Karnataka High Court
Pundlika S/O Homanna Mirasihi vs The Tahasildar, Haliyal on 25 June, 2019
Author: Aravind Kumar
Bench: Aravind Kumar
R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25 T H DAY OF JUNE, 2019
PRESENT
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR.JUSTICE BELLUNKE A.S.
W.P.No.107303/2019 (KLGP-KEB)
Connected with
W.P.No.107304/2019 (KLGP), W.P.No.107305/2019 (KLGP),
W.P.No.107306/2019 (KLGP), W.P.No.107310/2019 (KLGP),
W.P.No.107311/2019 (KLGP), W.P.No.107312/2019 (KLGP),
W.P.No.107313/2019 (KLGP), W.P.Nos.107314-107315/2019 (KLGP)
W.P.No.107307/2019 (KLGP), W.P.No.107308/2019 (KLGP)
& W.P.No.107309/2019 (KLGP)
In W.P.No.107303/2019:
BETWEEN
PUNDLIKA S/O HOMANNA MIRASIHI,
AGED: 71 YEARS, OCC: COOLIE,
R/O: BASAVALLI VILLAGE, TQ: HALIYAL,
DIST: UTTARA KANNADA, PIN-581 329.
... PETITIONER
(BY SHRI ANANT HEGDE, ADVOCATE)
AND
THE TAHASILDAR, HALIYAL,
TQ: HALIYAL, DIST: UTTARA KANNADA,
PIN-581 329.
... RESPONDENT
(BY SMT.VEENA HEGDE, AGA)
:2:
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
SECURE THE RECORDS IN PROCEEDING NO.LGC(G)
NO.1473/2017 ON THE FILE OF KARNATAKA LAND GRABBING
PROHIBITION SPECIAL COURT AT BENGALURU AND ETC.,
In W.P.NO.107304/2019:
BETWEEN
GOVINDA S/O HUVANNA RACHOTKARA,
AGED: 55 YEARS, OCC: COOLIE,
R/O: BASAVALLI VILLAGE,
TQ: HALIYAL, DIST: UTTARA KANNADA,
PIN - 581 329
... PETITIONER
(BY SHRI ANANT HEGDE, ADVOCATE)
AND
THE TAHASILDAR, HALIYAL,
TQ: HALIYAL, DIST: UTTARA KANNADA,
PIN - 581 329
... RESPONDENT
(BY SMT.VEENA HEGDE, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
SECURE THE RECORDS IN PROCEEDING NO.LGC(G)
NO.1475/2017 ON THE FILE OF KARNATAKA LAND GRABBING
PROHIBITION SPECIAL COURT AT BENGALURU AND ETC.,
In W.P.No.107305/2019:
BETWEEN
DUNDAYYA S/O SHEKARAYYA HIREMATH,
AGED: 70 YEARS, OCC: AGRICULTURE,
R/O: BASAVALLI VILLAGE, TQ: HALIYAL,
DIST: UTTARA KANNADA, PIN - 581 329.
... PETITIONER
:3:
(BY SHRI ANANT HEGDE, ADVOCATE)
AND
THE TAHASILDAR, HALIYAL
TQ: HALIYAL, DIST: UTTARA KANNADA,
... RESPONDENT
(BY SMT.VEENA HEGDE, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
SECURE THE RECORDS IN PROCEEDING NO.LGC(G)
NO.1479/2017 ON THE FILE OF KARNATAKA LAND GRABBING
PROHIBITION SPECIAL COURT AT BENGALURU AND ETC.,
In W.P.No.107306/2019:
BETWEEN
PUNDLIKA S/O GANGAPPA KHANAPURKAR,
AGED: 60 YEARS, OCC: AGRICULTURE,
R/O: BASAVALLI VILLAGE, TQ: HALIYAL,
DIST: UTTARA KANNADA-581 329.
