Karnataka High Court
Sri C K Subramanyam vs The State Of Karnataka on 3 September, 2009
Author: Anand Byrareddy
Bench: Anand Byrareddy
EN THE HIGH COURT OF KARNATAKA AT BANGAEIORE
DATED THIS THE 3"' DAY OF SEPTEM_B§El?;.i2iQQ§3'
BEFORE:
THE HON'BLE MR. JUSTI'CEi'»AN:_fiN§i4B.§i 4I{A!§E3;)§§'{.;V_Ai
WRIT PETITION N5.4382 o§i2007 (GiM--.PP)m 5
CiW.WRIT PETITIO«N."NO.2769 _OF.?;00'?
WRIT PETITION..NQ4396 OF 2092
WRIT PETITION No.43s2i oF20'07
BETWEEN:
Sri.C.I§.Subfar§Ianya.ni, h" _
Son ofliate'GV.K.'}{oi:§anda:aiiI;Iiah Shett,
Aged ab'o1VJt"55 years-.-..''- it
Residing at ~P_Voiytechni'c Road,
in front of Theosophical Soc iety,
' _ ChiIitarina1I.i;5631.25; ---------- -A *
, Kola: DIES.'-1J'.i'(:A.[&._V ...PETITIONER
{_B3,v._V.'f'>i1I'Vr'i.:iV_;La§Siiminarayana. Advocate)
Tiiis Writ Petition is filed under Articies 226 and 227 of the
'A.Co-restitution of India praying to quash the impugned order/notice
passed by the Respondent dated 13.2.2007 vicie Annexure.H as
-*-one Without jurisdiction and nullity in the eye of iaw and cieclare
that the proceedings initiated Lmcier the Karnataka Pubiic Premises
(Eviction of unauthorized occupants) Act, 1974 is totaily ultra
vires and cannot be exercisabie as against the Petitioner's property
3
I-J
since the same is not Government or Public Works;'I3epa::ti1ie;nt'~o1'
local autho1~ity's property and etc., " "
WRIT PETlTION.NO.2769 OF ?.O0'ii'._ t T? 4'
B ETWEEN:
Smt.A.R.Sandhya Rani, .
Wife of A.N.Ramesh Babitg.
Aged about 40 years. i V " '
Residing at'l\/I.G.Road, A
Chizttamani-56.3«l«?,__5_-,.
KolarDist1'ic_t.?_4 . _V id' ...PE"Fi'l"IONER
(By "
W:'i_t_ Peifi-t.i()"I'_'lS'--.i:liiiQ_£l under Articles 226 and 227 of the
Constitution of India' to quash the impugned order/notice
passed by the 'Respond_ei'tt" dated 23.2.2007 vide Annexure.U as
one._§witi1out jut"is.diction and nullity in the eye of law and declare
'i V' that they-proceedings""i'i'Iiti_ated under the Karnataka Public Premises
~ (VEv_f;cti.oi;l.yGf_iun_autho1'ized occupants) Act,' 1974 is totally ultra
vitestanvd-«.cannot_1be exercisable as against the Petitioner's property
since' the is not Government or Public Works Department or
local au_t'ho1fi'ty's property and €EC.,
C PETITION.NO.4396 OF 2007
V' S1'i.C.K.Sub1'amanyam,
"Son of Late G.K.Kodancla1*amaiah Shett,
Aged about 55 years.
Residing at Polytechnic Road. (g
DJ
In front of Theosophical Society,
Chintamani--563125,
Kola; District. ' _
(By Shri.V.Lakshrninarayana, Advoi;ztte:):AiTi ;
This W1'it Petition is riisarstisiiiier A.1""tic1.es=.2'2_6uanid'1?.2;7 of the
Constitution of India praying to qe-asl'i-..the irnpngnedfiorder/notice
passed by the Respondent tiaiedl' t1:3.2.2'e.o7 vide"'A'nnex.ure.H as
one without jurisdiction "and.m~s11.i':.ye;(e of iaw and declare
that the proceedings initiated tender the.-Karnataka Public Premises
(Eviction of unauthorized"'oc§cnp'antS_) Actj 1.974 is totally ultra
vires and cannot he-exeré:isabie as'Vaga.i11s.t_.tl1e Petitioner's property
since the sa.me'"i.s iilotg'.G'c\{c_;-nrnenit or Public Works Department or
local authorit)/'--;s__p{opei'ty_Vanti etc-.i; V'
AND::V.
