crni Enterprkcs. I .akshrni CompIe. No.38/3. I albagh Road. Bangalore — 560 027. Repid B> its Partner Sri ICR Saiija’ . Petitioner ‘B’ Sri K Suman. Ad’i And: I The ( omnuinncr. Bruhat Bangalote Mahanagara Pahke. Nar asnnliaraja Square. Bangalore. 2 2 The Joint Commissioner (South). Bruhit Bangalore Xiahanagara Palike, Commercial Complex Building. Cross RoHd. 11 B lock. Javanir. Bangulore. .... Respondents. (13v Sri, Abhijith A. 1-larnahaHi, Adv. For M/s Haranahalli A/S. Advs,) This Writ Petition is filed under Articles 226 & 227 of the Constitution of India, praying to quash the notice dated 4.7.2() I I as issued b\ the second respondent. ‘tc. This Writ Petition coming on for Preliminary Hearing in ‘B’ Group this da\. the Court passed the lollo\ving: ORDER In this case. the petitioner has called in question the validit\ ot the notices at Annexures ‘K’ and ‘N’ dated 4.7.2011 and 3H.7.201 I respectively issued h he 2, respondent, to restrain the respondents tmn demo I ishi ne the petitit n cchedu Ic building and for certain other reliefs. 3 2. Brief facts necessan for disposal of this ease are as under: The Ckneinnient of Karnatak€i had passed an order dated 2.6.1977 permitting the then Administrator of the Corporation ot (‘its of Bangalore (now Bruhat Bangalore 1ahanagara Palike to lease the land bearing No18/3 measunng 48 + 35/2 ft. ‘c 150 ft. l ing o er the drain on the eastern side of Lalbagh Road. Bangalore. b> holding public auction. One Sri P.C.Sudharshan sas the highest bidder in the auction. He requested the Corporation to transfer the leasehold nghts in fa4oui .t the petitioner-firm. The Go’ errnnent ol Karnataka accorded appro’ alto the \dministratoi of the Corporation to execute the lease deed in favour of the petitioner as per the order at Anne’ure V dated ‘8 7 1980 The Corporation executed a lease deed dated 24.9.1980 (Annexure SC’) tegisteted on 25.9.IQXO in ta’ae ot the petitioner far a period ot 60 >ears for the construction of a building thereon for commercial purpose. Accordinill). the petitioner has put up e.ornmercial complex on the said land On 19.5.1983. the Corporation granted 4 permission to the pctitionr to occupy the building The petitioner ecupied the said building and let out different portions of the building to sarious tenants. The BBMP has assessed the building lir the purpose of Ic’.> of property tax on the basis of the rents collected by the petitioner from the tenants. 3. The Zonal Joint (‘ommissioner iWesu of the Corporation had issued a notice dated I .4.2(X)6 terminating the tenancy ot the petitioner in respect ot the property in question. The petitioner filed a suit O.S.No.275512006 on the file of the Additional (‘ity Civil (‘nun. Bangalore. br a declaration that the notice is illegal and boi permanent injunction restraining the respondents from interfering with its peaceful possession and enjoy ment of the property. Aftei contest, the suit ‘.‘.as decreed In the trial Couit on I 1.2011 It is the ac ot the petitioner that it has paid the pi operty tax fo; the y ears 2010-2011 and 201 1-2012 Ii is furthet contended that it had hornncd loan trorn (anar. Bank. Banalore. for tonstiuction of 5 the commercial complex and has been discharging the loan in in%tallments. 4. It is further contended that petitionet has recei’.ed a notice at .\nnexure ‘IC dated 4.7.2011 ssherd> the second respondent has called upon it to show cause as to hy it should not be n icted from the land and the building constructed thereon be not demolished. The petitioner has sent a reply to the show cause nntiee as per Annexure ‘L’ dated 11.7.2011. During the pendency of the dt petition. the second respondent has issued yet another notice under Section 411) of the Karnataka Public Premise% Eiction of Unauthorised Occupantsi Act. 1974 (tor short ‘Public Premises ActJ at Annexure ‘N dated ‘0.7.2011 calling upon the petitioner to shoi cause as to h it should not be e’ icted from the petition schedule property ithin 10 dan from the date of receipt Lt the notice. The petitioner has sent a ieply to the said notice as per \nnexure .jV d ned I l.S 2(111 The Bnga1orc I Icuricit Supply Company has issued qotice as per %nnexure ‘Q dated q 9 S.201 1 inthrming the petitioner that it has to disconnect the power supply to the building in question within ji d tys from the date of receipt of the said notice Therefore, the petitioner has filed this writ petition seeking the aforesaid rcliefs. 