Karnataka High Court
Sri Dr H S Chandrashekar vs Sri Ramesh on 17 March, 2023
Author: B. Veerappa
Bench: B. Veerappa
1 CCC NO.394/2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF MARCH 2023
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CCC No.394/2017
BETWEEN:
1. SRI.DR.H.S.CHANDRASHEKAR,
SON OF LATE SRI.H.S.SHANTHAPPA,
AGED ABOUT 62 YEARS,
RESIDING AT NO.204, HOSPET,
T.M. ROAD, HULIYURDURGA,
KUNIGAL TALUK,
TUMKUR DISTRICT - 572 123.
2. SRI.K.S.RAGAHAVENDRA
S/o LATE K.P. SRINIVASA RAO,
AGED ABOUT 39 YEARS,
RESIDING AT NO.76, HOSPET,
T.M.ROAD, HULIYURDURGA,
KUNIGAL TALUK,
TUMKUR DISTRICT - 572 123.
3. S.B. LATHA
W/o LATE H.N.MANJUNATH,
AGED ABOUT 42 YEARS,
RESIDING AT NO.333,331,
HOSPET, T.M. ROAD, HULIYURDURGA,
KUNIGAL TALUK,
TUMKUR DISTRICT - 572 123.
4. SMT. H.T. MANJULA
W/o PARAMESHWARAIAH,
AGED ABOUT 60 YEARS,
RESIDING AT NO.328 AND 329,
HOSPET, T.M. ROAD, HULIYURDURGA,
KUNIGAL TALUK,
TUMKUR DISTRICT - 572 123.
5. SRI. H.B. UMESH
S/o LATE BASAVARAJAPPA,
AGED ABOUT 65 YEARS,
2 CCC NO.394/2017
RESIDING AT NO. 691/692,
HALEPET, T.M. ROAD, HULIYURDURGA,
KUNIGAL TALUK,
TUMKUR DISTRICT - 572 123.
6. SMT. H.B. SHIVAMMA
W/o LATE H.R. SHIVANNA,
AGED ABOUT 52 YEARS,
RESIDING AT NO. 689/690, HALE PET,
HULIYURDURGA, KUNIGAL TALUK,
TUMKUR DISTRICT - 572 123.
7. SRI. H.S. KRISHNEGOWDA
S/o LATE SIDDALINGEGOWDA,
AGED ABOUT 50 YEARS,
RESIDING AT NO.693, HALE PET,
HULIYURDURGA, KUNIGAL TALUK,
TUMKUR DISTRICT - 572 123.
8. SMT. MANJULA M.K.
W/o SRI. VENKATESH,
AGED ABOUT 43 YEARS,
RESIDING AT HOSAPET, T.M. ROAD,
HULIYURDURGA, KUNIGAL TALUK,
TUMKUR DISTRICT - 572 123.
9. SRI. LIKAYATH PASHA
S/o SRI. ABDUL RAFOO
AGED ABOUT 45 YEARS,
RESIDING AT HOSAPET, T.M. ROAD,
HULIYURDURGA, KUNIGAL TALUK,
TUMKUR DISTRICT - 572 123.
10. SRI. VARADARAJU H.V.
S/o LATE K.P. VENKATACHALA SHETTY,
AGED ABOUT 52 YEARS,
RESIDING AT NO. 147, T.M. ROAD,
HOSAPET, HULIYURDURGA,
KUNIGAL TALUK,
TUMKUR DISTRICT - 572 123.
11. SMT. NINGAMMA DEAD BY LRS.,
SRI. RAMESH H.S.
S/o LATE H.R. SHIVANNA,
AGED ABOUT 37 YEARS,
RESIDING AT NO. 429, OLDPET,
HULIYURDURGA, KUNIGAL TALUK,
TUMKUR DISTRICT - 572 123.
3 CCC NO.394/2017
12. SRI. AFSAR
S/o LATE SHAIK NOORUDDIN,
AGED BOUT 50 YEARS,
RESIDING AT H.L.NO.312,
HOSPET, T.M. ROAD,
HULIYURDURGA, KUNIGAL TALUK,
TUMKUR DISTRICT - 572 123.
...COMPLAINANTS
[BY SRI.PRASHANTH CHANDRA S.N., ADVOCATE]
AND:
1. SRI. RAMESH, MAJOR
TAHASILDAR,
KUNIGAL TALUK,
TUMKUR DISTRICT - 572 106.
2. SRI. VINAYAKA, MAJOR
THE PANCHAYAT DEVELOPMENT OFFICER,
HULIYURDURGA, KUNIGAL TALUK,
TUMKUR DISTRICT - 572 106.
