Karnataka High Court
Geeta D/O Shrishail Ganji vs The Executive Engineer on 20 April, 2022
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 100977 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 20TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 100977 OF 2021 (GM-PP)
BETWEEN:
1. GEETA D/O SHRISHAIL GANJI
AGE 32 YEARS,
OCC AGRICULTURE AND ADVOCATE,
R/O DHUPDAL VILLAGE-591218,
TQ GOKAK, DIST BELAGAVI.
2. SIDRAM ALLAPPA MELAVANKI
AGE 55 YEARS,
OCC AGRICULTURE,
R/O DHUPDAL VILLAGE-591218,
TQ GOKAK, DIST BELAGAVI.
3. YESHWANT SHETTAPPA MYAGERI
AGE 52 YEARS,
OCC AGRICULTURE,
R/O DHUPDAL VILLAGE-591218,
TQ GOKAK, DIST BELAGAVI.
4. SEVANTHA W/O BALAPPA TALWAR
AGE 29 YEARS,
OCC AGRICULTURE AND HOUSEHOLD WORK,
R/O DHUPDAL VILLAGE-591218,
TQ GOKAK, DIST BELAGAVI.
...PETITIONERS
(BY SRI.S.H.MITTALKOD AND SRI.VINAY S KOUJALAGI, ADVOCATES)
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WP No. 100977 of 2021
AND:
1. THE EXECUTIVE ENGINEER
KARNATAKA NEERAVARI NIGAM LIMITED,
G L B C DIVISION NO.1,
GHATPRABHA-591306,
TQ GOKAK,
DIST BELAGAVI.
2. THE DEPUTY COMMISSIONER
BELAGAVI.590001
3. THE TAHASILDAR,
MINI VIDHANA SOUDHA GOKAK,
TQ GOKAK,
DIST BELAGAVI.590001
4. THE SECRETARY
GRAM PANCHAYAT, DHOPDAL VILLAGE
TQ: GOKAK, DIST: BELAGAVI
...RESPONDENTS
(BY SRI.UMESH C AINAPUR, ADVOCATE FOR R1,
SRI.PRAVEEN K UPPAR, HCGP FOR R2-3,
SRI.SHIVARAJ HIREMATH, ADVOCATE FOR R4)
THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI OR ANY OTHER WRIT ORDER OR
DIRECTION QUASHING THE ORDER DATED 6/3/2021 PASSED BY
THE XII ADDL. DISTRICT AND SESSIONS JUDGE, BELAGAVI,
SITTING AT GOKAK IN M.A.2/2020 PRODUCED AT ANNEXURE H AND
THE NOTICE DATED 16/11/2018 NOTICE DATED 16/11/2018 ISSUED
BY RESPONDENT NO.1 PRODUCED AT ANNEXURE E AND E1.
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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WP No. 100977 of 2021
ORDER
1. The petitioners are before this Court seeking for the following reliefs:
To issue a writ in the nature of certiorari or any other writ order or direction quashing the order dated 6/3/2021 passed by the XII Addl. District and Sessions Judge, Belagavi, sitting at Gokak in M.A.2/2020 produced at Annexure H and the notice dated 16/11/2018 notice dated 16/11/2018 issued by respondent No.1 produced at Annexure E and E1.
2. The petitioners claims to be in possession, use and enjoyment of property bearing No.120 in Duphdal village in Gokak taluk and cultivating the same for the last 40 years. The petitioners claim that Hakkupatra had been issued in favour of the petitioners. The petitioners have been making payment of the property tax. The petitioners' names appear in the voters list and election identity cards have been issued in their favour and as such the petitioners carried out the agricultural activity in the said property.
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3. Shockingly, respondent No.1 issued a notice under Section 5 of the Karnataka Public Premises (Eviction of Unauthorized Occupants) Act, 1974 (the Act for brevity) directing the petitioners to vacate the property. The petitioners were not given an opportunity and without passing an order under Section 5 of the Act, final order came to be passed directing the petitioners to vacate the property.
4. The petitioners had thereafter challenged the same by filing M.A.No.2/2020 before the XII Additional District and Sessions Judge, Belagavi under Section 10 of the Act. The M.A. filed by the appellant Nos.4 to 7 therein was dismissed on the ground that the petitioners are in unauthorized occupation of the said property. It is aggrieved by the same that the petitioners are before this Court.
5. Sri.S.H.Mittalkod, learned counsel for the petitioners would submit that the property never belonged to respondent No.1-Karnataka Neeravari Nigam Limited -5- WP No. 100977 of 2021 to exercise powers as a competent authority under the Act, inasmuch as the said property has not been identified to be owned by Karnataka Neeravari Nigam Limited. There is no document that would evidence the same except the contention of respondent No.1 that the property it is to be used for the benefit of Karnataka Neeravari Nigam Limited.