5. 1 have heard Sri KSuman. learned Counsel for the petitionei and Sri Ahhijith A. Harnahalli. learned Counsel br the respondent-Corporation 6. 1 earned Counsel hr the petitioner submits that the State (ioicrninent passed an Order at knneure A’ dated 28.7 1980 granting permission to the Administrator ot the Corporation to lease the land in question in faour of the petitioner for a penod ot N) years \ec.ordingly. the Cotp’ ration ha’ leased the land under a deed of lease at \nnexure ‘C’ dated 24.’) 19X0 for a period ‘f 60 sears Th terms and conditions ot th. sod deed peimits the petitionu to onstruc.t a building n the land in question fri commercial purpose. It sas ak’ permitted to let out the building. 7 On the expiry of the period of the lease, the building constructed h> the petitioner will est with the Corporation flee from all cncurnhrances. Condition No. IS makes it clear that on breach of an of the conditions of the lease, the Corporation has the right to reoke the lease and resume posses’ ;Jn of the land ith the building constructed thereon notvJthstanding the un-expired period of lease and that the petitioner shall not be entitled for an> compensation in respect of the building. The land in question i a space measuring 48 + 35/2 ft. 150 ft. lying cner the drain on the eastern side of Lalbagh Road. R:’igalote The petitioner has put up construction on the %aid land as per the plan sanctioned In tht. Corporation. The Corporation has granted permission to the petitionet to oecup’ the building as per the endorsement at nnexure ‘Li dated 19 5.1Q83 The petitioner has let out difterent portions of the building to different pet sons. Thu land and the building constructed th:reon has been assessed to tat and petitionet has been paying the pioperty ta’ regularly 8 7. It is argued that the Corpor non issued a notice dated 1.4.2006 terminatinp the tenancy of tht petitioner. 1 he petitioner filed a suit O.S.No.2755/2006 on the tile of the Additional (‘its Ci’ II Judge, Bangalore. for a declaratiop that the notice is arbitrary, illegal and without jurisdiction and for permanent injunction restraining the Corporation or any body else on their behalf from interfering with its peaceful possession and enjoyment ot the said property. The suit ssas contested by the Corporation. The trial Court passed a decree on 1.1.201 I deelanng that the notice ol termination issued by the Corporation is w ithout jurisdiction. It has granted an order ot injunction re%tralning the (‘orporation 1mm intertering ss ith the petitioner’s po%session and enjoyment ot the property. Liberts was reser ed to the (‘orporation to initiate action for e’ iction of the petitioner from the piopeity in aceoidance with Liw S It is further argutd that the Corporation has again issued a notice as per Annexure b K’ dated 4 7.2011 terminating the kase 9 and directing the petitioner to demolish the building hich is not pernn’sihle in The notice Is said to hate been issued on the hais of the order ot this Court in .P.No.3 1394/2009. During the pendene> of the iit petition, the Corporation has again issued a notice dated 10.7.2011 under Section 4 1; of the Public Premises Act. It is argued that the Corporation has leased only the land ith liberty to the petitionet to put up a commercial complex thereon. rhe petitioner has put up construction in terms of the plan sanctioned b the Corporation. Petitioner is the O6 nor of the said building Theretore. the pro’ isions of the Public Premises Act does not apply to the case on hand. H there is a breach of conditions of the lease, the Corporation has to take action against the petitioner tW its e iction under Section I G. of the Transfer of Property Act, 1882. Thus. the notices impugned herein ate totally ithout jurisdiction ‘The order ol the Di’ isbn B.nch of this Court in V I’ \o.3 1 W412009 has no ipphcation to thi’ ca’e. 10 9. On the other hand, learned Counsel appearing for the respondents ‘submits that a Di isbn Bench of this court in W.P.No 31394/2009 has issued interim orders from time to time directing the Corporation to remote ali the encroachments oter storm isater drains. In the said case. the Corporation has filed an affidavit dated 3.8.2011 stating the procedure that tsould be tollotsed tor remosal of the encroachments oser the storm ater drains. Recording the said affidas it. the ss nt petition was disposed of That is wh3 the Corporation nas issued notice as per Anneure IC