Judges Cannot Act Like ‘Mughals’ Of Bygone Era; Writ Courts Cannot Transcend Barriers Of Law: Karnataka HC
The Karnataka High Court remarked that the Judges cannot act like ‘Mughals’ of bygone era and that the writ courts cannot transcend the barriers of law.
The Court remarked thus in an appeal filed by City Municipal Council, challenging the order of the Single Judge by which a person’s writ petition was favoured and relief was granted to him.
A Division Bench comprising Justice Krishna S. Dixit and Justice Ramachandra D. Huddar observed, “The learned Single Judge could not have lightly construed such an instrument of law to the prejudice of public interest and conversely to the advantage of a private citizen. No writ can be issued in derogation of law. Writ Courts in the guise of doing justice cannot transcend the barriers of law, to say the least. Obviously, they cannot arrogate to themselves the extraordinary power vested in the Apex Court of the country under Article 142 of the Constitution. After all, we are Judges and therefore, cannot act like mughals of bygone era. More is not necessary to specify.”
Advocate A.V. Gangadharappa appeared for the appellant while Senior Advocate Jayna Kothari appeared for the respondents.
Brief Facts -
The appellant, being a Local Body established under the provisions of the Karnataka Municipalities Act, 1964, issued a notification, calling for applications for the grant of lease of certain shopping premises by way of public auction. The respondent person having 80% locomotor disability got an order whereby the Commissioner for Persons with Disabilities had directed the appellant/municipality to allot one shop premises as provided under the erstwhile Persons with Disabilities Act, 1995 read with The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) (Karnataka) Rules, 2003 {Now this is re-enacted as Rights of Persons with Disabilities Act, 2016}. Such order was unsuccessfully challenged by the appellant and the same was dismissed by the Single Judge. In the appellant’s appeal, a Co-ordinate Bench of the High Court whilst partly allowing the same, directed the allotment of one shop premises at a concessional rate i.e., with a rebate of 20% of the amount of auction whereby two others were allotted the adjoining shops.
The allottee filed an SLP (Special Leave Petition) wherein vide an interim order, the appellant was directed to deliver the shop withing four weeks on a monthly rent of Rs. 1,500/-, keeping open the question of deposit and compensation. Later, the said SLP was disposed vide final order with a direction that the respondent shall pay Rs. 1,500/- as monthly rent and Rs. 1,50,000/- as deposit. In the meanwhile, the Municipal Commissioner allotted one shop to the respondent and via notice, he was directed to get a registered lease of premises for a period of 12 years, failing which his deposit would be forfeited. The challenge to the same was favoured whereby, the direction was given for elongating the lease period to 20 years. Hence, the appeal was preferred by the appellant before the Division Bench.
The High Court in view of the above facts said, “As already mentioned above, it is the Municipality to which the shopping complex belongs. As the owner, it is entitled to deal with its property in any way it wants, subject to regulation by the law. We have already seen above the provisions of Section 72 of the 1964 Act and the Government Circular of 2009 issued under its Sub-section (2) prescribing a maximum period of twelve years for transfer by way of lease.”
The Court added that such period is prescribed as being the maximum and therefore, the discretion to make an allotment for a shorter period does not give the allottee a cause of action in law, discretion to do it remaining with the Municipality.
“However, that discretion has to be exercised in accordance with rules of reason & justice, is true. A lease being a matter of contract, Courts cannot rewrite the same, in the absence of statutory enablement, kind of which avail in Labour Legislations. That being the position, impugned order of the learned Single Judge directing extension of the lease tenure suffers from legal infirmity and therefore, is liable to be voided”, it held.
The Court further noted that some reprieve needs to be granted to the widow of deceased respondent so that she can shift her business to some other premise within a reasonable period.
“There is a huge residential building which now on the death of respondent has devolved upon his widow & children. They are residing in a part of that and obviously the remaining part is tenanted to some other person. Business is being run in the subject shop. If the widow is asked to vacate the same forthwith, she & the minor children may be put to a great hardship. Some reasonable period to vacate the shop premises needs to be granted so that business can be shifted to some other place. The Municipality and such other authorities view the claim of allottee’s widow for issuance of license/altered license with leniency to facilitate such shifting”, it said.
The Court permitted the heir of the deceased respondent i.e., his widow to remain in the occupation of shop till December 31, 2024, subject to complying with the usual conditions of allotment and that she shall peaceably quit the premises on or before the said date, failing which, the appellant-Municipality can take the premises back with the assistance of jurisdictional Police.
Accordingly, the High Court allowed the appeal and set aside the impugned order.
Cause Title- City Municipal Council v. Siddaramu @ Ramu & Anr.
Appearance:
Appellant: Advocate A.V. Gangadharappa
Respondents: Senior Advocate Jayna Kothari and Advocate Naveen Chandra.