... PETITIONER
(BY SHRI ANANT HEGDE, ADVOCATE)
AND
THE TAHASILDAR, HALIYAL
TQ: HALIYAL-581329, DIST: UTTARA KANNADA.
... RESPONDENT
(BY SMT.VEENA HEGDE, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
SECURE THE RECORDS IN PROCEEDING NO.LGC(G)
NO.1484/2017 ON THE FILE OF KARNATAKA LAND GRABBING
PROHIBITION SPECIAL COURT AT BENGALURU AND ETC.,
:4:
In W.P.No.107310/2019:
BETWEEN
HANUMANTHA S/O GANGAPPA KHANAPURKAR
AGED: 57 YEARS, OCC: AGRICULTURE,
R/O: BASAVALLI VILLAGE-581 329,
TQ: HALIYAL, DIST: UTTARA KANNADA.
... PETITIONER
(BY SHRI ANANT HEGDE, ADVOCATE)
AND
THE TAHASILDAR, HALIYAL
TQ: HALIYAL-581 329, DIST: UTTARA KANNADA.
... RESPONDENT
(BY SMT.VEENA HEGDE, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
SECURE THE RECORDS IN PROCEEDING NO.LGC(G)
NO.1485/2017 ON THE FILE OF KARNATAKA LAND GRABBING
PROHIBITION SPECIAL COURT AT BENGALURU AND ETC.,
In W.P.No.107311/2019:
BETWEEN
PUNDALAIKA BASAVANTHA KHANDEKAR
AGED: 65 YEARS, OCC: COOLIE,
R/O: BASAVALLI VILLAGE-581 329,
TQ: HALIYAL, DIST: UTTARA KANNADA.
... PETITIONER
(BY SHRI ANANT HEGDE, ADVOCATE)
AND
THE TAHASILDAR, HALIYAL
TQ: HALIYAL-581 329, DIST: UTTARA KANNADA.
... RESPONDENT
(BY SMT.VEENA HEGDE, AGA)
:5:
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
SECURE THE RECORDS IN PROCEEDING NO.LGC(G)
NO.1486/2017 ON THE FILE OF KARNATAKA LAND GRABBING
PROHIBITION SPECIAL COURT AT BENGALURU AND ETC.,
In W.P.No.107312/2019:
BETWEEN
CHANDRAKANTHA S/O NARAYAN BANADURKARA
AGED: 54 YEARS, OCC: AGRICULTURE,
R/O: BASAVALLI VILLAGE-581 329,
TQ: HALIYAL, DIST: UTTARA KANNADA.
... PETITIONER
(BY SHRI ANANT HEGDE, ADVOCATE)
AND
THE TAHASILDAR, HALIYAL
TQ: HALIYAL-581 329, DIST: UTTARA KANNADA.
... RESPONDENT
(BY SMT.VEENA HEGDE, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
SECURE THE RECORDS IN PROCEEDING NO.LGC(G)
NO.1468/2017 ON THE FILE OF KARNATAKA LAND GRABBING
PROHIBITION SPECIAL COURT AT BENGALURU AND ETC.,
In W.P.No.107313/2019:
BETWEEN
BASAVANNEPPA S/O PARASAPPA HUNASIKATTI
AGED: 73 YEARS, OCC: COOLIE,
R/O: BASAVALLI VILLAGE-581 329,
TQ: HALIYAL, DIST: UTTARA KANNADA
... PETITIONER
(BY SHRI ANANT HEGDE, ADVOCATE)
:6:
AND
THE TAHASILDAR, HALIYAL
TQ: HALIYAL-581 329,
DIST: UTTARA KANNADA.
... RESPONDENT
(BY SMT.VEENA HEGDE, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
SECURE THE RECORDS IN PROCEEDING NO.LGC(G)
NO.1470/2017 ON THE FILE OF KARNATAKA LAND GRABBING
PROHIBITION SPECIAL COURT AT BENGALURU AND ETC.,
In W.P.Nos.107314-107315/2019:
BETWEEN
1. BABU S/O YALLAPPA DODMANI
AGED: 60 YEARS, OCC: COOLIE,
R/O: BASAVALLI VILLAGE-581 329,
TQ: HALIYAL, DIST: UTTARA KANNADA.
