ORDER
The Court
1. These writ petitions are filed by the petitioners claiming that they are in possession of the house properties mentioned in their respective petitions which are situated on the First Main Road, Gandhinagar presently in Corporation Ward No. 27 seeking for issuance of a writ of mandamus directing respondent-Corporation not to enter upon their respective properties on First Main Road, Gandhinagar and not to de-
molish the structure put up without due process of law in some petitions. In some petitions they have sought for direction to the first respondent to allot the area falling under conservancy lane prescribing their respective premises by considering their representations in accordance with law, urging various legal contentions.
2. These petitions are heard together as the facts, grounds and the prayer sought for by them are common and the legal question that would arise for consideration of this Court is one and the same. After hearing the learned Counsel for the parties, at the preliminary hearing stage, the following order is passed on merits.
3. The petitioners in the first batch of petitions in Writ Petition Nos. 20959 and 20960 of 2001 have contended that they are in lawful possession of respective premises pursuant to lease deed dated 16th February, 1954 executed by respondent-Corporation in favour of the fathers of petitioners, pursuant to the said lease deed they have been in possession and put up structures and are in enjoyment of the same. They have also paid the taxes to the Corporation in respect of the properties in question as per the documents produced by them in these petitions. Learned Counsel for petitioners in these petitions Mr. Gowrishankar submits that, the premises in question is a public premises as defined under Section 2(e) of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974 (in short ‘the Act of 1974’) and therefore submitted that provisions of the Act are applicable to the facts of these cases. Even assuming for the sake of argument that the occupation of the petitioners in respect of the property in question after efflux of time mentioned in the lease deed has expired, first respondent-Corporation has got a statutory obligation for issuing show-cause notice affording opportunity to the petitioners to state their case and thereafter conduct an enquiry and pass appropriate orders as contemplated under Section 5 of the Act of 1974 and thereafter, the possession of property in question should be recovered with due process of law. In support of this submission the learned Counsel have placed strong reliance upon the judgments of the Apex Court in the case of Ashoka Marketing Limited and Anr. v. Punjab National Bank and Ors. and judgment of this Court in C. Bhaskar v. State of Karnataka and Ors. and M.R.S. Ramakrishnan v. The Assistant Director of Ex-servicemen Welfare (District Soldiers, Sailors and Airmen Board), Tiruchirapalli and Ors., in support of the proposition that Corporation is not entitled to take law into their own hands and evict the petitioners forcibly without following the procedure contemplated under the provisions of the Act of 1974.
4. The petitioners in the connected writ petitions further contended that the contentions taken on behalf of respondent-Corporation that they have got power under Section 288D of the Karnataka Municipal Corporations Act, 1976 (in short ‘the Act of 1976’) to evict them without
notice to the unauthorised occupants cannot be invoked and exercised in view of specific substantive right conferred upon the petitioners under Sections 4 and 5 of the Act of 1974 contending that the said provisions of the Act are special provisions and that Act would prevail over the provisions of the Act of 1976. Therefore, exercise of power under Section 288D of the Act which power confers upon either Commissioner or his delegated authority without notice to the petitioners to remove the encroachment upon the property, either the structure or fixture which is erected in contravention of provision of Section 288A of the Act and further contended that premises in question do not fall within the definition of either ‘public place’ or any ‘public street’ as asserted by the respondents. Therefore, question of contravention of Section 288D by the petitioners does not arise and therefore the respondents shall not invoke their power under the said provision to remove the alleged obstruction of the petitioner from the premises is wholly untenable in law. Therefore, it is contended that the action of respondent-Corporation in trying to forcibly evict these petitioners from the property in question without following due process of law as provided under the provisions of Act 1974 is in violation of statutory rights conferred upon the petitioners under Sections 4 and 5 of the Act of 1974 read with Rule 6 of the relevant rules and the said action of the respondents is arbitrary in nature as it is violative of Article 14 of the Constitution of India. First respondent being statutory Corporation is expected to follow the rule of law which is the basic feature of Constitution and the fundamental right guaranteed to the petitioners. Therefore, the learned Counsel for the petitioners have vehemently submitted that the petitioners are entitled for grant of the reliefs as prayed for in these writ petitions.
