Karnataka High Court
H Mahesh S/O Huligemma vs The State Of Karnataka on 23 August, 2023
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
-1-
NC: 2023:KHC-D:9440-DB
WA No. 100405 of 2022
C/W WA No. 100159 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF AUGUST, 2023
PRESENT
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
WRIT APPEAL NO. 100405 OF 2022 (GM-PP)
C/W
WRIT APPEAL NO. 100159 OF 2022
IN WA NO.100405 OF 2022:
BETWEEN:
H. KHASIM S/O. H. KHADAR BASHA,
AGED ABOUT 36 YEARS, OCC: BUSINESS,
R/O: WARD NO-20, ADHONI MAIN ROAD,
SIRUGUPPA-583121, DIST: BALLARI.
...APPELLANT
(BY SRI.S.G.KADAKATTI, ADVOCATE)
AND:
THE CITY MUNICIPAL COUNCIL,
SIRUGUPPA-583121,
DIST: BALLARI, BY ITS COMMISSIONER.
...RESPONDENT
KM
(BY SRI.B.SHARANABASAWA, ADVOCATE)
SOMASHEKAR
HIGH COURT OF
KARNATAKA
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
DHARWAD
BENCH
COURT ACT, 1961, PRAYING THIS HON'BLE COURT TO, CALL FOR
2023.09.13
10:51:00 +0530 RECORDS; SET ASIDE THE DATED 27.09.2022 PASSED BY THE
LEARNED SINGLE JUDGE IN W.P.NO.103707/2022 BY ALLOWING
WRIT APPEAL IN THE ENDS OF JUSTICE.
IN WA NO.100159 OF 2022:
BETWEEN:
H.KHASIM S/O. H.KHADAR BASHA
AGED ABOUT 36 YEARS, OCC: BUSINESS,
R/O: WARD NO-20, ADHONI MAIN ROAD,
SIRUGUPPA-583121, DIST: BALLARI.
...APPELLANT
(BY SRI.S.G.KADAKATTI, ADVOCATE)
-2-
NC: 2023:KHC-D:9440-DB
WA No. 100405 of 2022
C/W WA No. 100159 of 2022
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF URBAN DEVELOPMENT,
M.S.BUILDING, DR. AMBEDKAR VEEDHI,
BENGALURU-560001.
2. THE DEPUTY COMMISSIONER
BALLARI DISTRICT, BALLARI-583101.
3. THE BALLARI URBAN DEVELOPMENT AUTHORITY,
BALLARI-583101, BY ITS COMMISSIONER.
4. THE CITY MUNICIPAL COUNCIL,
SIRUGUPPA-583121,
DIST: BALLARI, BY ITS COMMISSIONER.
5. SRI. M.PANDURANG SHETTY,
S/O. MURARI VENKATANARASAIAH SHETTY,
AGED ABOUT 70 YEARS, OCC: BUSINESS,
R/O: B.M.SUGURU VILLAGE-583114,
TQ: SIRUGUPPA, DIST: BALLARI.
...RESPONDENTS
(BY SRI.G.K.HIREGOUDAR, GOVT.ADVOCATE FOR R1 AND R2;
SRI.Y.LAKSHMIKANT REDDY, ADVOCATE FOR R3;
SRI.B.SHARANABASAWA, ADVOCATE FOR C/R4;
SRI.S.S.YADRAMI, SENIOR COUNSEL FOR
SRI.GIRISH BHAT, ADVOCATE FOR R5)
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
COURT ACT, 1961, PRAYING THIS HON'BLE COURT TO, CALL FOR
RECORDS IN W.P.NO.100861/2022; SET ASIDE THE ORDER DATED
21.02.2022 PASSED BY THE LEARNED SINGLE JUDGE IN
W.P.100861/2022 BY ALLOWING THIS WRIT APPEAL.