2. GANGARAMA S/O APPAYYA KARLKOPPA
AGED: 65 YEARS, OCC: COOLIE,
R/O: BASAVALLI VILLAGE-581 329,
TQ: HALIYAL, DIST: UTTARA KANNADA.
... PETITIONERS
(BY SHRI ANANT HEGDE, ADVOCATE)
AND
THE TAHASILDAR, HALIYAL
TQ: HALIYAL-581 329, DIST: UTTARA KANNADA.
... RESPONDENT
(BY SMT.VEENA HEGDE, AGA)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
SECURE THE RECORDS IN PROCEEDING NO.LGC(G)
:7:
NO.1472/2017 ON THE FILE OF KARNATAKA LAND GRABBING
PROHIBITION SPECIAL COURT AT BENGALURU AND ETC.,
In W.P.No.107307/2019:
BETWEEN
PARVATHI W/O BASAVANNEPPA KATENNAVARA,
AGED: 65 YEARS, OCC: AGRICULTURE LABOUR,
R/O: BASAVALLI VILLAGE, TQ: HALIYAL,
DIST: UTTARA KANNADA.
... PETITIONER
(BY SHRI ANANT HEGDE, ADVOCATE)
AND
THE TAHASILDAR, HALIYAL
TQ: HALIYAL, DIST: UTTARA KANNADA.
... RESPONDENT
(BY SMT.VEENA HEGDE, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
SECURE THE RECORDS IN PROCEEDING NO.LGC(G)
NO.1480/2017 ON THE FILE OF KARNATAKA LAND GRABBING
PROHIBITION SPECIAL COURT AT BENGALURU AND ETC.,
In W.P.No.107308/2019:
BETWEEN
PHAKIRA S/O HANUMANTA PUJARI,
AGED: 44 YEARS, OCC: COOLIE,
R/O: BASAVALLI VILLAGE, TQ: HALIYAL,
DIST: UTTARA KANNADA, PIN-581329.
... PETITIONER
(BY SHRI ANANT HEGDE, ADVOCATE)
AND
THE TAHASILDAR, HALIYAL
:8:
TQ: HALIYAL, DIST: UTTARA KANNADA,
PIN-581329.
... RESPONDENT
(BY SMT.VEENA HEGDE, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
SECURE THE RECORDS IN PROCEEDING NO.LGC(G)
NO.1482/2017 ON THE FILE OF KARNATAKA LAND GRABBING
PROHIBITION SPECIAL COURT AT BENGALURU AND ETC.,
In W.P.No.107309/2019:
BETWEEN
KRISHNA S/O VITALA MIRASHI
AGED: 54 YEARS, OCC: AGRICULTURE,
R/O: BASAVALLI VILLAGE-581329,
TQ: HALIYAL, DIST: UTTARA KANNADA.
... PETITIONER
(BY SHRI ANANT HEGDE, ADVOCATE)
AND
THE TAHASILDAR, HALIYAL
TQ: HALIYAL, DIST: UTTARA KANNADA,
PIN-581329.
... RESPONDENT
(BY SMT.VEENA HEGDE, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
SECURE THE RECORDS IN PROCEEDING NO.LGC(G)
NO.1481/2017 ON THE FILE OF KARNATAKA LAND GRABBING
PROHIBITION SPECIAL COURT AT BENGALURU AND ETC.,
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ARAVIND KUMAR J., DELIVERED THE
FOLLOWING:
:9:
ORDER
These writ petitions are listed in preliminary hearing/orders and by consent of learned advocates appearing for parties, they are taken up for final disposal.
2. We have heard the arguments of Shri Anant Hegde, learned advocate appearing for petitioners and Smt.Veena Hegde, learned AGA appearing for the respondent - State. Perused the records.