5. The learned Counsel Mr. Nataraj appearing on behalf of petitioners in Writ Petition Nos. 20968 to 20970 of 2001 and rest of writ petitions submits that the petitioners have been in lawful possession of the property for over a long spell of period they shall not be evicted as they are in settled possession of the property keeping in view the law declared by Privy Council in the case of Midnapur Zamindary Company Limited v. Kumar Naresh Narayan Roy and Ors., holding that “in India forcible possession of persons who are in settled possession is not permitted” without following the procedure required to be followed under Sections 4 and 5 of the Act 1974 read with relevant rules. This mandatory procedure has not been followed by the respondents under the guise of exercise of power by the Corporation under Section 288D of the Act of 1976 which exercise of power without issuing notice to the petitioners is arbitrary in nature and without jurisdiction. Hence, Mr. Nataraj, Counsel for the petitioners in some of these petitions submitted that the petitioners are entitled for grant of relief sought for in the writ petitions in which he has prayed.
6. Heard the learned Counsel for the petitioners Mr. Gowrishankar and Mr. Nataraj and the Counsels appearing on behalf of Corporation Sri Ashok Harnahalli and Sri Muniyappa. They have filed counter-statement contending that the provision under Section 288D is a general provision contained in the Act of 1976 and it is later enactment to the Act of 1974 and therefore the said general provision of the Act of 1976 would prevail over the statutory right conferred upon the parties who are governed by the provisions of Act of 1974, when there is conflict between two statutes. In support of the above said proposition of law declared by the Apex Court they have placed reliance upon the judgment of the Apex Court in the cases of Ajay Kumar Banerjee and Ors. v. Union of India and J.K. Cotton Spinning and Weaving Mills Company Limited v. State of Uttar Pradesh and Ors. Further it is contended by the learned Counsel on behalf of the respondents placing reliance upon the said cases general provisions of the Act of 1976 applies only to such cases where the Act of 1974 are not covered by special provision. Rule applies to resolve conflict between different provisions and different statutes as well as statutes.
7. In this regard, the Apex Court, in the case stated supra J.K. Cotton Spinning and Weaving Mills Company Limited, at paras 9 and 10 has elaborately laid down the law. Therefore, learned Counsel on behalf of the respondents submits that, Section 288D is the power conferred upon the Commissioner in respect of removal of either encroachment and erection of structure in respect of “public place” or “public street”. The Corporation has got a statutory duty to comply with removing of either unauthorised occupation or encroachment upon such places referred to supra. Therefore, the learned Counsel for the Corporation prayed for dismissal of the writ petitions contending that the petitioners have no legal and statutory rights in respect of the property in question for grant of the reliefs. It is further contended by them that representations submitted by the petitioners in the connected petitions are not required to be considered by the Corporation for grant of relief as prayed in their representations as the petitioners have no existing statutory and legal right and therefore there is no corresponding statutory duty cast upon the Corporation for considering the representations of the petitioners. It is contended by the respondents Counsel that even assuming for the sake of argument that petitioners have got statutory right under the special enactment namely Act of 1974 and law applicable to the cases upon which reliance is placed by the petitioners Counsel as cited to supra in this order while referring to the legal submissions on behalf of the petitioners, the Corporation has got power under Section 288D of the Act for either removal of encroachment or occupation in respect of public premises. As could be seen from the documents produced by them particularly in the first batch of writ petitions there is a recital in the document at para (1) of the lease deed that the period of
lease is for three years with effect from the date of execution of lease deed and further petitioners have not produced any document to show that they had authority as required in law to continue in occupation of the conservancy lane which is the subject-matter of these petitions, after efflux of original time granted in the lease deed. Further, it is contended by the respondents Counsel that petitioners are not entitled for the discretionary relief at the hands of this Court in these cases as they have been in unauthorised possession as the original period of lease has expired by efflux of time and in the absence of documents to show that the petitioners have been continued in possession of their respective premises under the authority in law and therefore their unauthorised occupation and encroachment shall be removed by the Corporation in exercise of its power under Section 288D of the Act of 1976 and the petitioners are not entitled to take statutory protection under the provisions of the Act 1974 in view of the law laid down by the Apex Court in the case of Ashok Caterers v. Municipal Corporation of Greater Bombay (BEST Undertaking), at paras 4 and 5, further they have put up structures without obtaining necessary sanctioned plan and licences from the Corporation as required under the provisions of the Act 1976 and Bye-laws, thereby the petitioners have violated rule of law. In this view of the matter, they have prayed for dismissal of the writ petitions with exemplary costs. The petitioners Counsel in W.P. No. 21829 of 2001 submits that, there is no lease deed in respect of property in question and in respect of other petitioners, lease deed has been executed.