THESE WRIT APPEALS COMING ON FOR ORDERS, THIS DAY,
S.R.KRISHNA KUMAR J., DELIVERED THE FOLLOWING:
-3-
NC: 2023:KHC-D:9440-DB
WA No. 100405 of 2022
C/W WA No. 100159 of 2022
JUDGMENT
Both these appeals are preferred by the very same appellant Sri. H. Khasim, who claims to have purchased the subject premises vide registered Sale Deed dated 8.6.2016 from one M. Panduranga Shetty. The appellant contends that pursuant to the aforesaid document, revenue records in relation to subject premises have been mutated and changed into the name of the appellant. The respondent No.4-CMC having issued notice dated 25.01.2022 to the appellant under Section 4 of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974 (for short, 'KPP Act'), the appellant submitted his reply dated 3.2.2022 refuting all the allegations and contentions urged in the notice and an order dated 18.02.2022 was passed by the respondent No.4-CMC under Section 5 of the KPP Act directing eviction of the appellant from the subject premises.
2. WP No.100861/2022 was preferred by the appellant challenging the aforesaid eviction order passed -4- NC: 2023:KHC-D:9440-DB WA No. 100405 of 2022 C/W WA No. 100159 of 2022 by the respondent No.4-CMC and the said petition was dismissed by the learned Single Judge vide impugned order dated 21.03.2022 which is assailed by the appellant in WA No.100159/2022.
3. Subsequently, the appellant challenged the said eviction order dated 18.02.2022 passed by the respondent No.4-CMC in MA No.43/2022, which was dismissed by the District Judge vide order dated 22.08.2022 and confirmed by the learned Single Judge in WP No.103707/2022, dated 27.09.2022, aggrieved by which, the appellant has preferred the present appeal in WA No.100405/2022.
4. Heard the learned counsel for the appellant;
learned Government Advocate for respondents No.1 and 2; learned counsel for respondent No.3 and learned counsel for respondent No.4 as well as learned Senior Counsel for respondent No.5. Perused the material on record.
5. A perusal of the impugned order passed in WP No.100861/2022 will indicate that the learned Single -5- NC: 2023:KHC-D:9440-DB WA No. 100405 of 2022 C/W WA No. 100159 of 2022 Judge has followed his earlier order dated 21.03.2022 passed in WP No.100862/2022, whereby the said writ petition was dismissed. So also, in WP No.103707/2022 also the learned Single Judge dismissed the writ petition by placing reliance upon the earlier order passed in WP No.100862/2022 referred to supra. In this context, it is relevant to state that the said order passed in WP No.100862/2022 was challenged by the writ petitioner therein in WA No.100181/2022, which was allowed and disposed off by this Court vide order dated 23.08.2023, whereby the eviction order as well as the order of the learned Single Judge were set-aside and the matter remitted back to the respondent No.4-CMC for reconsideration afresh in accordance with law. In the said order passed in WA No.100181/2022, this Court has held as under:
This intra-court apeal is directed against the impugned order dated 21.03.2022 passed in WP No.100862/2022 whereby the said petition filed by the appellant was dismissed by the learned Single Judge.-6-
NC: 2023:KHC-D:9440-DB WA No. 100405 of 2022 C/W WA No. 100159 of 2022
2. The material on record discloses that the appellant claims to be the owner of the subject premises having purchased the same from its erstwhile owner, Pandurang Shetty vide registered Sale Deed dated 29.12.2009 and that the revenue records have been mutated in his name and that the petitioner has put-up construction on the subject premises. It was contended that the 4th respondent issued notices under Section 4 of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974 (for short, 'the KPP Act') calling upon the petitioner to vacate and hand over the possession of the subject premises to them. The appellant contends that though he submitted a reply dated 17.12.2021 putting forth various claims and contentions, the respondent No.4 proceeded to pass the impugned order dated 18.12.2021 under Section 5 of the KPP Act, which was without jurisdiction or authority of law and contrary not only to provisions of the KPP Act but also violative of principles of natural justice. Under these circumstances, the appellant preferred the instant petition which was contested by the respondent No.4 culminating in the impugned order dismissing the petition which is assailed in the present appeal.
3. Heard the learned counsel for the appellant and learned cousnel for respondent No.4 and perused the material on record.
4. A perusal of the impugned order will indicate that the learned Single Judge has dismissed the petition on the ground that the subject premises purchased by the appellant had been reserved for park/public purposes and the same had been upheld by thsi Court in WP -7- NC: 2023:KHC-D:9440-DB WA No. 100405 of 2022 C/W WA No. 100159 of 2022 No.67950/2010 dated 15.3.2011 filed by the appellant's vendor, Sri.Panduranga Shetty. Accordingly, the learned Single Judge came to the conclusion that there was no merit in the petition and proceeded to dismiss the same.