3. Since issue involved in these writ petitions are common, except to the extent of survey numbers as well as the extent of land varying in each case, they are taken up together for final disposal and heard, disposed off by this common order.
4. Respondent in all these cases, filed applications under Section 9(1) of the Karnataka Land Grabbing Prohibition Act, 2011 (for short "Land Grabbing : 10 : Act") before the Karnataka Land Grabbing Prohibition Special Court, at Bengaluru alleging that accused (writ petitioners) are in possession of Government land of Sy.No/Block Nos.13 and 45 of Basavalli Village, Haliyal Taluk, Uttara Kannada District and have been cultivating said land unauthorizedly. It was also alleged that despite notice issued to them, they have failed to vacate the lands and as such they are liable to be punished for the offence punishable under Section 4(3) of Land Grabbing Act.
5. In order to drive home the guilt of the accused, jurisdictional Tahasildar, Shri Vidyadhar G.Gulaguli got himself examined as PW1 and in all these cases four documents came to be produced on behalf of the prosecution and they were got marked as Exs.P1 to P4. Statement of the accused under Section 313 of Cr.P.C. was recorded and defence of accused was total denial. No evidence in support of defence was tendered. On the basis of evidence tendered by the prosecution, : 11 : jurisdictional Special Court has convicted the accused (writ petitioners) for the offence punishable under Section 4(3) of the Land Grabbing Act and sentenced them to imprisonment for a period of one year and they have also been directed to pay fine of Rs.5,000/- each and in default of payment of fine amount, each of the accused has been directed to undergo simple imprisonment for a period of one month. Hence, being aggrieved by the judgment and order of sentence, petitioners are before this Court.
6. It is contended by Shri Anant Hegde, learned counsel appearing for petitioners that initial burden cast on the prosecution to prove its case has not been discharged, particularly when the accused has denied the case of the prosecution. He would also contend that evidence which came to be tendered on behalf of the prosecution through PW1 is a hearsay evidence and alleged encroachment of Government land by petitioners was required to be proved by the prosecution by : 12 : establishing the contents of survey report, survey sketch and the like documents, which was not at all done in all these cases and as such prosecution had failed to prove the alleged encroachment of Government land by petitioners beyond reasonable doubt. He would also contend that when PW1 is not an eyewitness to the alleged encroachment and in the application itself, prosecution has contended that village accountant was an eyewitness to the alleged encroachment, he ought to have been examined as otherwise evidence of PW1 would partake the character of hearsay evidence and same being inadmissible it could not have been relied upon by the learned trial Judge to convict the petitioners. On these grounds, he seeks for quashing of the impugned judgment and order of sentence imposed on all the petitioners.
7. Per contra, Smt.Veena Hegde, learned AGA appearing for respondent - State would support the case of the prosecution and she contends that insofar as the : 13 : act of land grabbing is concerned, the burden of proof is on the accused namely land grabber has to prove that he has not grabbed the land in his possession and the burden so cast on petitioners having not been discharged by them, rightly trial Court have convicted them. She would further contend that learned trial Judge has accepted the evidence tendered by prosecution particularly the documentary evidence i.e., Ex.P-1 to P-4 to arrive at a conclusion that petitioner is a land grabber and petitioners came to be convicted and sentenced to imprisonment rightly so for squatting on the property of the Government illegally . She would submit that judgment passed in these cases by the trial Judge does not suffer from any infirmity either in law or on facts calling for interference at the hands of this Court. Hence, she prays for dismissal of the writ petitions.
8. Section 4 of the Act, would indicate that no person shall commit or cause to be committed land : 14 : grabbing, by himself or through any other person. It reads:
"4. Prohibition of land grabbing.- (1) No person shall commit or cause to be committed land grabbing, by himself or through any other person.
