Karnataka High Court
M/S Rashi Developers vs The State Of Karnataka on 17 December, 2024
Author: Krishna S Dixit
Bench: Krishna S Dixit
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WP No. 34199 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF DECEMBER, 2024
PRESENT
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
AND
THE HON'BLE MR JUSTICE C M JOSHI
WRIT PETITION NO. 34199 OF 2024 (KLGP)
BETWEEN:
1. M/S. RASHI DEVELOPERS,
REGISTERED PARTNERSHIP FIRM,
OFFICE AT NO.C-205, 2ND FLOOR,
HOUSE OF LORDS, ST. MARKS ROAD,
BANGALORE - 560 001,
REPRESENTED BY ITS PARTNER,
SHIVAKUMAR C. UDASI,
S/O CHANNABASAPPA M. UDASI,
AGED ABOUT 55 YEARS.
2. S. RAMANA PRASAD REDDY,
Digitally S/O G. SRINIVAS REDDY,
signed by
NANDINI R AGED ABOUT 63 YEARS,
Location: MANAGING PARTNER,
High Court M/S. RASHI DEVELOPERS,
of Karnataka
OFFICE AT NO.C-205, 2ND FLOOR,
HOUSE OF LORDS, ST. MARKS ROAD,
BANGALORE - 560 001,
REPRESENTED BY HIS GPA HOLDER,
SMT. JEEVITHA R REDDY,
D/O S. RAMANA PRASAD REDDY,
AGED ABOUT 36 YEARS.
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WP No. 34199 of 2024
3. SHIVAKUMAR C UDASI,
S/O CHANNABASAPPA M. UDASI,
AGED ABOUT 55 YEARS, PARTNER,
M/S. RASHI DEVELOPERS,
OFFICE AT NO.C-205, 2ND FLOOR,
HOUSE OF LORDS, ST. MARKS ROAD,
BANGALORE - 560 001.
...PETITIONERS
(BY SRI. UDAY HOLLA, SENIOR COUNSEL A/W
SRI. SANDEEP LAHIRI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY SPECIAL PUBLIC PROSECUTOR,
ATTACHED TO SPECIAL COURT FOR LAND
GRABBING PROHIBITION IN KARNATAKA,
3RD FLOOR, KANDAYA BHAVAN,
KG ROAD, BANGALORE - 560 010.
2. MATHRU FOUNDATION TRUST,
AT NO.130/128, 8TH MAIN,
40TH CROSS ROAD, REDDY EXTENSION,
BANGALORE - 560 066,
REPRESENTED BY SMT. NAGARATHNA.
3. THE TAHSILDAR,
BANGALORE SOUTH TALUK,
KANDAYA BHAVAN, GROUND FLOOR,
KG ROAD, BANGALORE - 560 009.
4. REVENUE INSPECTOR,
THAVAREKERE, BANGALORE SOUTH TALUK,
KANDAYA BHAVAN, GROUND FLOOR,
KG ROAD, BANGALORE - 560 009.
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WP No. 34199 of 2024
5. TALUK SURVEYOR,
BANGALORE SOUTH TALUK,
KANDAYA BHAVAN, GROUND FLOOR,
KG ROAD, BANGALORE - 560 009.
6. PANCHAYATH DEVELOPMENT OFFICER,
CHENNENAHALLI VILLAGE PANCHAYATH,
BANGALORE SOUTH TALUK,
BANGALORE - 562 130.
...RESPONDENTS
(BY SRI. M. RAJKUMAR, AGA FOR R1, R3 TO R6;
VIDE ORDER DATED 17.12.2024, R2 NOTICE IS
DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO a)
ISSUE A WRIT, ORDER OR DIRECTION IN THE NATURE OF
CERTIORARI OR ANY OTHER APPROPRIATE WRIT ORDER OR
DIRECTION TO QUASH THE ORDER OF TAKING COGNIZANCE
DATED 11.09.2024 FOR THE OFFENCE PUNISHABLE UNDER
SECTION 4(3) AND 5 OF THE KARNATAKA LAND GRABBING
PROHIBITION ACT 2011 AGAINST THE PETITIONER PASSED IN
L.G.C(P) No-304/2023 PENDING ON THE FILE OF THE
KARNATAKA LAND GRABBING PROHIBITION SPECIAL COURT
AT BANGALORE (ANNEXURE-A) AND ETC.,
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE KRISHNA S DIXIT
and
HON'BLE MR JUSTICE C M JOSHI
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WP No. 34199 of 2024
ORAL ORDER
(PER: HON'BLE MR JUSTICE KRISHNA S DIXIT) Petitioners are knocking at the doors of Writ Court for assailing the proceedings that are pending before the Special Court under the provisions of Karnataka Land Grabbing Prohibition Act, 2011.