...ACCUSED
[BY SRI. J.M. ANIL KUMAR, ADVOCATE FOR A1
SRI. N.P. AMRUTHESH, ADVOCATE FOR A2]
------
THIS CCC IS FILED UNDER ARTICLE 215 OF THE CONSTITUTION
OF INDIA R/W SECTIONS 11 AND 12 OF COMTEMPT OF COURTS ACT
1971 PRAYING TO TAKE COGNIZANCE OF THE CONTEMPT OF COURT
AND ORDER/DIRECTIONS ISSUED BY THIS HON'BLE COURT DATED
17.12.2014 PASSED IN W.P.NOS.47667-47691/2012 C/W W.P.NOS.
47303-47319/2012, VIDE ANNEXURE "B" AND DEAL WITH THE
ACCUSED IN ACCORDANCE WITH LAW IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS CCC HAVING BEEN HEARD AND RESERVED, COMING ON
FOR PRONOUNCEMENT, THIS DAY B VEERAPPA J., MADE THE
FOLLOWING:-
4 CCC NO.394/2017
ORDER
This contempt petition is filed by the complainants under the provisions of Sections 11 and 12 of the Contempt of Court Act, 1971 read with Article 215 of the Constitution of India to take action against accused 1 and 2 for willful disobedience of order dated 17.12.2014 passed in W.P.Nos.47667-47691/2012 and connected matters, wherein the learned Single Judge, relying upon the earlier directions dated 22.6.2012 made in W.P.Nos.45015-45019/2011 and connected matters and taking into consideration of prayers in the writ petitions, allowed the writ petitions in part directing the respondents to comply with the directions issued in the earlier writ petitions.
2. The directions issued by this Court in W.P.No.45015- 45019/2011 and connected matters disposed of on 22.6.2012, are as follows :
"i) The respondents shall not dispossess the petitioners in these writ petitions without the due process of law having regard to the provisions of the Karnataka Municipalities act, Town and Country planning Act as well National Highways Act, 1956.
ii) In respect of the encroachers, the respondents shall issue notice to them and call upon them to produce the necessary documents and on such documents being 5 CCC NO.394/2017 produced, it shall examine whether indeed they are encroachers or not.
iii) If the respondents comes to a conclusion that they are required to proceed under the provisions of the Act and take possession on the ground that they are encroachers, the said order shall not be given effect to for a period of two weeks."
3. It is the specific case of the complainants that in spite of the orders passed by this Court on two occasions stated supra, on 6.3.2017, the accused along with Police, Tahsildar and manual labours with JCB and Bulldozers appeared at the road in question, with a force of 300 people and started demolishing the properties in Huliyurudurga Main Road, including the properties of the complainants. Hence, the complainants requested the authorities and sought clarification as to the nature of enquiry or proceedings held by them and outcome of the same if any, in compliance with the directions of this Court more particularly, based on the submission made by the Learned Additional Government Advocate before this Court in CCC Nos. 1228 & 1397-1406/2016 on 02.01.2017. The officials were not having any answer and in fact, started evicting the complainants, while the men of the Accused simultaneously started demolition of the properties without giving any opportunity of minimum time to 6 CCC NO.394/2017 the complainants to shift their valuable belongings and household and the entire demolition proceedings have been photographed and videographed by the complainants.
4. The petitioners in W.P.No.45015-45019/2011 and connected matters filed CCC (civil) Nos.1228 & 1397-1406 of 2016 before this court. The present accused 1 and 2 are accused Nos.5 and 6 in the said contempt petition. In the said contempt petition, the learned Government advocate had not disputed the order passed by this Court on 22.6.2012 in W.P.No.45015-45019/2011 and connected matters and the order dated 17.12.2014 in W.P.Nos.47667-47691/2012 and connected matters and submits that in pursuance of the orders passed by this Court, the accused shall take fresh steps. The said submission was placed on record and accordingly, the proceedings were dropped.
5. It is the further case of the complainants that one of the residents during the demolition, issued a letter dated 06.03.2017 to the Tahsildar, with a copy of the order of Contempt Petition in CCC No.1228 & 1397-1406/2016 calling upon the Accused- Tahsildar to stop the work of demolition immediately and to give clarification for such illegal action. However, the Tahsildar had neither given any answer nor offered any explanation as his 7 CCC NO.394/2017 voice has been cut to sizes by his political masters. It is further contended that the act of demolition by the accused has been widely reported among the local daily newspaper 'Prajavani' on 07.03.2017. Hence, the complainants having lost everything, as a last attempt, have approached this Court in the present contempt petition for the reliefs as sought for.
6. In response to the notice issued in the present contempt petition, one Nagaraj, Tahsildar, Kunigal Taluk, Tumkur District filed counter affidavit on behalf of the respondents on 20.7.2017, wherein he has not disputed the orders passed by this Court on 22.6.2017 and 17.12.2014 in writ petitions stated supra and further submitted that the State Highway No.33 passes through Huliyurdurga Grama Panchayath and its width measures 60 feet. On either side of the road, the Villagers have encroached the road to the extent of 2 feet to 20 feet and because of which, the road width was reduced and there are instances of traffic jam, road accidents used to occur and the public were put to great inconvenience and difficulties. In fact, under State Highway Development Project (for short SHDP), a sum of Rs.3.96 Crores was sanctioned during April 2016 and it is a time bound project and if the said amount is not utilized within the stipulated time, the said grant would lapse. It is further contended that 174 8 CCC NO.394/2017 houses on either side of the road have been ear-marked to an extent of their encroachment for widening purpose and about 161 persons, who have constructed houses by encroaching portion of the road, have not objected for removal of the said encroachment for the purpose of widening the road. In the present petition, only 12 complainants have objected for removal of the encroached portions as per Annexures R1 to R10 and further stated that they have not demolished the entire portion as alleged by complainant No.7. It is further stated that with a bonafide intention, he has removed the encroachment with a view to facilitate by widening the road, which would help the public at large particularly to avoid traffic congestion and vehicular accidents in the said road. In fact, in view of the difficulties faced by the authorities, the public themselves have come forward to remove the encroachments made by them on their own and they have removed their encroachment. The present complainants are objecting removal of encroachment on the ground that the said land belong to them. The survey officials, Executive Engineer, Tahsildar and other officials have surveyed the entire width of road and after identifying the encroached portion, the encroachment have been removed. If their land is, in fact, utilized for widening of the road, they are 9 CCC NO.394/2017 entitled for compensation and after determination of the exact extent, if any, is utilized for the road widening, they shall take necessary steps to pay compensation.