(2) Any person who, on or after the commencement of this Act, continue to be in occupation, otherwise than as a lawful tenant, of a grabbed land belonging to the Government, Wakf, Hindu Religious Institution and Charitable Endowments, local authority, statutory or non-
statutory body owned, controlled or managed by the State Government shall be guilty of an offence under this Act.
(3) Whoever contravenes the provisions of sub-section (1) or sub-section (2) shall on conviction, be punished with imprisonment for a term which shall not be less than one year but which may extend to three years, and with fine which may extend to twenty five thousand rupees."
9. A bare reading of the above provision would clearly indicate that no person shall commit or cause to : 15 : be committed land granting by himself or cause to be committed or through any other person Sub-Section (2) indicates that any person who, on or after the commencement of this Act, continue to be in occupation, otherwise than as a lawful tenant, of a grabbed land belonging to the Government, Wakf, Hindu Religious Institution and Charitable Endowments, local authority, statutory or non-statutory body owned, controlled or managed by the State Government shall be guilty of an offence under the Act. Sub-Section (3) of Section 4 would indicate that whoever contravenes the provisions of sub-section (1) or sub-section (2) shall on conviction, be punished with imprisonment for a term which shall not be less than one year but which may extend up to three years, and with fine which may extend to twenty five thousand rupees.
10. In the light of above penal provision, the expression as to what is 'land grabbing' and who would be a 'land grabber' will have to be understood. Hence, : 16 : we are of the considered view that it would be apt and appropriate to extract the definitions of "land grabber", "land grabbing" as defined under Sections 2(e) and 2(f) of the Land Grabbing Act, since prosecution launched against the petitioners is for the alleged offence of grabbing Government land and being in possession of it illegally.
(a) xxxxx
(e) "land grabber" means a person or a group of persons or a Society, who commits or has committed land grabbing and includes any person who gives financial aid to any person for taking illegal possession of lands or for construction of unauthorized structures thereon, or who collects or attempts to collect from any occupiers of such lands rent, compensation and other charges by criminal intimidation, or who abets the doing of any of the above mentioned acts;
and also includes the successors in
interest;
: 17 :
(f) "land grabbing" means every activity of grabbing of any land, without any lawful entitlement and with a view to illegally taking possession of such land, or enter into or create illegal tenancies or lease and licences agreements construct unauthorized structures thereon for sale or hire, or give such lands to any person on rental or lease and license basis for construction, or use and occupation, of unauthorized structures; and the term "to grab land" shall be construed accordingly;
11. Plain reading of Section 11 of the Act would indicate that where in any proceedings under the Act is initiated and prima facie it is proved by the prosecution that person alleged to have grabbed the land is owned by the Government, then Special Court can presume that person who is alleged to have grabbed the land is a land grabber. Thus, in this background, the definition of 'land grabber' and 'land grabbing' acquires significance. : 18 :
12. In the instant case, prosecution has been launched or initiated against petitioners alleging they have grabbed the Government land in different blocks of Basavalli village, Halyal Taluk, North Canara District. In all these cases, notices have been issued to the petitioners under Section 192-A of the Karnataka Land Revenue Act, 1964 calling upon them to quit, vacate and handover vacant possession of the alleged Government lands said to have been grabbed by them. Said notices have been produced along with these petitions which is at Annexure-A and it was undisputedly issued between 2011 & 2014. This is the basis on which criminal prosecution has been launched against petitioners. The application filed under Section 9(1) of the Act by the respondent herein before jurisdictional Court for prosecuting the petitioners for allegedly grabbing Government land would indicate, prosecution has alleged that petitioners have occupied the Government land and thereby they are to be treated or construed as land : 19 : grabbers or having grabbed the land belonging to the Government. One intriguing factor which requires to be noticed at this stage itself is, notice under Section 192A of Karnataka Land Revenue Act, came to be issued to the alleged encroacher i.e., petitioner in W.P. No.107303/2019 alleging in Block No.13 of Basavalli in an extent of 2 acres land petitioner is in unauthorized occupation. However, prosecution has been launched for alleged encroachment to an extent of 5 acres. In almost all these cases except at Sl.No.7 as indicated in the tabular column herein below the extent of land grabbed as per notice and extent of land grabbed for which prosecution has been launched varies. Same is tabulated herein below in respect of each cases for purpose of immediate reference.