dated 4 7.20 I I calling upon the petitioner as to why the lease should not be terminated and the building should not be demolished. The building forms part and parcel ot the land leased to the petitioner hating regard to Section 3(17) ot the Karnataka General Clauses Act. I X9) The Corporation is also justified in initiatina action for eiction of tht. p..titsoner ftom the propert> in que%tion under the Public Premises Act as the building torms part ol the land. 11 10 It is further contended that Section 28& I) ot the Act authorises the Commissioner of the Corporation to grant licence subject to such conditions and restrictions as he may think fit to the o ncr or occupier of any premises to put tip or continue to have erandahs. balconies. sun-shade. seainer-franies and the like to project oser a street or in streets in ‘hich the constructions of arcades has been sanctioned by the Corporation to put up or continue to have an arcade or to construct an> step or drain coering necessary for access to the premises. However, no licence can be granted if the pi,jection of the or construction is likely to he injurious to health or cause public ineonenience or others ise materially interfere ssith the use of the road as such Therefore, the Corporation is lustified in issuing the impugned notices Ihecause the building has been constructed over the drain. In this tonnection. he has relied on the decision of this Court in W4.JID I’S. STITE OF £4Iec4TAc 1- ILR 1986 kAR 3679. It ;s triucd th it Section of the \ct o’s emdes the prosisions of the Public Premises Act. 12 I 1 It k argued that the leae deed has become sold due to passage of time. It is io1ati’.e of Section 23 of the Indian Contract Act. 1872 as it is opposed to public policy. In this connection, he has relied on the decision of the Apex Court in R ING.INA )AI&%M.3L4 & •IXOTHER I’S. K.S.PRAKISII (D BY LRs. & OTHERS - 2008 AIR SCW 6476. 12. It is contended that demolition of the building is absolutel> necescar> in public interest for the free flov of storm atcr ‘be 13 Having regard to the contentions urged. the first question for concideration is hether the notice at Annexure ‘K’ dated 4 “.2() I I terminating the tenancy is illegal? 14. In the notite at Annewe K’. one 01 the rea’on’ assigned thr the eviction of the petitioner is the order passed in 13 W.P.No 1394/2009. In the said case. the Chief Engineer (Storm ater Draint BBMP, Bangalore. ha filed an affidatit dated 3.8.2() 11 undertaking to remove the encroachments o er the storm water drains. Recording the said affidavit, on 4.$.20l 1. this Court disposed of the writ petition with a direction to remtne all the encroachments over the storm water drains. Needle’s to sa> that the encroachments ha’e to be remoed in accordance with law and not otherwise. In the instant writ petition. we hase to con’ider as to whether the procedure adopted is in conformity with law. 15. The other ground ctated in the notice is that the petitioner has sublet different portions of the building The lease deed at nne’iure ‘C’ e’tet.uted b3 the c orporation is a term lease for 60 >ears Under the said deed. the petitioner was permitted to use the schedule land for the construction of the building for i’rnmercial purposes. Clause I I ot the lease deed bars the petitioner trom subletting or parting with possession of the schedule land On the e’ipir> o. the period of lease, the building 14 constructed b the petitioner ests with the Corporation free from all encumbrances Clause 15 of the lease deed is as under ‘On breach of an> of the aforesaid condition, the lessor shall have the right to reoke the lease and resume possession of the schedule land ith the building constructed, if any. by the lessee thereon notwithstanding the un-expired penod of lease and the lessee shall not be entitled to any compensation in respect of the building” 16. After construction ot the building. the petitioner has let out arious portions of the building to different tenants. The Corporation has assessed the building to ta on the basis of the rents collected by the petitioner from anous tenants. The notice issued by the Corporation terminating th tenanc> vas challenged Ii> the petitioner in the suit relerred to aNne. Issue So. I framed in the suit is a under: 15 “W hether the notice of termination of tease issued by the setond defendant bearing No.BCC/LC RR 06/04 05 dated 1.4.2006 is illegal, arbitrary and ithout junsdiction?” 