7. Subsequently, accused No.5 (now accused No.1)- Ramesha has also filed affidavit on 29.7.2017 and has not disputed the orders passed by the learned Single Judge dated 17.12.2014 and 22.6.2012. He has reiterated the averments made in paragraphs 5, 6 and 7, as has been stated by the previous Tahsildar- Nagaraja in the affidavit, stated supra.
8. The Additional Government Advocate, vide memo dated 8.8.2017, as per the directions of this Court dated 31.7.2017, produced the copy of suspension order dated 7.8.2017 of accused No.5-Ramesha. The order of this Court dated on 31.7.2017 reads thus :
"Mr. A.S. Ponnanna, learned Additional Advocate General, appears for the accused and he states that the Deputy commissioner is present and the Government shall consider the seriousness of the matter, there was an undertaking earlier and the Tahsildar though was aware about the order of the Court has ordered for demolition.
He submitted that some time may be granted so as to enable the Deputy Commissioner and the competent authority to consider as to what steps are required to be 10 CCC NO.394/2017 taken for undoing or compensating the damage caused by committing breach of the order."
Put up on 08.08.2017."
9. Subsequently, the Deputy Commissioner, K P Mohan Raj, filed an affidavit before this Court on 5.9.2017 along with the enquiry report showing the lands demolished and the extent mentioned therein.
10. We have heard the learned counsel for the parties.
11. Sri Prashanth Chandra, learned counsel for the complainants, reiterating the averments made in the contempt petition, would contend that in spite of the orders passed by this Court as per Ex.P1-W.P.Nos.47667-691/2012 and connected matters disposed of on 17.12.2014, at paragraph 11 and as per Ex.P2- W.P.Nos.45015-45019/2011 and connected matters, dated 22.6.2012 at paragraph 6(i) to (iii) stated supra, has been violated by A1 and A2 (A5 and A6) and they are liable to be punished for willful disobedience of the orders passed by this court, stated supra. He would further contend that in CCC Nos.1228 and 1397-1406 of 2016 dated 2.1.2017, an undertaking was given by the learned Additional Government Advocate that accused will take steps in terms of the order 11 CCC NO.394/2017 passed in W.P.Nos.45015-45019/2011 and connected matters disposed of on 22.6.2017 and in spite of such an undertaking, the accused persons proceeded to demolish the buildings of the complainant on 6.3.2017 in utter violation of the orders dated 22.6.2012, 17.12.2014 and 2.1.2017 in the writ petitions as well as the contempt petitions, stated supra.
12. He would further contend that A5, who is now A1-Ramesha filed an affidavit on 29.7.2017 and in paragraph No.7, he admitted the demolition. He is examined as DW1 wherein he has admitted that, he was the Tahsildar of Kunigal as on 2.1.2017 and he was one of the respondents in CCC No.1228 and 1397-1406 of 2016 and he had given instructions to his lawyer in the said case. He has seen the photographs shown to him vide Exhibits P7 to P16 which pertain to the demolition of the properties on 06.03.2017 and that he is found in the photograph at Exhibit-P8 and he can also identify accused No.2 in Exhibit-P8 and his signature on Exhibit- P6.
13. The learned counsel for the complainants would contend that when the aforesaid accused (DW1) was accosted with letter written by Smt.S.P.Latha to the Tahsildar, Kunigal, he has acknowledged the same and the same came to be marked as 12 CCC NO.394/2017 Exhibit-P17. The demolition took place on 06.03.2017 between 11.00 a.m. to 4.30 p.m. The learned counsel submits that DW1 admitted that he was aware of the report submitted by the Deputy commissioner, Tumkur to this Court in this petition and that he had participated and given his statement before him and the said report came to be marked as Exhibit-P18 and the copy of the statement made by DW1 is marked as Exhibit- P19.
14. The learned counsel further submits that DW1 admitted that that after the aforesaid report was submitted, he was placed under suspension from July 2017 to February, 2018 and enquiry is pending and since January 2019, he was the Tahsildar at K.G.F; he has admitted that he is not aware as to exactly how many properties were demolished on that day and that he is aware of the orders passed by this court in the earlier proceedings; he has admitted in the cross examination that he was the Tahsildar and Taluka Magistrate, Kunigal, as on 6.3.2017 and the property in question does not come under his jurisdiction; that in the examination-in-chief of DW1 he has stated that he was present at the place where the demolition took place in order to maintain law and order in the capacity of the Taluka Magistrate.