1. The'S.t_ate of Ka1'nataiia.
5 Representediiy its Secretary,
" Pub} ic Works...D.epafin1eiit,
NI;S._B"a.§lding,
i _ iasaigaigresseo 00: .
2; V Theifitatie of Karnataka,
Represented by its Secretary,
"Department of Municipal Administration,
M.S.Bui1ding,
Banga1orc--56O 001.
The Chief Engirzeer, (C & B)
Public Works Department,
M.S.Building,
Bangalore--560 O01.
~43». The Executive Engineer,
Public Works Depzmmeiit,
Koiar Division,
Kolar.
5. The Assistant Executiv'eF._ngineei*;"- V
Public Works Depzmment,"
Chinthamani Sub--,D.iVision--,------
Chinthamani, ' 5 _ ~
Kolar District.
6. The Desjignzited AippijopfiziteiALLtt_horii;y,i
(UndQif..K,,afE:§ii£1i<&. l?«I1_bi.i_c Piferjrfivses
eVv.ictio'n._oi' :L.'*-;r;;1_a_L11}'i_(i1~if/_?.'e:i" ()(3_Cfi}]I)ilf1tS')
Act, as and Estate Officer,
The'-Assistaiit-~ E.i]giI1€€F,
Public Wm-igs Dena;-t_iiae'1it,
Chinthamani ~Subv¥D«i._v"isi()11,
; ' ChinthainaVn'i,'i '
V 'Distriict».-- ---------- -A *
i. Municipal Council,
" - Rep_ije_se~r,1ted by Commissioner,
Chin.th.:i'mani Town,
i zC'hi11thaInani.Taluk,
Iéolar District"
RESPONDENTS
(COMMON)
"'~(By Sh.ri..Basavaraj, Goveinment Pleadei" for Respondentl to 6,
Shi'i.P.N.Nanja Reddy, Advocate for Res£o11dent.7)
5
These. Writ Petition coming on for hearing this day, the
Court made the following: -
O R D E R
The petitioners claim as the absolute owners o:f.___sites of various dimensions situate at Chintamani and the i'espohde«nt ---- City Municipal Council has issued an assessmeiitlist .ijnt.respecti of the land and buildings and has in respect of. the same. The taxes p'a.id'*..fromjp,t.érrie 'to'1--ititneV'--is evidenced at r'\it5n_nex:t.i<res;. 'tothe w aitipetit ions.
2." The petiti.ioners..é_c'l«ai'm to have been in possession and enjoyment fol'-.Aseveral' decades. it transpires that the Town Chintamani had, by a resolution dated 30.9.l963, bfiiught' th~e___sai'i;'d"'pr<)perties to sale. Thereafter, the petitioners had putdup construction and enjoyed the properties.
it However, the respozzdents had initiated proceedings under the. provisions of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974 (heginafter referred to as the 'Public Premises Act'. for brevity), by issuing a".shoii\:';v,g~icvwa.use notice under Section 4(1) of the Public Preniiisesjgétctiii petitioners had furnished detailed zvexplaiiatiions-:' itiiesarne'. tot', contend that they are not unauthorised'occupants, the 'absolute owners of the property and that are lavvf occupation and are paying property tai'xes'p«--to 7I_:he,.lo'c«a,lr.giuthority. However, the proceedings have._culmin.ate.,d'i.n 'l1()ldirii.f'thati,.,tEie petitioners are all unauthorised, occtiipaiitss "anid._Vthe_y are cal1l'ed upon to vacate and hand over v'a:iia_11t ;'§;)'s:;;:'s»;;.i:m of the properties though they are absolute owners' thereo Fi P " -. " =
-- , 'lt"is_icontend'edithat the authority had no power to issue orders eviction under the provisions of the Public Premises Act and eiy'en""thouigl1" there is a provision for filing an appeal against the"orde1* "(iii eviction and since the order passed is without ju1ris_.dictiion and since the Act wouid not apply to the petitioners herein, as the properties could not be treated as public premises as "defined under Section 2(e) of the Egblic Premises Act, the Kannada 'Prabha on 16.7.2005 and that in View o_f;"t'iie..iyinipending threat of eviction, the present petition is file.d._--""~--