Sl. Extent described
Writ Petition Nos. Extent alleged
No. in notice
1) 107303/2019 2 acres 5 acres
2) 107304/2019 2 acres 2 acres
1 acres
3) 107305/2019 2 acres
10 guntas
4 acres
4) 107306/2019 2 acres
20 guntas
: 20 :
4 acres
5) 107310/2019 2 acres
20 guntas
4 acres
6) 107311/2019 2 acres
22 guntas
1 acre
7) 107312/2019 1 acre 20 guntas
20 guntas
8) 107313/2019 2 acres 2 acres
107314-
9) 1 acre 4 acres
107315/2019
4 acres
10) 107307/2019 2 acres
20 guntas
4 acres
11) 107308/2019 2 acres
20 guntas
4 acres
12) 107309/2019 2 acres
20 guntas
13. Even according to the prosecution, above facts would disclose that initially they have alleged the extent of encroachment was to an extent of 2 acres. However, prosecution has been launched for a larger extent. In other words, prosecution itself was in doubt as to whether the alleged encroachment is to an extent of 2 acres as alleged in the notice or 4 acres or 4 acres 20 guntas or 5 acres respectively as alleged in the complaint. It is in this background, the expression or word is prima facie as found in Section 11 of the Act would acquire significance. It is the prosecution which : 21 : has to prima facie prove the actual extent of encroachment of Government land by the accused. In other words, the initial burden is on the prosecution to prove the actual extent of encroachment by the encroachers namely the writ petitioners and thereafter burden would be on the accused to establish he is not occupation of such land unauthorisedly.
14. The allegation against the petitioners in all these cases is they are in occupation of government land and despite notices having been issued to them, they have not replied nor complied with the demand made under the notices and they have continued in possession of government lands and thereby they would fall within the definition of "land grabber" and as such they are liable to be prosecuted for the offence punishable under Section 4 of the Act.
15. The fact remains that notices came to be issued to all the petitioners way back in the year 2011 alleging that they were in occupation of government : 22 : lands to the extent described in the said notices. As noticed hereinabove, the extent of land alleged to be in their possession, as per the notices is ranging from 1 acres to 2 acres, whereas the extent alleged occupied or grabbed by the respective petitioners ranges from 2 acres to 5 acres. Thus, it was incumbent upon the respondents authorities to conduct an enquiry by holding survey in the presence of petitioners by giving them opportunity to participate in the survey proceedings, so as to ascertain as to whether they are in possession of any Government land, and if so, to what extent. It is only on such exercise having been undertaken, prosecution could have been initiated against the petitioners by alleging the actual extent of land in their occupation. However, even before such an exercise could be undertaken, prosecution has been launched and as such it would not stand the test of law.
16. In the instant cases, jurisdictional Tahasildar who has entered the witness box has clearly stated that : 23 : he has not visited the spot; he has not conducted any investigation; he has not conducted survey of the land in question nor he is having any personal knowledge of the encroachment by the petitioners. However, to prove the allegation of land grabbing by the petitioners, Tahasildar has relied upon two documents namely Ex.P-3 i.e., rough hand sketch of village accountant and RTC extract of survey No.13 of Basavalli village. Neither the said village accountant was examined nor said sketch had been drawn in the presence of the accused or the author of sketch was examined. Hence, contents of Ex.P-3 was not proved.
