Karnataka High Court
Sri Sohan Lal vs The State Of Karnataka on 20 August, 2018
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20th DAY OF AUGUST 2018
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
WRIT PETITION NOS.62010 OF 2016
AND 62485 TO 62498 OF 2016 (GM-RES)
BETWEEN:
1. SRI. SOHAN LAL,
S/O MANGILAL,
AGED ABOUT 48 YEARS.
2. SRI. UTHAMCHAND,
S/O BHAWARILAL,
AGED ABOUT 68 YEARS.
3. SRI. J.BHAGATH,
S/O H.R.J.BAPNAH,
AGED ABOUT 67 YEARS.
4. SRI. RAMESHCHAND,
S/O J.PARASMULLA,
AGED ABOUT 50 YEARS.
5. SRI. M.INDARCHAND,
S/O J.MOHANLAL,
AGED ABOUT 47 YEARS.
6. SRI. GOUTHAMCHAND,
S/O J.CHAMPALAL,
AGED ABOUT 60 YEARS.
7. SRI. KAMALESH JAIN,
S/O LATE G.OMPRAKASH JAIN,
AGED ABOUT 31 YEARS.
8. SRI. ANAND,
S/O LATE PUKKI BAI @ LAKSHMI BAI,
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W/O LATE SRI.GISSULAL,
AGED ABOUT 48 YEARS.
9. SRI. M.THARACHAND JAIN,
S/O MANGALECHAND JAIN,
AGED ABOUT 63 YEARS.
10.SRI. D.VIJAYASINGH JAIN,
S/O P.DHOOLCHAND JAIN,
AGED ABOUT 72 YEARS.
11.SRI. RAJESHKUMAR JAIN,
S/O D.JAISINGH JAIN,
AGED ABOUT 44 YEARS.
12.SRI. SAJIED,
S/O H.NISAR AHAMED,
AGED ABOUT 35 YEARS.
13.SRI. P.SHANMUGHAM,
S/O SRI.PONNUSWAMY,
AGED ABOUT 50 YEARS.
14.SRI. S.MANOJKUMAR,
S/O B.SHANTHILAL,
AGED ABOUT 53 YEARS.
15.SRI. THARACHAND,
S/O LATE M.MANGALCHAND,
AGED ABOUT 61 YEARS.
THE PETITIONERS 1 TO 15 ARE
THE BUSINESSMEN AT B.M.ROAD,
(AVENUE ROAD), ROBERTSONPET,
KOLAR GOLD FIELDS,
KOLAR DISTRICT - 563101. ... PETITIONERS
(BY SRI. T.SHESHAGIRI RAO, ADV.)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS CHIEF SECRETARY,
VIKAS SOUDHA,
DR. AMBEDKAR VEEDHI,
BANGALORE - 560001.
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2. THE DEPUTY COMMISSIONER,
KOLAR DISTRICT,
KOLAR - 563 101.
3. THE EXECUTIVE ENGINEER,
PWD DEPARTMENT,
KOLAR - 563 101. ... RESPONDENTS
(BY SRI. M.A.SUBRAMANI, HCGP)
---
These Writ Petitions are filed under Articles 226 & 227
of the Constitution of India, praying to quash the impugned
order dated 23.11.2016 passed by the R-2 vide Annexure-A
and pass such necessary order allowing the appeal filed by
the petitioners before the Deputy Commissioner and etc.,
These Petitions coming on for Preliminary hearing in 'B'
group this day, the Court made the following:-
ORDER
Petitioners are seeking for a writ of certiorari to quash the order dated 23.11.2016 - Annexure-A passed by 2nd respondent whereunder appeal filed by the petitioners before 2nd respondent being aggrieved by notices issued under Section 23(1) of the Karnataka Highways Act, 1964, Annexures-V1 to V6 came to be dismissed with a direction to 3rd respondent to proceed with road widening work. Petitioners have also sought for quashing of impugned notices issued to them under 4 Section 23(1) of the Karnataka Highways Act, 1964, by 3rd respondent.
2. Petitioners claim to be the owners of their respective lands as described in Item Nos.1 to 15 of schedule to the writ petitions and are asserting their right, title and interest over the same. They also claim to be in possession of said properties from long number of years.