5. It is contended that_?pren1i.sesi'"-has beendefine'd"*t1nder section 2(e) of the Act. It is .pi'cmises"lieldib1y ztyperson based on a tease and allotted Goyetn«roeyiit«or local authority, and if it belongs to the goveifnnient or. the lioc.al"2iu'th(irity, then only the subject is criyereiigliiiiiby«Section 2{e.j)yitat;:the Public Premises Act, otherw_i.se_the._Act1.:h_aVs no The property beionging to the petitio--ne1's d(i5iV$'~..1'4lV(')lyEi.i'I"x--..SA".\i?iiI'%3!i the definition of 'public premises'. The order*h_;isvtbeie-n in the face of subsisting orders of stt{tu¢s--qtic; passed--.--...in' pending matters before this court and tiiereforeithere"-is violation of the order of this court in the same I haying Insofaras the contention that the petitioners pate in u_nautho1"ised occupation and that the properties have to be i vtie-rzfiolished for the purpose of widening of the road is concerned, i ' -"the respondents have not taken any steps under the provisions of the Karnataka Highways Act, 1964. eithet by declaring the 45 9 roadways or kinds as highways in terms of Section 3 th_e.r__eof and they have not appointed any officei" as highway autho'i'it'ies~v.iand there is no buiiding or cohtrok line pubiished in terniis nor have any acquisitéon pi"()ceediiigs beer:i_iri.itiL1ted"in respect'. of 7. the properties and the action_ot' the----Aresponden.isi:is; th.erefoie, without authority of iaw. The vuC;'o_u'11s_ei vxrotitidtiience submit that the Petition be alioweciv.
6. The State Go\{er-n.r.hent' hjtu-:y'contes'ted"the petition and the Govern-11'ie--iit P1éa:ije':i; Twouttti "veherneiitiy submit in support of the statement '()'t7_Vobjecti_t)ns_,it that the petitions are not maintainabie in th(;':r_:§"ightV()fT,y_an appeal--«E1av'ing been provided under section E0 of _ the."P.u"t:«E,_ic Pzzemuises Act. The petitioners are in unauthorised occupation: "o_1"v21rioLiS sites. The contention that they are owners of the s.ites are not evideneeti by title deeds produced either before A' --..this..ucourt or before any other authority. The property originally " »v--belonged to the Public Works Department and the Town Niunicipaiity had no right to auction or pass 2: resoiution to bring 3 10 the property to sale and could not have sold the properties to third- parties, inciuding the petitioners. Even if the _property_had been brought to sale, there has been no sale deed executed"ih"fa'vou_r of the purchasers and any resoiution passed by the munieiip-aiity necessarily had to be approveci by tlgeiétate .G'ove1nrrie1it.,VVivhicii is 7. not forthcoming. On the other hand-,h the Govétrnrrientiifleatier draws attention to a F€S0iuliOI1 by the. 'i"S'ti-zteifxovernment, rejecting the proposal. itoibring: ztrgyiihpropyeity to sake by the Town Municipality'.~eh/Ie1'e§,éipiotiuetion outiassessment iist or property tax receipts," _i[Si€3.f,ii'W0tti'éi_T.iI1(3iI disclose that the petitioners are owners of the property!' it is in this background that notices were is-sued undefithe provisions of the Public Premises Act and after hoi-ding' eiiquiry, findings have been arrived at and the petiiionersiiaviiig suffered orders of eviction cannot chailenge the same by recourse to the present writ petition since alternative iigemedy of appeai is avaiiable to the petitioners.
3 l l
7. it is contended that the provisions of the Highways Act, 1964, has been strictly followed by the authority and-._»as the property belongs to the State Government, the piines and control lines per the Highways Act the Official Gazette. Since the petitioners«were not'--th'e..of the property in question, the .:1'ct..i__on ll"ll".'l_'cll€d i:;.i'onV}y__vto evict the petitioners who are in unauthorisedoccttpation of the same. Hence, invocation of thel"pi'l()viS.it)t{_s :c)i""A;nilcles 14, l9,21 and 300A of the,"C<)iisti~t.iit:i_oniiis Any alleged action by the Town Mzgnicipa},Coit1nc'i'l-..iw-::'t1l(i not bind the State Government since' the property' i§el(_i'z1gs to the State Government. _It has no right to co_nve1*t the road boundary into sites and auction the H "i'€o_'«..registered documents are produced. Hence, action initi'ateéi_under the Public Premises Act is in order. it is in this 2 veinpthat the statement of olajections proceeds.
