Karnataka High Court
D Laxmi W/O D Narayanappa vs The Tahasildar, Bellary on 5 February, 2013
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 5TH DAY OF FEBRUARY, 2013
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
WRIT PETITION No.75832/2013 (GM-PP)
BETWEEN:
1. D.Laxmi,
W/o D.Narayanappa,
Age: 44 years,
Occ: Housewife,
R/o Talur Road, Ward No.1,
Near Canal, Tq/Dist: Bellary.
2. D.Narayana,
S/o Ramappa,
Age: 52 years,
Occ: Business,
R/o Talur Road, Ward No.1,
Near Canal, Tq/Dist: Bellary. ... Petitioners
(By Sri F.V.Patil, Advocate)
AND:
1. The Tahasildar,
Bellary, Dist: Bellary.
2. The Principal District and
Session Judge,
Bellary, Dist: Bellary. ... Respondents
(By Sri K.S.Patil, HCGP)
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This writ petition is filed under Articles 226 and 227 of the
Constitution of India praying to quash the impugned show cause
notice dated 30.1.2013 issued by the respondent No.1 vide
Annexure-D and etc.
This writ petition coming on for preliminary hearing this
day, the Court made the following:
ORDER
Sri K.S.Patil, the learned High Court Government Pleader is directed to take notice for the respondents.
2. The petitioners have called into question the first respondent Tahsildar's notice, dated 30.1.2013 (Annexure-D) issued under Section 4(1) of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974 ('the said Act' for short). It calls upon the petitioners to show cause as to why the order of eviction should not be passed against them.
3. Sri F.V.Patil, the learned counsel for the petitioners submits that the proceedings under the said Act are initiated at the insistence of the respondent No.2. The property belonging to the Judicial Department does not come within the meaning of public premises. He submits that the provisions of the said Act can be invoked only for vacating the unauthorized occupation and not the encroachment. He submits that under Section 3 4(2)(b) of the said Act, 10 days' clear notice is to be given. In the instant case, only 8 days time is given. Notice bears the date 30.1.2013. It requires the petitioners to give the reply before 8.2.2013.
4. He submits that as the impugned notice is without the authority of law and without jurisdiction, the petitioners have impugned the same. There is no delegation of power in favour of the Tahsildar for initiating the proceedings under Section 3 of the said Act.
5. He submits that way back in 2001, the measurement taken by the officials of the Land Records show that the petitioners' predecessor-in-title has not made any encroachment. The matter, having attained the finality, cannot be reopened after a long gap of 12-13 years. He also takes serious exception to the Tahsildar issuing the notice based on the survey conducted by the Assistant Director of Land Records ('ADLR' for short) on 31.7.2012. The petitioners are given neither any notice of the said proceedings nor a copy of the ADLR survey report.
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6. Sri K.S.Patil, the learned High Court Government Pleader appearing for the respondents submits that the respondent No.2 writing a letter to the Deputy Commissioner is not a part of the records, as such a letter is not produced by the petitioners. He submits that the property of all the Government departments, including the Department of Judiciary, is required to be safeguarded by the Government. He submits that the petitioners are not justified in relying on the measurement taken in 2000-2001, when the latest survey conducted by the ADLR shows that 3 shops and 1 house are constructed by the petitioners on encroaching the Government land belonging to the Judicial Department.
7. He submits that the petitioners are not justified in challenging the show cause notice. They are only required to give a reply and that the same would be considered in accordance with law.
8. The submissions of the learned counsel have received my thoughtful consideration.
9. The definition of 'public premises' given in Section 2(e) of the said Act reads as follows:
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"2(e) "Public premises" means any premises belonging to or allotted to State Government or taken on lease or requisitioned by or on behalf of the State Government and includes any premises belonging to or taken on lease by or on behalf of a local authority, etc."
10. What is unmistakably discernable from this inclusive definition is that the public premises means any premises belonging to the Government. It cannot be said that the expression 'public premises' has no application for the Judicial Department. Similarly, the definition contained in Section 2(g) of the said Act has within its ambit the encroachment too. This Court in the case of THE HORTICULTURE PRODUCERS' CO- OPERATIVE MARKETING AND PROCESSING SOCIETY LIMITED, BANGALORE v. THE COMPETENT OFFICER AND SECRETARY, KARNATAKA BOARD OF WAKFS, BANGALORE AND OTHERS reported in 2000 (6) Kar.L.J.442 has this to say in para 19 of its decision:
"19. To answer this precise question, in my opinion, the relevant provisions of the Karnataka Public Premises (Eviction of Unauthorised Occupants), Act, 1974, requires to be noticed. The object of the Act is to provide for eviction of unauthorised occupants from the public premises. The meaning of the expression 'public premises' is defined under Section 2(e) of the Act. It is an inclusive definition and includes apart from the other 6 public premises, the premises belonging to a wakf under the management of Karnataka State Board of Wakfs. The meaning of the expression 'unauthorised occupation' is defined in Section 2(g) of the Act. The unauthorised occupation in relation to any premises means the occupation by any person of the public premises without authority for such occupation and includes the continuance of the occupation after the authority under which he was allowed to occupy expires......................"
11. The petitioners' reliance on the measurement made by the ADLR in 2000-2001 to the exclusion of the survey conducted in July 2012 is not acceptable. That a copy of the survey report of July 2012 was not made available to the petitioners, that they were notified of the said proceedings, etc. could be the grounds to be taken by the petitioners in response to the notice. It is for the Tahsildar to consider the same. It is also open to the petitioners to challenge the report of the survey conducted on 31.7.2012 by the ADLR.
12. Whether the petitioners have indeed encroached the Government property and put up the construction thereon requires factual determination. It is therefore all the more necessary that the proceedings initiated under the said Act have to be taken to their logical culmination.
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13. It is beneficial to refer to the Apex Court's judgment in the case of JAGPAL SINGH AND OTHERS v. STATE OF PUNJAB AND OTHERS reported in AIR 2011 SC 1123. Para 13 of the said judgment reads as follows:
"13. We find no merit in this appeal. The appellants herein were trespassers who illegally encroached on to the Gram Panchayat land by using muscle power/money power and in collusion with the officials and even with the Gram Panchayat. We are of the opinion that such kind of blatant illegalities must not be condoned. Even if the appellants have built houses on the land in question they must be ordered to remove their constructions, and possession of the land in question must be handed back to the Gram Panchayat. Regularizing such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of villagers of the village. The letter dated 26.9.2007 of the Government of Punjab permitting regularization of possession of these unauthorized occupants is not valid. We are of the opinion that such letters are wholly illegal and without jurisdiction. In our opinion such illegalities cannot be regularized. We cannot allow the common interest of the villagers to suffer merely because the unauthorized occupation has subsisted for many years."
14. The issuance of the notice by the Tahsildar has not put the petitioners to any prejudice. I am informed by Sri F.V.Patil that the petitioners have indeed submitted a reply on 8 1.2.2013. As it is not the case of the petitioners that they could not prepare and file the report within 8 days, I do not propose to nullify the notice itself on the ground of the same giving only 8 days' notice. On the other hand, both the petitioners' interest and the ends of justice would be met by my permitting the petitioners to file the additional objections, if any, within 10 days from today. After considering the petitioners' objections already filed and the additional objections, if the petitioners file within 10 days, the first respondent shall hold the enquiry and conclude the proceedings in accordance with law.
15. This petition in accordingly disposed of. No order as to costs.
Sd/-
JUDGE MD