2. Learned Senior Advocate Sri.Uday Holla, appearing for the Petitioners vehemently argues that there are reports from the Revenue Officials & jurisdictional Officials submitted to the Court below to the effect that there is no prima facie encroachment; that being the position, the Court below could not have taken cognizance of the alleged offences and issued Process to his clients. He also tells us of the order of the Court below whereby Petitioners' Application seeking permanent exemption filed under Section 205 is rejected, although exemption for the day under Section 228 of Cr.P.C. is accorded. In support of his submission, he presses into service Apex Court -5- NC: 2024:KHC:52034-DB WP No. 34199 of 2024 decision in M/s Pepsi Foods Limited and Another Vs. Special Judicial Magistrate and Others1.
3. Learned Additional Government Advocate on request appearing for the Respondents opposes the Petition contending that whether there is encroachment or not, is a pure question of fact which can be ascertained at a particular stage of the criminal proceeding pending before the Court below and therefore, Writ Court cannot undertake a deeper examination of the said issue regard being had to conventional limitations. He brings to our notice the decision in W.P.No.32525/2024 (KLGP). between RAJASHEKARAIAH K V & OTHERS v. SLAO & OTHERS, disposed off by us on 05.12.2024 wherein some limited indulgence having been accorded, a direction is issued to the Court below to grant permanent exemption to litigants of the kind till the matter attains the stage of hearing before charge. He hastens to add that beyond this concession, nothing more can be accorded to the 1 AIR 1998 SC 128 -6- NC: 2024:KHC:52034-DB WP No. 34199 of 2024 petitioners who have structured the petition on similar fact matrix.
4. Having heard the learned counsel for the parties and having perused the Petition papers, we are of the considered view that the issue as to alleged encroachment of the land in question needs to be examined by the Court below itself at an appropriate stage of the proceeding; of course, that stage need not necessarily be the commencement of trial, but can be prior to that also. It hardly needs to be stated that setting criminal law in motion is not a child's play vide Pepsi Foods supra.
4. Till the stage of hearing before charge is attained in the pending proceedings, it is not desirable to have the personal presence of the accused as a matter of course. However they should assure their personal presence if & when required at any stage of the proceeding. Learned counsel appearing for the petitioner has given such an assurance before us. In Rajashekhariah supra, we have granted some reprieve to litigants of the kind by -7- NC: 2024:KHC:52034-DB WP No. 34199 of 2024 according permanent exemption from personal appearance till the stage of HBC. Mr. Holla is right in telling us that in matters like this, Court below is not justified in seeking Application for exemption on every hearing date, liberty of free citizens being constitutionally guaranteed under Article-21.
5. The submission of Mr. Holla that the object of the subject Act is inter alia to secure back the encroached public lands from the private persons and therefore if the alleged encroachment is sincerely & immediately given up, even as a matter of buying peace, the court below has to consider such an offer in accordance with law. Of course, some elements of bona fide needs to be demonstrated as to alleged encroachment, is also true. More is not necessary to specify.
In the above circumstances, this Petition is allowed in part; Court below is requested to accord to the petitioners permanent exemption from personal appearance till the proceedings attain the stage of 'hearing before charge'. -8-
NC: 2024:KHC:52034-DB WP No. 34199 of 2024 It is also open to the Petitioners to move Discharge Application at appropriate stage and in that connection, all contentions are kept open.
No costs.
Sd/-
(KRISHNA S DIXIT) JUDGE Sd/-
(C M JOSHI) JUDGE rv List No.: 1 Sl No.: 15 CT: BHK