8. The counsel zippeziring for the Town Municipal Council however remains a mute witness to these p iceedings and wouid submit that it is a fact that the Town MunicipalCot}-nca.il"-.has auctioned the properties and issued a sale cer_tifi_cj_awte' to'-the' petitioners several decades ago.
9. The counsel for the pjetitpicinehrs._wonlld.: stzbltttit that the competent officer as clefined ui}tlei'--Athe }"x:':_t wotllti-mean an officer appointed under section 3 of Act. The State Government by' t:otIil'ica;t._i()i1 1'eqti'ire'd.. rtojrfappoint such officer as prescribed t1nde_rsectl't>i14_3';.l.fjlnl 'the instant case on hand, in several appeals--ip1'el'ei*1'ed'aigailnst"order passed by the very officer who has passe{lxrhe.,evlitition:order in the present case, the appellate authority' has heid._t__l_1at. there was no notification appointing the _ .A said oflf_it:e:i44as;Vthe competent officer' under the provisions of the I Pttbllicmillse_$Vl_i.~Act. This would clearly apply to the present case aslvlvell Etittji the concerned ofl'ice.r not being appointed by a noti-fica.tior. "issued by the State Government, was not competent and itzis this light that it is contended that the order having been rertd*e1'ed without jtirisdiction, the petitioners are not precluded 3 13 from chaileiigiiig the order as being without jurisdiction before this court and cannot be called upon to prefer an appeal agaiiist the order, when the order impugned is without jurisdicti-en,' t-
10. The other chcumstzmce that the as» having purchased the properties in an aiu.ction4'saleA.'and'»have.,he'en i' in possession over the decades, not.$ei'ioLisl.y'ldlisgqutedl by the Town Municipal Council. -Goveriinient, fithrough the Government Pleader, lseelgiinig l"conte'tt--d_ that they are unauthmistztt occup'aii1t>;.,e1'it'itt..that the Town Municipal Council had no authoriltiy-to bring tlieliptgopeirty to sale, which rightly belongs to the;':p_StateV'Govei*ni*tici.it._..and that the stile was not approved by the _ State' Go.ver.ii"nieiit, are contentions that cannot be readily accepted. The long potgselssioii of the petitioners and the recognition of such posseésioh by the local authority. namely, the Town Municipal
--..Coun'cil which has also collected property taxes and allowed them 'V construct. on the said land, would require the State Government to initiate appropriate action, in thst of all having declared the 6 property as belonging to the State Goveinrneiit and thereiafiftetr to take action for their ejectment. The mere coiiteritionwiV'e'thzitl_"'_"the Town Municipal Council had no at:.'thoi9ity to sell.lthe_ _p;ro--e«erty. is 1'. not available to the State Gove;7n_i1ieiit.'--.On tl1e oti'_1e.r'ii.é;nd;< if it'--i.S in a position to demonstrate that t"li.e'is:ile the"'Munic:ipal Council was a nullity in the 'f.irE§ti instanceVth'i"s;.ought to have been demonstrated at an 6t1l'll.t?vl'V--.p_(l'l.Ill' --of._ti1iie,. State Government having 1'e1n2_i.ii1ed5?c1rii7in£ti_it:over the 'decades in allowing the petitioners ito§'enti'eii1cli_thei_inse.lves, is not in 21 position to now claim that the petiti-:5i:eli*s-..__ui'e."'rank trespassers and require to be suminariiy evi-ctedlbylrecourse to the provisions of the Public Psreiitiisesl Therefore, unless there is d declaration that the sold to the petitioners and that the lands rightly belonged' toithe State Government. the petitioners being sought to 2 heitiistvurbeti and their property sought to be demolished would be lliiegai.
Accordingly, the writ petitions are zillgved.
Annexure--H m WP 4382/2(j)()7, A11nex_.fi1*€§¥ LI --.'._j:i_'f1i 2769/2()(')7, and Annexwwa in WP 439$/2()()7"a;e: '§1'a1.;2iS';':iedA.V @ "
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