13 CCC NO.394/2017
15. Sri Prashanth Chandra, learned counsel for the complainants further pointed out that in the examination-in-chief of DW2- Vinayaka, who is now accused No.2, has stated that the property falls within the jurisdiction of the gramathana and as well as it is a revenue land; one building which is demolished falls within the jurisdiction of revenue authorities and the remaining properties falls within the jurisdiction of gramathana and that there is no communication by him to the Revenue authorities with regard to demolition of the properties; it is admitted that he has not taken any permission from the Tahsildar for demolishing the properties; he has further admitted that at the time of conducting the survey, Assistant Engineer-PWD, Taluka surveyor and PWD surveyor, were present; he has further admitted that the Tahsildar also performs the duty of Taluka Magistrate and that it is true that Taluka Magistrate and the police were present at the spot in order to prevent any untoward incident when the demolition took place and he has not sought for any permission from the Tahsildar to demolish the properties.
16. The learned counsel further submits that, in the cross examination, DW2 has admitted that all the records are in his possession and that Exs.P7 and P8, are the photographs pertaining to marking of the width of the road and Exs.P9.to 17 14 CCC NO.394/2017 would indicate the removal of encroachments over the properties on the road in question and DW2 is appearing in Ex.P.7 and in Ex-P8, DW2 is appearing along with Assistant Engineer-PWD, Village Accountant and police officials and in Ex.P9 also DW2 is appearing. DW2 further admits that under his jurisdiction, the properties over the road in question have been demolished on one previous occasion viz., on 26.11.2012 and about 10 buildings were demolished on 06.03.2017.
17. The learned counsel further submits that when DW2 was accosted with the letter dated 24.08.2017 said to have written by him to the Deputy Commissioner, he admits the same, which is marked as Exhibit-P20 and further when he was accosted with yet another letter dated 01.09.2017 written by him to the Deputy Commissioner, he admits to the same also, marked as Exhibit-P21; that he is aware of the court orders passed in the present petition and also in CCC Nos.1228 and 1397-1406 of 2016; admits that based on the letter of the Tahsildar vide Ex.D3, the officials and himself went near the properties in question on 06.03.2017.
18. The learned counsel for the complainants taking us through the examination-in-chief and cross examination of DWs 1 and 2, 15 CCC NO.394/2017 accused 1 and 2, submits that, the violation of the court orders are proved beyond doubt. The learned counsel for the complainants further contend that Exs.P7, 8, 9, 10, 11, 13, 14, 15 and 16 are photographs pertaining to demolition. He would further contend that Ex.D3 (document No.3) dated 2.3.2017 is the correspondence by the Tahsildar to the Police Sub Inspector to give protection for the demolition and thereby it is clear case of violation. Therefore, he sought to allow the contempt petition by initiating contempt proceedings against the accused.
19. Per contra, Sri J M Anil Kumar, learned counsel for A1- Ramesh, Tahsildar, would contend that the prayer in W.P.Nos.47667-691/2012 and connected matters dated 17.12.2014 is only to quash final notices issued by the PDO and the present contempt petition is filed on 10.3.2017. There is an inordinate delay in filing the contempt petition in view of the provisions of Section 20 of the Contempt of Courts Act, 1971 and thereby the contempt petition is liable to be dismissed on the ground of delay and laches. He would further contend that as per Annexure-B, i.e. the order passed by this Court dated 17.12.2014 in W.P.Nos.47667-691/2012 and connected matters, wherein paragraphs 8,9 and 11 clearly depicts as under : 16 CCC NO.394/2017
"8. Although learned Counsel for the petitioners submits that the portions of the immovable properties belonging to the petitioners have been demolished, nevertheless, one of the prayer in the petitions is to direct the 7 th respondent not to resort to demolition of the demolition of the immovable properties, hence, it will be too far fetched for this Court to sit in Judgment and record a finding as to whether or not the properties have been demolished.
9. There can also be no doubt that the respondent/ State and its Department did not permit either acquisition of lands for widening the road or issued directions to demolish the structures, for the said purpose, as indicated in the communication dated19.12.2011 of the Assistant Executive Engineer, PWD, Annexure-M to WP Nos. 47303- 319/2012 as also the endorsement dated 12.01.2012 Annexure-N of the 7th respondent, Village Panchayat, indicated that there are no notifications under the Land Acquisition Act,1894, for acquisition of the said properties.
11. Notices dated 20.11.2012 Annexure-J in WP Nos. 47667-47691/2012 and Annexure-J in WP Nos. 47303- 47319/2012 are quashed. A writ of mandamus shall ensue to the respondents to comply with the directions issued by the learned Single Judge noticed supra and if the properties belonging to the petitioners have been demolished, petitioners are entitled to initiate such legal proceeding as are permissible in law by instituting suits before the competent Civil Court.
20. He would further contend that accused No.1-Tahsildar has not violated any of the orders passed by this Court and he has 17 CCC NO.394/2017 not granted permission to A2-PDO to demolish as admitted by him in the cross examination of PDO as DW2 and whereby accused No.1/respondent No.1 has not violated any of the orders and thereby sought to drop the proceedings. In support of his contention, he relied upon the dictum of the Co-ordinate Bench of this Court in the case of Sri K Manjunatha Rao and others vs. D.K Rangaswamy and others in CCC Nos.585-588/2012 dated 19.12.2014 wherein it is held as under :
"The scope of civil contempt, the practice and procedure to be followed in contempt proceedings, the nature of pleadings required, the standard of proof expected, the rights of the alleged contemnor and the principles governing the area in the light of Article 215 of the constitution of India."
and thereby he would contend that the act is done by accused No.1 in his official capacity of administration for the benefit of general public and thereby no contempt is made out. Therefore, he sought to drop the contempt proceedings.