6. Upon notice being ordered, learned HCGP, who is appearing for respondent No.2 who was directed to enquire and make his submissions as regards whether Hakkupatra had been in fact been issued in favour of the petitioners and if the petitioners have been making payment of necessary taxes, today submits that he has received instructions from respondent No.3-Tahasildar that Hakkupatras have been in fact issued to the petitioners and taxes are being paid by the petitioners.
7. If that were to be so, the petitioners cannot be said to be in unauthorized possession, they are infact in -6- WP No. 100977 of 2021 authorized possession of the property, the petitioners cannot be evicted from their properties by following a short-circuited summary proceeding under the Act, infact they cannot be evicted by anyone unless the property is acquired and they are paid due compensation. It is not the case of the state that the said property has been acquired or compensation has been paid.
8. The Apex Court in the case of Kaikhosrou (Chick) Kavasji Framji Vs. Union of India and another, reported in (2019) 20 SCC 705 at paragraph Nos.47, 48, 49, 50, 51 and 59 has held as under:
"47. The question involved in Express Newspapers case7 in relation to remedy of the State qua person in possession of the land was again considered by a Bench consisting of three Judges in State of Rajasthan v. Padmavati Devi. In that case also, the question arose as to whether the State Government can take recourse to a summary remedy of eviction of a person under the State Revenue laws from the land when such person raises a bona fide dispute about his right to remain in occupation over such land. Their Lordship held that in such a situation, the summary remedy to evict such person under the Act could not be resorted to.-7- WP No. 100977 of 2021
48. S.C. Agrawal, J. speaking for the Bench held in para 6 in the following words:
(Padmavati Devi case, SCC pp. 292-93) "6. As noticed earlier Section 91 of the Act prescribes a summary procedure for eviction of a person who is found to be in unauthorised occupation of government land. The said provisions cannot be invoked in a case where the person in occupation raises bona fide dispute about his right to remain in occupation over the land. Dealing with similar provisions contained in Section 6 of the Andhra Pradesh Land Encroachment Act, 1945, this Court in State of A.P. v. Thummala Krishna Rao has laid down that the summary remedy for eviction provided by Section 6 of the said Act could be resorted to by the Government only against persons who are in unauthorised occupation of any land which is the property of the Government and if the person in occupation has a bona fide claim to litigate he could not be ejected save by the due process of law and that the summary remedy prescribed by Section 6 was not the kind of legal process which is suited to an adjudication of complicated questions of title. For the same reasons, it can be said that summary remedy available under Section 91 of the Act is not the legal process which is suited for adjudication of complicated questions of title where the person sought to be evicted as an unauthorised occupant makes a bona fide claim regarding his right to be in possession. In such a case the proper course is to have the matter adjudicated by the ordinary courts of law.
This view was reiterated in State of U.P. v. Zia Khan.
49. At this stage we consider apposite to take note of the Constitution Bench decision of -8- WP No. 100977 of 2021 this Court wherein this Court after examining and upholding the constitutional validity of the PP Act in Kaiser-I-Hind (P) Ltd. v. National Textile Corpn. (Maharashtra North) Ltd.15 reiterated the view taken by this Court in an earlier decision of Northern India Caterers (P) Ltd. v. State of Punjab16 that the PP Act does not create any new right of eviction but it only creates a remedy for a right which already exists under the general law. In other words, it was held that it only provides a remedy which is speedier than the remedy of a suit under the general law.
50. Keeping in view the statement of law laid down by this Court in cited decisions supra, when we examine the facts of the case in hand, we have no hesitation in holding that the appellants have raised a bona fide dispute on the question of ownership of the suit property qua Respondent (Union of India).
51. A fortiori, in such case, Respondent 2 has no jurisdiction to invoke the powers under Section 4 of the PP Act by resorting to a summary procedure prescribed in the PP Act by sending a notice under Section 4 of the PP Act for the appellant's eviction from the suit property. This we say for the following six reasons.
51.1. First, the facts set out above and the documents filed in their support, in no uncertain terms, establish that there exists a bona fide long-standing dispute as to who is the owner of the suit property - the appellants or Respondent 1 (Union of India).
51.2. Second, Respondent 1 itself admitted that there exists a bona fide dispute between the appellants and Respondent 1 (Union of India) over the suit property involving disputed questions of facts (see paras 7, 8 and 18 of the -9- WP No. 100977 of 2021 review petition filed by Respondent 1 in Civil Appeals Nos. 608-12 of 1980 against the appellants in respect of suit property in this Court).