17. In fact, in the matter of Lalitha Shastri Vs. State of Karnataka represented by its Secretary Department of Parliamentary Affairs and Legislation and others reported in ILR 2008 KARNATAKA 4520, Co-ordinate Bench has held, where the appropriate Government is of the view that if the Government land has been encroached, it would be : 24 : incumbent upon the State to issue notice to the alleged encroachers calling upon them to file objections to the notice and if no objection are received, authorities are required to visit the spot, conduct a mahazar in the presence of villagers, obtain their signatures and thereafter initiate criminal proceedings, if they are satisfied that there is encroachment. This safeguard came to be reiterated in the said judgment, in the teeth of circular dated 08.09.2008 issued by the Government which was to meet the principles of natural justice. Obviously, it is in this background, notices in these writ petitions as per Ex.P-1 came to be issued to the petitioners. However, subsequent procedure which was required to be adopted for conducting the spot mahazar has not been done and based on the hand sketch Ex.P-3 prepared by the village accountant who undisputedly has not been examined, learned trial Judge has jumped to the conclusion that there is land grabbing by the respective petitioners.
: 25 :
18. On the short ground that evidence of PW-1 is a hearsay evidence, impugned orders are liable to be set aside, as its does not stand the test of law. However, we have further noticed that during the course of argument, learned counsel appearing for petitioners has filed an affidavit of the respective petitioners wherein it has been specifically stated/deposed that they have not encroached any portion of Government land. They have also stated they are not in possession of said land which is said to have been encroached. As to whether petitioners are encroachers and thereby falling within the definition of land grabber as defined under Section 2(f) of the Act is an issue which will have to be examined on the basis of evidence that would be placed by the prosecution. In the instant case, no such impeachable evidence has been tendered or produced by the prosecution so as to arrive at a conclusion that petitioners have encroached Government land and as such they are land grabbers.
: 26 :
19. On the basis of hearsay evidence, conviction cannot be sustained. In fact, as already noticed hereinabove and at the cost of repetition, it requires to be noticed that prosecution has been launched against petitioners for alleged land grabbing which extent is larger than what has been stated in the notices Ex.P-1. This itself would indicate that there is a doubt in the mind of the prosecution itself about the exact extent of encroachment of land by the respective petitioners. For all these reasons, we are of the considered view that impugned orders cannot be sustained.
20. It is also needless to state that in the light of the judgment in Lalitha Shastri's case referred to supra, respondent was required to form an opinion about the extent of encroachment by respective petitioners after following due procedure as indicated in the said judgment. It was pursuant to the circular dated 08.09.2008 filed by the learned Government Advocate in the said case, procedure required to be followed as : 27 : indicated thereunder came to be reiterated. However, conspicuously said procedure having been adopted is absent in the instant case.
21. As such, we are of the considered view that liberty has to be granted to the respondent-State to initiate prosecution afresh, if they so desire, against the petitioners in the light of the observations made hereinabove.
Hence, the following:
ORDER (1) Writ Petition Nos.107303/2019, 107304/2019, 107305/2019, 107306/2019, 107310/2019, 107311/2019, 107312/2019, 107307/2019, 107308/2019 & 107309/2019 are hereby allowed.
(2) Impugned order dated 06.02.2019 passed
in LGC(G) Nos.1473/2017, 1475/2017,
: 28 :
1479/2017, 1484/2017, 1485/2017,
1486/2017, 1468/2017, 1470/2017,
1472/2017, 1480/2017, 1482/2017 and 1481/2017 at Annexure-E are hereby set aside for reasons aforestated and also in the light of affidavits filed by the petitioners deposing they have not encroached the Government lands and admitting they are not in possession of said lands. (3) The fine amount ordered to be paid by petitioners, if already deposited by the respective petitioners/accused, it is ordered to be refunded by the jurisdictional Court to respective petitioners on producing the copy of this order.
(4) The respondent would be at liberty to proceed against petitioners keeping in mind the observations made hereinabove and it would also be at liberty to take appropriate : 29 : steps to protect the said lands belonging to the Government.
(5) No order as to costs.
All pending applications, if any, stand consigned to records.
SD/-
JUDGE SD/-
JUDGE Vnp* & Naa