8. After hearing the learned Counsel for the petitioners, it is relevant for this Court to examine the rival contentions urged by the parties with reference to the pleadings and documents produced by them and provisions of the said Acts. Section 288A of the Act of 1976 prohibits structures or fixtures which cause obstruction in public streets. Section 288B prohibits deposits etc., of things in public street. Section 288C provides for granting of licence for sale in public places and Section 288D authorises either the Commissioner or his delegated Authority to remove encroachment upon either ‘public place’ or ‘public street’ without notice to the encroachers upon such property of the Corporation.
9. It is an undisputed fact that property in question is a public premises as defined under Section 2(c) of the Act of 1974 for the reason that, first respondent is statutory Corporation which came into existence under the provisions of the Act of 1976. Section 2(g) of the Act of 1974 defines an ‘unauthorised occupant’ as a person who is in unauthorised occupation in relation to any public premises, such occupation without authority of law.
10. With reference to the aforesaid provisions of the Acts of 1974 and 1976, the claim of the petitioners is examined by this Court with reference to their legal submissions. Except the petitioners in W.P. Nos. 20959 and 20960 of 2001, the other petitioners have not produced any
lease deed to show that they have been in occupation of the respective premises under the authority of law. However, the petitioners in Writ Petition Nos. 21829 and 22022 of 2001 have produced memos stating that the lease deed has been executed by the parties on 8-1-1954 and on different dates in case of other petitioners. The right claimed by the petitioners based on the memos in support of the claim of the petitioners they have been in possession of their respective premises as lessees is seriously disputed by the Corporation Counsel. The undisputed fact in all these petitions is that, the property in question is conservancy lane. The definition of ‘public street’ is as defined under Section 2(31) of the Act of 1976 which reads thus:
“Power to require owner to carry out certain works for satisfactory drainage.–For the purpose of efficient drainage of any premises, the Commissioner may, by notice in writing.-
(a) require any courtyard, alley or passage between two or more buildings to be paved by the owner or owners of such buildings with such materials and in such matter as may be approved by the Corporation, and
(b) require such paving to be kept in proper repair”.
11. In the case of petitioners in the first batch, there is a specific clause in the lease deed produced by them wherein it has been stated that, lease period in respect of the premises which they claim right is for three years with effect from the date of execution of the same. In view of a law declared by the Constitution Bench of the Apex Court in Ashoka Marketing Limited’s case, i.e., the case cited supra, the contention of the respondent-Corporation that premises falls under definition of Section 2(c) of the Act and after the Act of 1974 came into force, the provisions of the said Act are attracted to the immovable properties of the first respondent-Corporation. It is an undisputed fact that, except the provisions under Sections 4 and 5 of the said Act to evict the unauthorised occupants from the public premises as defined in terms of Section 2(c) of the Act, there are no other provisions under the provision of the Act of 1974 to evict such unauthorised occupants who are in unauthorised occupation in the premises as defined under Section 2(g) of the Act of 1974 without issuing notice. The power to remove encroachment of the conservancy lane, which is also a public street as per the definition of Section 2(31) of the Act is very much available to the Commissioner under Section 288D of the Act of 1976 which reads thus:
“The Commissioner may without notice remove encroachment.–Notwithstanding anything contained in this Act, the Commissioner may, without notice, cause to be removed-
(a) any wall, fence, rail, step, booth or other structures or fixture which is erected or set up in contravention of the provisions of Section 288-A;
(b) any stall, chair, bench, box, ladder, bale, or any other thing whatsoever, placed or deposited in contravention of Section 288B;
(c) any article, whatsoever, hawked or exposed for sale in any public place or any public street in contravention of Section 288C and any vehicle, package, box, board, shelf, or any other thing in or on which such article is placed, or kept for the purpose of sale”.