17. ‘While anstsering the ‘aid is’,.r. the Citit Court has held that the notice is illegal and without jurisdiction The decree ot the Cis it Court has become tinal and binding on the parties It is true that the Cnit Court has resened libert to the Corpoiation to initiate action for eiction of the plaintiff horn the property in question in accordance ith lay. 18 It is eIl established that unlike in Itngland in India there can be a dual o nership. in the sense. that the land ma betonu to onc peison ai d the buildinas theieon may bclong to anothei person. This concept ot dual oneiship sas r’cojniscd by th Prns Council in ‘sIRI) 1’,, D4S ICIII.tITY VS. J1I1NDRI 16 TI! ROY CHOWDHRY & OTHERS — :111? 1927 PRJIT CO(\CIL 135. as under: “The maxim which is found in Eneli\h law, viz, “quicquid planiatur solo, SOLO cedit . has at the most only a limited application in India. Iire is nothing in the la s or Customs of India, to shos an traces of the existence of an\ absolute Rule of La that hateser is itself.” (emphasis supplied h\ me) I 9. In Dr,k.A,DHAIRYA fl 1.V & OTHERS I S. J.R.TIL4KL’R & OTHERS — AIR 195S SC 769. the Apex Court v as considerin the eviction of a tenant under the Bomha\ Rents, lintel and Lodging House Rates Control Act. 1947. In the said case, the appellants as trustees of the \Iankesh ar Temple. c\euted a ixcistcred iCde in fa\ our of tile rcspondIlt. a llerchy the\ demised a parcel of the land. The ease was for twent\ -one 17 \ears. Under the terms of the lease, the lessee had to construct s ithin sk months from the date ot the lease a double store> ed buildine consisting of shops en the ground floor and residential rooms on the upper floor. on termination of the lease, either at the end of the twenty-one sears or earlier, the lessee was to surrender the demised premises including the building with its fixtuies and appurtenances to the lessors without an compensation for the same. Shortly before the lease was to e”pire. the appellants gate notice to the respondents to deli’ter possession of the demised premises and the building on the epiry of the lease. After examining the tarious clauses of the lease, the kpex Court found that in none of them has it been positiiel> stated that the building to be erected on the demised land would be in the ownership of the lescoi s. I ‘nder the law. there w a’ no ir’ediment in the way of the parties to ha’e had a clause, in a positi’e t’nrrn. to that eftect. In the ihsenct. of such i clause in the lease. w htthei it ‘in ‘x said that there had also been a demise of’ the huildiin. The Supreme Court found that the schedule to the lease speeit’icall mentions that the 18 land had been demised and there is no mention therein that the building when constructed thereon would also form part of thc demised property. Taking into account these factual aspects, the Apc court held as under: In 1927. when the lease was ececuted the Act was not in existence and it may reasonably be said that none of the parties had ever in contemplation that the Act or any thing akin thereto would become law in the future affecting the rights of the parties undet the lease. The sarious clauses of t.hn lease are consistent with the ow nership in the building being with the lessees in which the lessors had no right while the lease subsisted. In the case of Vannan I)as Is. Jatindra Karl, 54 bad pp 21k (4IR 19r PC’ 1 35, g’lj the Priy Council approved the obsenations of Sir Barnes Peacock in the case of ThaAt’’r Chundel Pt ‘reilnanit ‘A I s. Rumdln’ 1 ,’ BhIgttcft‘har,ec 6 .Suth WI? 22’s ‘B, to the tollowing effect “We have not been able to rind in thc laws or customs of this country any traces of the — —...—. . -a... ... f.t..—— a&. %?4•..... t. _t’. 19 existence of an absolute rule of law that whatever is aftixed or built on the soil becomes a part of it. and is subjected to the same ‘rights of property as the soil itseir. In the case of Va!labhdas Naranji Vs. Development Officer, Bantlra. 56 Intl App 259: fAIR 1929 PC 163 (C the Privy Council once again referred to Sir Barnes Peacock’s observation as stated above. The Privy Council also quoted the following observation of Counch, C.J., in the case of Naroyan Vs. Bholagir, 6 Born BC (AC) 80(D): We cannot, however, apply to cases arising in India the doctrine of the English law as to buildings, viz., that they should belong to the owner of the land. The only doctrine which we can apply is the doctrine established in India that the party so building on another’s land should be allowed to remove the materials.” 