21. Sri Amruthesh, learned counsel for accused No.2/respondent No.2 while reiterating the averments made in the statement of objections would contend that though the daily news paper might have published the alleged demolition on 07.03.2017 but 18 CCC NO.394/2017 the fact is on 02.02.2017, the AEE of PWD Kunigal had requested the Tahsildar/Accused No.1 to furnish the survey sketch of Government space encroached by the dwellers by both the side of the road and the copy of the said letter is also sent to respondent No.2 and respondent No.2 after receipt of said copy, also requested the EO, Taluk Panchayath to furnish the survey sketch and the copy of the same is also sent to Taluk Magistrate/ Accused No.1. He further submits that respondent No.2 is a law abiding citizen and he has never violated the orders of this court.
22. He would further contend that insofar as the statements made by the learned Additional Advocate General on 31.7.2017 and 9.4.2018 are concerned, the claimants are entitled to only compensation and the PDO has demolished the houses, only in the interest of public and thereby no contempt is made out for violation of the orders passed by this Court and sought to drop the contempt proceedings initiated against him.
23. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the only point for consideration in this contempt petition is :
"Whether the complainants have made out any case to initiate contempt proceedings as contemplated under the provisions of Section 2(b) punishable under the provisions 19 CCC NO.394/2017 of 11, 12 of the Contempt of Courts Act, 1971 for willful disobedience of the orders dated 22.06.2012, 17.12.2014 and 2.1.2017, by the accused, in the writ petitions as well as contempt proceedings and thereby the accused have demolished residential commercial buildings of the complainants which amounts to contempt of Court Act, 1971 and punishable under the peculiar facts and circumstances of the present case?"
24. This Court after hearing both the parties, framed the charge in respect of accused 1 and 2 dated 17.7.2019 as under :
"You, respondent/accused No.1 (previously accused No.5) i.e., Sri. Ramesh, Tahsildar, Kunigal Taluk, Tumukur District-572 106 as follows:
The complainants filed W.P.Nos.45015 to 45019 of 2011 and 45065 to45069, 45070 to 45074, 45075 to45079 and 45080 to 45082 of 2011. This court by order dated 22.06.2012 disposed of the petitions and directed the respondents therein not to dispossess the complainants without due process of law. Further, the complainants have approached this Court by filing W.P. Nos.47667 to 47619 of 2012 c/w W.P.Nos.7303 to 47319 of 2012 which were disposed of on 17.12.2014 with a direction to the respondents to comply with the directions issued in W.P.Nos. 45015 to 45019 of 2011 and 45065 to 450269, 45070 to 45074, 45075 to 45079 and 45080 to 45082 of 2011.
That you accused in spite of the orders dated 22.06.2012 and 17.12.2014 attempted to demolish the residential and commercial buildings of the complainants.
Hence, the complainants filed C.C.C. Nos. 1228 and 1397 20 CCC NO.394/2017 to 1406 of 2016. In the said proceedings, learned counsel appearing on your behalf made a submission that no action will be taken without due process of law and hence the said contempt petitions were dropped on 02.01.2017. In spite of the above orders passed in the writ petitions and also the undertaking given before this Court in contempt petitions, you accused have demolished the residential and commercial buildings of the complainants in violation of the orders of this Court dated 22.06.2012, 17.12.2014 and 02.01.2017 which amount to contempt within the meaning of Section 2(b) of the Contempt of Courts Act, 1971, punishable under Sections 11 and 12 of the Act, within the cognizance of this Court.
And we hereby direct that you be tried by this Court on the said charge.
Dated this the 17th day of July 2019."
Charge having been read over and understood by accused No.1, pleaded not guilty and claim to be tried.
25. Further, in respect of A2-Vinayaka charge is as under :
"You, respondent/accused No.2 (previous Accused No.6) i.e., Sri. Vinayaka, Major, The Panchayat Development Officer, Huliyurdurga, Kunigal taluk, Tumkur District-572 106 as follows:
The complainants filed W.P.Nos.45015 to 45019 of 2011 and 45065 to 45069, 45070 to 45074, 45075 to 45079 and 45080 to 45082 of 2011. This Court by order dated 22.06.2012 disposed of the petitions and directed the respondents therein not to dispossess the complainants without due process of law. Further, the complainants have approached this Court by filing W.P. Nos. 47667 to 21 CCC NO.394/2017 47691 of 2012 c/w W.P. Nos. 47303 to 47319 of 2012 which were disposed of on 17.12.2014 with a direction to the respondents to comply with the directions issued in W.P Nos.45015 to 45019 of 2011 and 45065 to 45069, 45070 to 45074, 45075 to 75079 and 45080 to 45082 of 2011.
That you accused in spite of the orders dated 22.06.2012 and 17.12.2014 attempted to demolish the residential and commercial buildings of the complainants.
Hence, the complainants filed C.C.C Nos. 1228 and 1397 to 1406 of 2016. In the said proceedings, learned counsel appearing on your behalf made a submission that no action will be taken without due process of law and hence the said contempt petitions were dropped on 02.01.2017.
In spite of the above orders passed in the writ petitions and also the undertaking given before this Court in contempt petitions, you accused have demolished the residential and commercial buildings of the complainants in violation of the orders of this Court dated 22.06.2012, 17.12.2014 and 02.01.2017 which amount to contempt within the meaning of Section 2(b) of the Contempt of Courts Act, 1971, punishable under Sections 11 and12 of the Act within the cognizance of this Court.