12. It is an undisputed fact that there was lease deed executed in the year 1954 in favour of the petitioners in the first batch of petitions as contended by them. The respondents seriously disputed the execution of the lease deeds in favour of the other petitioners by the Corporation stating that if that were to be there it would have been for a limited period, and after efflux of time as specified in the deed they have not been given any authority to continue in occupation of the premises. The petitioners have not produced any document to show that they had authority to continue in occupation as required in law. Even in respect of petitioners in Writ Petition Nos. 20959 and 20960 of 2001 as per Annexure-A the lease deed, immediately after expiry of three years their occupation in the premises in question is unauthorised one. Therefore, they are unauthorised occupants in view of Section 2(g) of the Act of 1974.
13. The legal contention urged by the petitioners Counsel is that the petitioners have got statutory right under Sections 4 and 5 of the Act of 1974 read with relevant rules under the Act that first respondent-Corporation has got statutory duty to issue show-cause notice, afford opportunity to the petitioners, thereafter conduct an enquiry, record a finding and pass an order under Section 5 of the Act 1974 and further has got power to execute the orders under the provisions of the Act and Rules referred to above. No such proceedings have been initiated in the instant case. Therefore, the petitioners Counsels have contended that they are entitled for the reliefs as prayed in these petitions. This contention of the learned Counsels for the petitioners cannot be accepted by this Court in view of Sections 288-A to 288-D of Chapter XIV of the Act of 1976, as the said general provisions of the Act would prevail over the provisions of the Act of 1974. The above said legal position has been clarified by the Apex Court in the case of J.K. Cotton Spinning and Weaving Mills Company Limited, supra (paras 9 and 10), which are extracted hereunder:
“9. There will be complete harmony however if we hold instead that Clause 5(a) will apply in all other cases of proposed dismissal or discharge except where an inquiry is pending within the meaning of Clause 23. We reach the same result by applying another well-known rule of construction that general provisions yield to special provisions. The learned Attorney-General seemed to suggest that while this rule of construction is applicable to resolve the conflict between the general provision in one Act and the special provision in another Act, the rule cannot apply in resolving a conflict between general and special provisions in the same legislative instrument. This suggestion does not find support in either principle or authority. The rule that general provisions should
yield to specific provisions is not an arbitrary principle made by lawyers and Judges but springs from the common understanding of men and women that when the same person gives two directions, one covering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier directions should have effect. In Prethy v. Solly, quoted in Craies on Statute Law at page 206, 6th Edition Romily, M.R., mentioned the rule thus:–“The rule is that whenever there is a particular enactment and a general enactment in the same statute and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply” “.
14. The said legal position is further reiterated by the Apex Court in another case in Ajay Kumar Banerjee, supra, at paragraph 38 in the case of Ajay Kumar Banerjee, supra, the relevant portion of paragraph 38 is
extracted hereunder:
“As mentioned hereinbefore if the scheme was held to be valid, then the question, what is the general law and what is the special and which law in case of conflict would prevail would have arisen and that would have necessitated the application of the principle “Generalia specialibus non derogant”. The general rule to be followed in case of conflict between two statutes is that the later abrogates the earlier one. In other words, a prior special law would yield to a later general law, if either of the two following conditions is satisfied:
(i) The two are inconsistent with each other,
(ii) There is some express reference in the later to the earlier enactment.
If either of these two conditions is fulfilled, the later law, even though general, would prevail”.
15. Therefore, the contentions urged by the learned Counsel that the petitioners have got statutory rights under the provisions of Sections 4 and 5 and the rights accrued in their power under the Act shall prevail over the general provisions of the Act 1976 cannot be accepted as the same are wholly untenable in law for the reason that conservancy lane is a public street in terms of Section 2(31) of the Act of 1976 referred to supra and therefore the legislature have conferred power upon the Corporation under the provisions of Section 288D of the Act to remove encroachment of the public street by any person without issuance of notice, conferment of this power upon the Corporation is in the public interest.