5. In our considered opinion, the impugned order of eviction dated 18.12.2021 passed under Section 5 of the KPP Act is illegal, arbitrary, violative of principles of natural justice and the same as well as the impugned order passed by the learned Single Judge are erroneous and contrary to the material on record and deserve to be set-aside inasmuch as the learned Single Judge has failed to consider and appreciate that the impugned order dated 18.12.2021 passed by the 4th respodnent directing eviction of the appellant from the subject premises is violative of principles of natural justice.
6. In this context, the learned Single Judge has failed to appreciate that the material on record discloses that pursuant to notices issued by the 4th respondent under Section 4 of the KPP Act, the petitioner submitted his reply dated 17.12.2021 putting forth various claims and contentions as to why the proceedings are not maintainable and deserve to be dropped. However, the 4th respondent has proceeded to pass the impugned order in a hurried manner on the very next date i.e. 18.12.2021 without considering the said reply dated 17.12.2021 and without providing any opportunity whatsoever to the appellant nor hearing him and consequently, the impugned order passed by the 4th respondent is clearly violative of principles of natural justice and the same deserves to be quashed and failure on the part of the learned Single Judge to appreciate this -8- NC: 2023:KHC-D:9440-DB WA No. 100405 of 2022 C/W WA No. 100159 of 2022 has resulted in erroneous conclusion.
7. The learned Single Judge has also failed to appreciate the specific contentions urged before us on behalf of the appellant that except the fact that certain portions of the layout have been earmarked for the purpose of public/park purposes, no documents/deeds/conveyances viz., relinquishment deed/release deed had/have been executed by either the original owner Panduranga Shetty or by the petitioner herein in relation to subject premises in favour of any of the respondents incluidng respondent No.4 so as to entitle/enable it to institute proceedings under the KPP Act against the appellant. The learned Single Judge has also failed to appreciate the contention of the appellant that in the absence of any registered document/deed/conveyance executed by Panduranga Shetty in favour of 4th respondent, the 4th respondent has not acquired any manner of right, title, interest or possession over the subject premises and consequently, the 4th respondent cannot invoke the provisions of the KPP Act or initiate proceedigns seeking eviction of the appellant from the subject premises. The impugned order neither addresses this contention nor consider the issue regarding title/lack of title on the part of the 4th respondent over the subject premises as well as the issue/question as regards applicability/non-applicability of the KPP Act to the same on account of lack/want of title of the 4th respondent over the subject premises and as such, failure on the part of the learned Single Judge to consider and appreciate these aspects of the matter would also vitiate the impugned order, which deserve to be set-aside on this ground also.
-9-NC: 2023:KHC-D:9440-DB WA No. 100405 of 2022 C/W WA No. 100159 of 2022
8. The learned Single Judge committed an error in placing reliance upon the earlier order of this Court in WP No.67950/2010, dated 15.3.2011 filed by Panduranga Shetty, erstwhile owner in order to dismiss the claim of the appellant. In this context, the learned Single Judge has failed to appreciate that the said petition was filed by Panduranga Shetty in relation to change of revenue records in respect of the sites formed in the layout and though this Court declined to interfere in the matter, liberty was granted in favour of the said Panduranga Shetty to submit a representation in relation to the layout. In this context, it is relevant to note that during the pendency of the present appeal, the appellant filed IA No.1/2022 seeking impleadment of the said Panduranga Shetty in the present appeal for the purpose of safeguarding the right of the appellant, in whose favour he had sold the subject premises on 29.12.2009 prior to Panduranga Shetty preferring WP No.67950/2010 referred to supra. Under these circumstances also, in order to provide one more opportunity in favour of both the appellant and the said Panduranga Shetty to put-forth their respective contentions before 4th respondent, who is to be directed to consider the same and take appropriate decision and pass appropriate orders in accordance with law, we deem it just and appropriate to set-aside the impugned orders of the 4th respondent and the learned Single Judge and remit the matter back to the 4th respondent for reconsideration afresh in accordance with law.