And we hereby direct that you be tried by this Court on the said charge.
Dated this the 17th day of July 2019.
Charge having been read over and understood by Accused No.2, pleaded not guilty and claim to be tried.
26. In order to prove the case of the complainants, complainant No.11 was examined as CW1 who, reiterating the averments 22 CCC NO.394/2017 made in the petition as well as the contempt petition, has deposed that in spite of the aforesaid orders dated 22.6.2012 and 17.12.2014, accused have demolished the properties of some of the complainants and after the said demolition, the complainants issued notice dated 04.08.2016 to the first accused as per Exhibit-P3 informing him that, act done by him, is in violation of the Court order. Thereafter, commencement of widening of the road work was inaugurated on 26.10.2016 as per Exhibit-P4 and after perusal of the invitation, CW1 and others filed CCC Nos.1228 and 1397-1406 of 2016 against the accused and others and further stated that in the said petition, the Government Advocate appearing for the accused submitted that they would follow and comply the order passed by the learned Single Judge. Based on the submission, the contempt proceedings were dropped on 02.01.2017, as per Exhibit-P5. Thereafter, on 06.03.2017, both accused 1 and 2 demolished the complainants property. On the same day, he submitted a letter as per Exhibit-P6 to both the accused informing them that they have illegally demolished his structure. Even then, they did not stop the demolition and continued with the demolition process and thereafter, CW1 and other complainants filed the instant contempt petition against the accused on the ground that 23 CCC NO.394/2017 they have violated the order dated 17.12.2014 passed by the learned single Judge of this Court in Writ Petition Nos. 47303- 47319 of 2012 and connected matters.
27. In the cross examination, CW1 has stated that demolition of the property of the complainants took place on 06.03.2017 but his property, has not been demolished. He was present when the demolition took place and that he can identify the properties that have been demolished. The demolition of properties that took place belongs to 10 complainants. He denied that he was not present at the spot where the demolition took place and he also stated that only 10 properties have been demolished and there are 12 complainants, in this case. The suggestion that, the earlier contempt petition filed by the complainants was on false ground, has been denied by CW1, he is aware of the earlier orders passed by this Court in the Writ Petitions and the Contempt Petition. He further deposed that pursuant to the order dated 22.06.2012 in Writ Petition Nos. 45015-45019 of 2011, accused No.2 had issued a notice to the complainants and said notices were quashed by the order dated 17.12.2014 in Writ Petition Nos. 47303-47319 of 2012. Nothing has been elicited in the cross examination, to believe that, the contempt 24 CCC NO.394/2017 proceedings has been initiated on false ground by the complainants and as such, they never violated the orders passed by this Court.
28. CW2-Basavarajiah, one of the complainant was also examined in this case and he has deposed that he is aware of the dispute pending in the case and that on 06.03.2017, at about 9.00 to 9.30 a.m, both the accused and other officials of the Government came to the spot. They had also brought police, JCB, etc., Their purpose was to break the existing structure in order to widen the road. Photographs were taken by the complainants and the same have been produced as Exhibits-P7 to P6. He has further deposed that he can identify both the accused in some of the photographs. Both the accused have got the properties demolished and he has seen the demolition taking place.
CW2 in his cross examination has stated that he is a resident of Halepet of Huliyurdurga and the distance between his house and the road in question is about half a kilometer. In the present case, his property is not included. None of the complainants are related to him. He has further stated that some of the complainants are known to him and his property 25 CCC NO.394/2017 was demolished on the same day which is situated at Halepet. He has denied the suggestion that he was not present when the photographs were taken and as the property of CW2 has been demolished, he is falsely deposing in this case to support the complainants.