20. In cHANrnu Bid VS. TUKARAM - 1977 (1) KU 270, this Court was considering the eviction of a tenant under I I) . ._.. S.. t...t - ZflJ. •1fl. . .. .. . —. 20 Section. 2 H I ‘U’ of the Karnataka Rent Control Act. 1961 In the said case, the petitioner was the owner of an open site. He leased the site to respondent No. I. Respodent No.1 constructed a building worth Rs.40() and agreed to put up a structure worth Rs.600. The lease period was 15 )ears. The lessee agreed to hand oer possession of the building without taking money at the end of the term, and not to mortgage or sell the building or alienate the building. Respondent No. I had ‘blet certain rooms in the building to respondent Nos.2 and I This Court held that the demised premises was only the open ‘ite and as such the lease of the two rooms to respondent No.2 and 3 did not amount to subletting 21. In 1LG.IIIREMATH & ANOTHER 33. I.KRISH’s t.PPA — hR 1978 ILIRXITAKA 13. this Court has held that there may be separation of the owntrship of the buildm& from the ow nership of the land. and there i no rule of law that 21 shateer is affixed or built on the soil becomes a part of it and is subjected LI) the same rights of property a the soil itself. 22. In WEST’S P-ITENT 2ESS (‘0. LTD. 1 ‘sI) :1.VOTIIER VS. GOVINDNAIA GURL’i’s.1TH.V4IK AALGHATGI & OTHERS - AIR 1984 VOC 274 (K IR.’s.IflK-U. this Court has held thai in a building lease, if the tenant built on the open site leased to him, then, bs vixtue of the doctrine of dual o nership, h.. ould have the ownership of the building, and ii he let out the building. it would not amount to subletting of the lease-hold property. for the lease-hold property “as only an open site. 2. In BALL’ 31 IL P. SETH VS. (IRIYIPPA — ILR 1991 EAR 1256. this Court ct.nsidering the protection a’ailable to sub tenants inducted b tenant ith npt ‘ss consent of landloid In this case, a acant site let out h die landlord in Ln our of respondent No.4 for a period of 20 sears on a monthly rental ot 22 Rs 200/-. The lease deed proided that the tenant shall construct a building according to the plan got sanctioned by the (‘orponition. The building was to be constructed by the tenant at his own expense. and apart from the pound floor and the first floor as shown in the plan. the tenant was at lihert’ to construct othet storey thereon and use it tor himsdf w 1 d for others at his instance according to his con’enience. After the c’cpiry of 20 years. the tenant was to dcli’er possession of the building as it then stood with atleast the ground floor and the first floor. The landlord ga e notice to the tenant as also to the sub-tenants calling upon them to hand o er sacant possession of th: building on 6.1 .1986 a the term ot 20 years was to expire on that day. Since the tenant and the sub- tenants did not ‘acate the premises. the landlord tiled a petition to, c iction on arious grounds Relying on the decision in DrJt4.DIIAIRY4W4X\ case supra’. this Court has hcld Js under 23 “Applying the principles laid down by the Supreme Court to the facts of the instant case. all that can be said is that the landlords in ew of the contract became the owners of the super-structure on the expiry of the term of the lease, and if they so desired, could recover rent from the sub-tenants. However, for seeking eviction of the tenants, they have necessarily to resort to the procedure laid down in the Karnataka Rent Control Act, which they have done in the instant case. They have therefore to ir’ke out a ground for eviction of the occupants from the premises in question. The decision in DrDhairyawan’s case can be of no assistance in deciding whether in pursuance of the decree for eviction passed against the tenant. the sub-tenant can also be evicted with the aid of Section 30 of the Act, because the status of the sub-tenants inducted by the tenant ii not fall for con%ideration before the supreme Court.” 24. The Apex Court in £4 TAN LAL lAiN & OTHERS VS. LIMA SHANKAR WAS & OTHERS - (2O02) 2 SCC 656, has considered a similar question. It has been held as under: I 24 ‘6. Clause (h) of Section 108 of the Transfer of Property Act, 1882 confers a right on the lessee to remove either during or even after the determination of the lease, at any time whilst he is in possession of the property leased but not afterwards, all things which he has attached to the