51.3. Third, Respondent (Union of India) itself stated in this Court in earlier round of litigation while disposing of their Civil Appeals Nos. 609, 611-613, 614 and 621 of 1980 that they would seek dispossession of the appellants from the property in question in accordance with law and, if need be, by filing civil suit in the civil court. The respondents cannot now be permitted to go back from their statement and take recourse to a remedy of summary procedure under the PP Act, which is otherwise not available to them.
51.4. Fourth, this Court while granting special leave to appeal on 3-8-200917 had also granted liberty to Respondent (Union of India) to file civil suit against the appellants, if they are so advised. It was, however, not resorted to.
51.5. Fifth, the effect of quashing the resumption notice dated 21-1-1971 issued by the respondents by the High Court vide order dated 5-2-19792/6-2-1979 in relation to the suit property was that Respondent (Union of India) was not entitled to resort to any kind of summary remedy to evict the appellants from the suit property not only under the Bombay Land Requisition Act, 1948 but also under the PP Act because the PP Act also provides similar summary remedy of eviction.
51.6. Sixth, the civil court alone could try and decide the question of declaration of ownership of any immovable property between the parties and such disputes could not be
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WP No. 100977 of 2021 decided in summary proceedings under the PP Act.
59. Yet, last submission of the learned counsel for the respondents that the writ petition was not maintainable to challenge the notice issued under Section 4 of the PP Act has no merit and deserves rejection. Suffice it to say, firstly, the High Court having entertained the writ petition and dismissing it on merits, this objection does not survive for consideration and secondly, in the light of long line of decisions on this question, a writ petition to question the legality and correctness of the notice issued under any Act is no bar in entertaining the writ petition in appropriate case. The case at hand was regarded as an appropriate case for entertaining the writ petition (see Siemens Ltd. v. State of Maharashtra and Whirlpool Corpn. v. Registrar of Trade Marks)."
9. In view of the ratio in the above decision, when a person against whom a notice under Public Premises Act is issued, if such a person rises a bonafide dispute about his right to remain in occupation over such land, the summary remedy to evict such a person under the Act cannot be resorted to. A statutory authority cannot by exercise of powers under the Public Premises Act short-circuit the process and procedure of lawfully evicting a person
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WP No. 100977 of 2021 in possession without following due process of law. In such a situation, when a writ petition is filed questioning the very jurisdiction of issuance of a notice under Section 4 of the Public Premises Act, a writ petition would be maintainable to question the legality and correctness of the notice issued under the Public Premises Act.
10. Sri.Umesh Ainapur, learned counsel for respondent No.1 would submit that the names of the petitioners were not found in the revenue records and therefore the petitioners cannot claim to be in possession of the properties or owners of the properties. He submits that the Respondent No.1 has exercised powers on the basis of the notification issued by the State designating respondent No.1 as the competent authority under the Act.
11. A perusal of the notification issued by the State does not also identify the properties of the petitioners to be that belonging to Karnataka Neeravari Nigam
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WP No. 100977 of 2021 Limited. The competent authorities have been appointed division wise without the state identifying the properties allegedly owned by KNNL. There is a complete non-application of mind by the state in this regard. It was but required that the properties belonging to KNNL be identified with proper reference to property number, boundaries and extent. The issuance of such notification has resulted in mischief being caused by the competent authority, who has sought to exercise power over the property of the petitioner merely because it comes within his division, as if to say all the properties in his division belong to KNNL, without even establishing any such right.
12. The property of the petitioners has neither been acquired nor compensation paid to the petitioners despite the Hakkupatra having been issued by respondent No.3-Tahasildar in favour of the petitioners. The only reason stated by Sri.Umesh
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WP No. 100977 of 2021 Ainapur is that names of the petitioners are not found in the revenue records. When Hakkupatra have been issued by the Tahasildar such a contention by the KNNL is impermissible. Be that as it may in what manner KNNL claims ownership over the properties is not established.
13. If there are disputes between the KNNL and the revenue department, it is for the KNNL and revenue department to sort it out among themselves.
14. In the present case, the Tahasildar having categorically stated that Hakkupatra have been issued in favour of the petitioners another arm of the Government namely Karnataka Neeravari Nigam Limited which is stated to be a registered company cannot seek to exercise powers under the provisions of the Act to evict the petitioners by resorting to such summary proceedings.
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WP No. 100977 of 2021
15. It is for the Karnataka Neeravari Nigam Limited to establish its rights over the property by instituting appropriate proceedings and in the event of succeeding in those proceedings to initiate such proceedings for eviction as may be permissible under law.
16. With the above observation, the petition is allowed.
The order dated 06.03.2021 passed by the XII Additional District and Sessions Judge, Belagavi sitting at Gokak in M.A.No.2/2020 at Annexure-H is quashed. Notices dated 16.11.2018 at Annexure-E and E1 are also quashed.
Sd/-
JUDGE SH