29. In order to disprove the case of the complainants, accused 1 and 2 have been examined on oath as DWs1 and 2.
A1-Sri Ramesh K, examined as DW1, has admitted that he was working as Tahsildar at Kunigal from 8.9.2015 to 1.4.2017 and that he is aware of the facts and circumstances involved in the present petition and he has not passed any orders to demolish any structures of the complainants or others. He further stated that the area where buildings are situated comes within the jurisdiction of the Grama Panchayath, Huliyurdurga and demolition took place by the PWD and the panchayath and as such, he has not violated any court order. He also admitted that, he was present at the place, where demolition took place, in order to maintain law and order in the capacity of the Taluka Executive Magistrate. He further admitted that he was the Tahsildar of Kunigal as on 2.1.2017 and he was one of the respondent in CCC Nos.1228 and 1397-1406 of 2016 and he had 26 CCC NO.394/2017 given instructions to his lawyer in the said cases. He has not disputed the photographs, Exhibits P7 to P16 pertaining to demolition of the properties on 06.03.2017 and he also admitted that he is found in the photograph, Exhibit-P8, and that he can identify accused No.2 in Exhibit-P8 and his signature on Exhibit- P6. Further, the witness was accosted with letter written by Smt.S.P.Latha to the Tahsildar, Kunigal, which has been acknowledged by him and marked as Exhibit-P17. Further, he has admitted that the demolition took place on 06.03.2017 between 11.00 a.m. to 4.30 p.m. and he is aware of the report- Ex.P.18 submitted by the Deputy Commissioner, Tumkur and as he had participated in the said enquiry, given statement before him. Copy of the statement made by him is marked as Exhibit- P19 and DW1 admitted that, after submission of the report, he was placed under suspension from July 2017 to February, 2018 and the enquiry is pending. He has further admitted that he is aware of the orders passed by this court in the earlier proceedings and denied the suggestion that he had deliberately violated the court orders. In the cross examination, he has further admitted that he was the Tahsildar and Taluka Executive Magistrate, Kunigal, as on 6.3.2017 and according to DW1, the property in question does not come under his jurisdiction. 27 CCC NO.394/2017
30. Accused No.2-Sri Vinayaka, deposed as DW2, has also admitted passing of the orders by this Court on two occasions in regard to the subject matter. He has further admitted that he has not taken any permission from the Tahsildar for demolishing the properties and he admits that the Tahsildar also performs the duty of Taluka Executive Magistrate and further admits that copy of Exhibit D2-letter dated 20.2.2017, addressed to Executive Officer, Taluka Panchayath, has been sent by him to accused No.1 in the capacity of Taluka Magistrate. He further admits that the Taluka Executive Magistrate and the police were present at the spot in order to prevent any untoward incident, when the demolition took place and he has not sought for any permission from the Tahsildar for demolition of the properties and further admits that, the Tahsildar has not issued any directions to him to demolish the properties and the Taluka Executive Magistrate is no way concerned with the demolition of the properties, but he has only provided security at the time of demolition. In the cross examination, he has admitted that all the records are in his possession. He further admitted Exs.P7 and P8, which are the photographs pertain to marking of the width of the road and Exs.P9.to 17 would indicate the removal of encroachments over 28 CCC NO.394/2017 the properties on the road in question. He admitted that in Ex.P.7 he is present; in Ex-P8, he is present along with Assistant Engineer-PWD, village Accountant and police officials and in Ex. P9 also he is present. He further admits that under his jurisdiction, the properties situated on the road in question have been demolished on one previous occasion viz., on 26.11.2012 and about 10 buildings were demolished on 06.03.2017. He further admitted that he is aware of the court orders passed in the present petition and also in CCC Nos. 1228 and 1397-1406 of 2016. He further admits that based on the letter of the Tahsildar vide Ex.D3, the officials and himself went near the properties in question on 06.03.2017.
31. On careful reading of the entire material on record, it is an undisputed fact that this Court in W.P.Nos.45015-19/2011 and connected matters disposed of on 22.6.2012 had issued the following directions :
"i) The respondents shall not dispossess the petitioners in these writ petitions without the due process of law having regard to the provisions of the Karnataka Municipalities act,` Town and Country planning Act as well National Highways Act, 1956.
ii) In respect of the encroachers, the respondents shall issue notice to them and call upon them to produce the 29 CCC NO.394/2017 necessary documents and on such documents being produced, it shall examine whether indeed they are encroachers or not.
iii) If the respondents comes to a conclusion that they are required to proceed under the provisions of the Act and take possession on the ground that they are encroachers, the said order shall not be given effect to for a period of two weeks."
32. It is also not in dispute that present complainants filed W.P.Nos.47667-47691/2012 and connected matters and the learned Single Judge of this Court on 17.12.2014 reiterated the earlier order passed by this Court, allowed the writ petitions in part and has observed as under :
"11. Notices dated 20.11.2012 Annexure-J in WP Nos. 47667-47691/2012 and Annexure-J in WP Nos. 47303-47319/2012 are quashed. A writ of mandamus shall ensue to the respondents to comply with the directions issued by the learned Single Judge noticed supra and if the properties belonging to the petitioners have been demolished, petitioners are entitled to initiate such legal proceeding as are permissible in law by instituting suits before the competent Civil Court."
33. It is also not in dispute that some of the complainants in the aforesaid writ petitions, filed contempt petitions in CCC (Civil) Nos.1228 & 1397-1406 of 2016 and this Court on the submission 30 CCC NO.394/2017 made by the learned Additional Government Advocate has dropped the contempt proceedings vide order dated 2.1.2017. Paragraphs 4 and 5 are extracted : .
"4. Learned Additional Government Advocate further submits that the Accused will take fresh steps in terms of the order of this Court in W.P.Nos.45015- 45019/2011 and other connected matters disposed of on 22.06.2012. The said submission is placed on record.
5. We are of the view that the accused have not violated the order of this Court. Hence, the proceedings are dropped. No costs."
34. Further, it is also not in dispute that in W.P.Nos.45015- 19/2011 and connected matters disposed of on 22.6.2012 and W.P.Nos.47667-47691/2012 and connected matters disposed of on 17.12.2014 and also in CCC (Civil) Nos.1228 & 1397 - 1406 of 2016 disposed on 2.1.2017, stated supra, accused Nos.1 and 2 are parties to the lis throughout and they have to obey the orders of this Court. But in spite of the directions issued by this Court, without following the proper procedure, A1 and A2 have taken law into their own hands, as admitted by them (accused) in their examination-in-chief and the cross examination, have demolished the buildings of the complainants in utter 31 CCC NO.394/2017 disobedience of the order of this Court and that their presence at the time of demolition is also not disputed.