9. Insofar as various contentions urged by the 4th respondent are concerned, in view of conclusion
- 10 -
NC: 2023:KHC-D:9440-DB WA No. 100405 of 2022 C/W WA No. 100159 of 2022 arrived at by us above, in the facts and circumstances of the case, whereby we have remitted the matter back to the 4th respondent for reconsideration afresh in i accordance w ith law and without expressing any opinion on the same, we deem it appropriate to leave open all contentions to be decided by the respondent No.4-CMC by passing a speaking and reasoned order bearing in mind all the contentions of the parties and the observations made above.
10. In the result, we proceed to pass the following:
ORDER
a) Appeal is hereby allowed.
b) The impugned order dated 21.03.2022 passed in WP No.100862/2022 as well as the impugned order dated 18.12.2021 passed by the 4th respondent-CMC are hereby set-aside.
c) The matter is remitted back to the 4th respondent for reconsideration afresh in accordance with law after notifying the appellant as well as Sri. M Panduranga Shetty S/o Murari Venkatanarasayya Shetty, B.M. Suguru village-583114, Siruguppa Taluk, Ballari District and hearing both of them and by providing sufficient and reasonable opportunity to them and in accordance with law.
d) Liberty is reserved in favour of the appellant as well as the aforesaid M. Panduranga Shetty to appear before the 4th respondent and file their respective pleadings, documents etc., and contest the proceedings initiated by the 4th respondent under the KPP Act in respect of the subject premises.
- 11 -
NC: 2023:KHC-D:9440-DB WA No. 100405 of 2022 C/W WA No. 100159 of 2022
e) All rival contentions between the parties are kept open and no opinion is expressed on the same.
6. As can be seen from the aforesaid order, the matter has been remitted back to the respondent No.4- CMC for reconsideration afresh in accordance with law after providing an opportunity to the appellant therein and Pandurang Shetty to put-forth their respective contentions. It is an undisputed fact that the subject premises involved in the present appeals is also situated in the same layout and since the impugned orders passed in the instant writ petitions in WP No.100861/2022 and WP No.103707/2022 are based upon the earlier order passed in WP No.100862/2022, which has been set-aside by this Court in WA No.100181/2022, we are of the considered opinion that the impugned orders passed by the learned Single Judge in both WP No.100861/2022 and WP No.103707/2022 as well as the impugned eviction order dated 18.02.2022 passed by the respondent No.4-CMC and also the order of the appellate Court in MA
- 12 -
NC: 2023:KHC-D:9440-DB WA No. 100405 of 2022 C/W WA No. 100159 of 2022 No.43/2022 deserve to be set-aside and the matter is remitted back to the respondent No.4-CMC for reconsideration afresh in accordance with law and in terms of final order dated 23.08.2023 passed in WA No.100181/2022.
7. In the result, we proceed to pass the following:
ORDER
a) Both appeals are allowed and disposed off in terms of order dated 23.08.2023 passed in WA No.100181/2022.
b) The impugned orders passed by the
learned Single Judge in both WP
No.100861/2022 and WP No.103707/2022 as well as the impugned eviction order dated 18.02.2022 passed by the respondent No.4-CMC and also the order of the appellate Court in MA No.43/2022 are hereby set-aside.
c) The matter is remitted back to the
respondent No.4 for reconsideration
afresh in accordance with law after
notifying the appellant as well as
respondent No.5-Sri. M Panduranga
- 13 -
NC: 2023:KHC-D:9440-DB
WA No. 100405 of 2022
C/W WA No. 100159 of 2022
Shetty S/o Murari Venkatanarasayya
Shetty and hearing both of them and by providing sufficient and reasonable opportunity to them and pass appropriate orders in accordance with law.
d) Liberty is reserved in favour of the appellant as well as respondent No.5-M. Panduranga Shetty to appear before the respondent No.4 and file their respective pleadings, documents etc., and contest the proceedings initiated by the respondent No.4 under the KPP Act in respect of the subject premises.
e) All rival contentions between the parties are kept open and no opinion is expressed on the same.
Sd JUDGE Sd JUDGE JTR List No.: 1 Sl No.: 30