16. The Corporation has got the statutory duty to general public including residents of the Corporation under the provisions of the Act of 1976 to remove such unauthorised occupants or their encroachment including structures built upon the conservancy lane by any person including the petitioners. Otherwise, the Corporation would be subjected to the litigation that can be initiated by the public at large for the inaction of the Corporation in not discharging their statutory duties of removing unauthorised occupation or encroachment of public street claiming the damages against the Corporation for infringement of their fundamental and statutory rights before the competent Civil Court or this Court, for the inaction on the part of respondents in not taking appropriate action for removal of the unauthorised occupation and encroachment of the conservancy lane by the petitioners including the structures put up by them, this Court has to examine and interpret the provision of Section 288D of the Act of 1976 keeping in view the definition of public street as per Section 2(31) of the Act of 1976 and also the law laid down by the Apex Court in the cases referred to supra. The petitioners claim that they are entitled for grant of issuance of a writ of mandamus to respondent-Corporation and its employees directing them to take possession of the property in question with due process of law contending that they have been in possession and enjoyment of their respective premises cannot be taken away by forcible dispossession without following the due process of law, as the same is not only opposed to law and blatant violation of rule of law. Their contention that their possession is settled possession and therefore they shall not be dispossessed forcibly in support of the contentions the learned Counsel have placed reliance upon the judgments of the Apex Court in the case, of Lallu Yeshwant Singh (dead) by L.Rs v. Rao Jagadish Singh and Ors., Midnapur Zamindary Company Limited’s case, supra, and other judgments which are referred to in the Division Bench judgment of this Court in the case of C. Bhaskar, supra, and therefore it is urged that they shall not be evicted forcibly from their respective premises in view of the law declared by Privy Council and the Apex Court upon which the reliance is placed by the petitioners cannot be accepted by this Court in view of the law laid down by the Apex Court in the judgments referred to supra and in view of the finding recorded by me in the earlier paragraphs of this order holding that respondent-Corporation has got power under Section 288D of the Act without resorting to the provisions of Sections 4 and 5 of the Act of 1974 and Rules thereunder, and evict, remove their unauthorised occupation and encroachment without issuance of notices to the petitioners for the reason that between these two Acts general provisions, under Section 288Dof the Act of 1976 must prevail over the special provisions of the Act of 1974.
17. Further, even accepting the case of the petitioners that they are governed by the provisions of Sections 4 and 5 of the Act of 1974 and the relevant rules this Court has examined this contention with reference to Section 2(g) of the Act of 1974, the documents produced by the petitioners and also taken into consideration the pleadings of the parties. By a close reading of Section 2(g) of the Act of 1974 it makes clear that after expiry of lease period from 1954, the petitioners who are relying upon the lease deed and other petitioners are unauthorised occupants and have no authority in law to continue in occupation of the premises in question. Even they have not obtained necessary authority of licence from the Corporation. Therefore, the petitioners are all unauthorised occupants of their respective premises including the structures if any on the basis of the available records produced by the petitioners before this Court. Therefore, the question of conducting an enquiry to evict the petitioners from the premises in question is only a formality as they are all in unauthorised occupation for over the decades and therefore they are not entitled to the protection under Sections 4 and 5 of the Act 1974. The Corporation has slept over the matter without taking steps for their removal from the premises as they have been in unauthorised occupation and encroachment of the public street. It should have taken action long long back against the petitioners for their removal from their encroachment from the public street thereby public would have access to the public street and now the Corporation is contemplating to take action for removal of the encroachment of the premises which action of the respondents shall not be interfered with by this Court in exercise of its extraordinary and discretionary power under Article 226 of the Constitution of India keeping in view the larger interest of residents of the area in question. Therefore, the contention of the petitioners’ Counsel that enquiry is required to be conducted under Sections 4 and 5 of the Act for the eviction of the petitioners after issuing show-cause notice is wholly untenable in law and therefore the same cannot be accepted. The Corporation should initiate proceedings for recovery of damages against the petitioners as provided under Section 7 of the Act of 1974 for the period for which it is entitled in law, the proceedings shall be initiated by the Corporation under the provisions of the Act of 1974 against the petitioners within four weeks from the date of receipt of this order.
18. For the reasons states supra, the petitioners must fail. Accordingly, these writ petitions are dismissed. It is open for respondent-Corporation to take appropriate action against the petitioners by initiating proceedings to recover the damages from the petitioners as directed by this Court for having occupied the premises in question unauthorisedly after expiry of original period mentioned in the lease deed in respect of some petitioners and in respect of other petitioners they have been in unauthorised occupation as they have not produced any document in support of their claim to show that they are in lawful possession of their respective premises with authority of law.
19. After dictating the order, it is prayed by the learned Counsel for the petitioners that the operation of this order may be stayed for a period of 10 days. Counsels for the respondents are also heard in this regard they have opposed for grant of stay. Having regard to the facts and circumstances of the case in the interest of justice, the order passed in these writ petitions is stayed for a period of 10 days from today.