35. It is also not in dispute that as per Ex.D3, letter addressed by the Tahsildar, Kunigal Taluk to the Deputy Superintendent of Police, Kunigal Sub Division on 2.3.2017, to give protection in order to maintain law and order, though he was a party throughout the proceedings. It is also not in dispute that as per Ex.D2, the Panchayath Development Officer has also requested the Executive Officer of the Taluk Panchayath Office, Kunigal, with regard to the widening of the road. Though they are aware of the orders passed by this Court as Exs. P1 and P2, proceeded to demolish the buildings on 6.3.2017, which is in utter violation of the orders passed by this Court in the aforesaid writ petitions and contempt petition. The order sheet maintained by this Court reveals that on 31.7.2017, the learned Additional Advocate General appearing for the accused has stated that the Deputy Commissioner is present in the Court and the Government shall consider the seriousness of the matter and there was an undertaking earlier and the Tahsildar though was aware about the order of the Court has ordered for demolition. He has further submitted that some time may be granted so as to enable the Deputy Commissioner and the competent authority to consider as 32 CCC NO.394/2017 to what steps are required to be taken for undoing or compensating the damage caused by committing breach of the order. The said order has reached finality. It is also not in dispute that this Court on 9.4.2018 has passed a detailed order, cited supra.
36. Admittedly, the accused persons have neither taken any steps, identified the extent of illegal demolition in violation of the orders nor paid compensation in respect of the orders passed by this Court, even after a lapse of more than a decade.
37. A careful perusal of the entire material on record, it clearly depicts that the accused persons have proceeded to demolish the buildings in utter violation of the orders passed by this Court. Though the contention was raised by the learned counsel for accused No.1 that there is delay in filing the contempt petition and therefore, it is not maintainable. The said contention cannot be accepted as the orders passed by this Court on 22.6.2012, 17.12.2014 and 2.1.2017 are the result of recurring cause-of- action and thereby the present Contempt Petition filed on 10.3.2017 is within one year time stipulated under Section 20 of the Contempt of Courts Act, 1971.
33 CCC NO.394/2017
38. It is to be noted further that, it is very strange that at one breath, the learned Additional Advocate General has admitted that accused have committed breach of the orders passed by this Court and also submitted that compensation have to be paid to the complainants but now, merely because the accused persons have engaged private counsels, in another breath, contention is taken to safeguard the accused, which clearly indicates that accused persons have deliberately disobeyed the orders passed by this Court, and have proceeded to demolish the residential/commercial buildings of the complainants, even the accused persons were well aware of the aforesaid orders as they were parties to the proceedings throughout. Thereby, the act of the accused persons amounts to contempt within the meaning of Section 2(b) of the Contempt of Court proceedings and are liable to be punished under the provisions of Section 12 of the Contempt of Court Act, 1971.
39. The complainants have succeeded in the earlier proceedings and this Court issued directions in respect of the subject matter, both in the writ side as well as in the contempt proceedings, and in spite of the continuous proceedings, accused persons have proceeded to violate the orders and taken the law into their hands thereby deprived the persons who approached this 34 CCC NO.394/2017 court with great expectations. Like any other organ of the State, the judiciary is also manned by human beings, but the function of the judiciary is distinctly different from other organs of the State, in the sense, its function is divine. Today, the judiciary is the repository of public faith. It is the trustee of the people. It is the last hope of the people. After every knock at all the doors fail, people approach the judiciary as the last resort. It is the only temple worshipped by every citizen of this nation, regardless of religion, caste, sex or place of birth.
40. Further, it is well settled that the Authorities under constitutional duty coupled with power and every public servant is a trustee of the society and in all facets of public administration, every public servant has to exhibit honesty, integrity, sincerity and faithfulness in implementation of the political, social, economic and constitutional policies to integrate the nation, to achieve excellence and efficiency in the public administration. A public servant entrusted with duty and power to implement constitutional policy under Articles 14, 21 and 300A of the Constitution of India.
41. Admittedly, A1 and A2, being the public servants, and parties throughout the proceedings in the earlier writ petitions and 35 CCC NO.394/2017 contempt proceedings, have a bounden duty to obey the orders passed by this Court. The accused, fully aware of the orders passed by this Court earlier, being parties in writ petitions and contempt proceedings, stated supra and said proceedings having reached finality, their act is in utter violation of the orders passed by this Court and it amounts to interference of public administration and mockery of justice and thus, it is high time for this Court to open its eyes to deal with the such contemnors, who violate the orders of this Court with iron hands.
42. For the reasons stated above, the point raised in this contempt petition is answered in the affirmative holding that the complainants have made out a case that the accused persons have willfully disobeyed the orders passed by this Court which amounts to Civil Contempt under the provisions of Section 2(b) of the Contempt of Court Act, 1971 and are liable to be punished under the provisions of Section 12 of the Contempt of Courts Act, 1971.
43. In view of the above, we pass the following order :
ORDER
i) Contempt petition is hereby allowed;36 CCC NO.394/2017
ii) Accused 1 and 2 are liable to be punished under the provisions of Section 12(1) of the Contempt of Courts Act, 1971 and are sentenced to undergo simple imprisonment for a period of two months with a fine of Rs.2,000/- each (Rupees Two Thousand only), in default, to undergo simple imprisonment for a further period of one month.
iii) The Registrar (Judicial) of this Court is directed to prepare a warrant of commitment and detention in respect of accused-
contemnors in Form No.3 as contemplated under Rule 16(1) of the High Court of Karnataka (Contempt of Court Proceedings) Rules, 1981, forthwith.
Sd/-
JUDGE Sd/-
JUDGE rs