3. The grievance of the petitioner is that 3rd respondent had made an attempt to illegally dispossess the petitioners from their respective properties under the guise of road widening at the instance of local Member of Legislative Assembly and as such, apprehending dispossession and threat of demolition of their buildings situated in their properties, they had approached this Court in W.P.Nos.38318-38376/2011 and this Court, by order dated 18.10.2011 - Annexure- S had allowed said writ petitions observing thereunder that properties of land owners (petitioners) cannot be 5 taken and/or demolished without recourse to acquisition proceedings. The observation made by the Co-ordinate Bench reads as under:
"4. There cannot be any dispute that the properties of the land owners cannot be taken possession of and/or demolished without having recourse to acquisition proceedings. If at all the State Government intends to take possession of the properties owned by private persons, the State Government has to acquire the same in accordance with law. It is also open for the State Government to hold negotiations with the land owners for outright purchase of the properties."
4. It is contended that 3rd respondent having slept over the matter for nearly two years, have now issued impugned notices to petitioners calling upon them to produce title deeds relating of their properties and reply is said to be submitted by the petitioners as per Annexures-T1 and T2 and in this factual background, 6 impugned notices dated 17.04.2015 and 24.04.2015 - Annexures-V1 to V6 has been issued by 3rd respondent in exercise of power vested under Section 23(1) of the Karnataka Highways Act, 1964 stating thereunder that any land situated within 12 meters of the centre of the road would belong to the State Government and as such, petitioners are in unauthorized possession and deemed to be encroachers and as such, has called upon them to vacate and handover possession of schedule properties.
5. Contending that properties belonging to petitioners are not situated on State Highway-96 and not falling within the depicted State Highway-96, and respondents cannot take possession of their lands without conducting spot survey and recording a finding about alleged encroachment petitioners are seeking for quashing of impugned notices. It is further contended that under Section 23(2) of the Act, even if there is any encroachment, it is required to be removed after notice 7 and such encroachers cannot be summarily evicted and eviction has to take place by initiating proceedings under the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974 and without taking recourse to the same, no finding cannot be recorded about petitioners being in deemed unauthorized occupation of lands. It is further contended that 3rd respondent has no right to summarily evict petitioners and impugned order dated 23.11.2016 - Annexure-A passed by 2nd respondent is without examining the objections filed to the notices issued under Section 23(1) and as such, same is liable to be quashed by allowing writ petitions. Hence, learned counsel appearing for petitioners, by reiterating grounds urged in the writ petitions as noticed hereinabove, would pray for writ petitions being allowed.
6. Per contra, learned counsel appearing for respondents would support the action of respondents by contending that any construction put up within 12 8 meters from the centre point of a State Highway is deemed to be unauthorized construction and as such, petitioners do not have any vested right to seek for stopping road widening which is for the public good and as such, prays for dismissal of the writ petitions.
7. Having heard the learned counsel appearing for parties and having perused the records, it discloses that there is no dispute to the fact that in earlier proceedings initiated by respondents to take over possession of lands alleged to be belonging to petitioners had been challenged by them in W.P.Nos.38318-38376/2011 and this Court had directed respondents therein not to dispossess petitioners without due process of law. Pursuant to said order passed by this Court on 18.10.2011 Annexure-S in the aforesaid writ petitions, notice dated 15.03.2013 - Annexure-T1 came to be issued by Assistant Executive Engineer, Public Works Department, Bangarpet (not a party to this proceedings) which was duly replied by one of the 9 petitioners as on 30.03.2013 - Annexure-T2. However, respondent - authorities kept quite for a period of two years and did not pursue said notice. However, all of a sudden impugned notices dated 17.04.2015 and 24.04.2015 - Annexures-V1 to V6 came to be issued to petitioners on the ground they are in occupation of subject lands unauthorizedly or they are deemed to be encroachers. Hence, being aggrieved by said notices - Annexures-V1 to V6, petitioners approached 2nd respondent under Section 24 of the State Highways Act and 2nd respondent, by impugned order dated 23.11.2016 - Annexure-A, dismissed the appeal. A perusal of impugned order would disclose that petitioners and other similarly placed persons had asserted that they are in possession and enjoyment of respective properties by virtue of having acquired the same under valid title deeds and as such they asserted their possession and enjoyment of the same by virtue of title deeds and also relied upon the judgment of this Court rendered in W.P.Nos.38318-38376/2011. 10 However, without examining as to how title deeds of petitioners produced before the Appellate Authority is relevant or irrelevant or being contrary to assertions made by petitioners and solely on the basis of 3rd respondent report dated 21.06.2016 which undisputedly was also not furnished to petitioners, a finding came to be recorded that Karnataka State Highways Act, 1964 mandates that from the centre point of the highway of 12 meters on either side, the land would belong to the State and on account of the constructions having been put up by petitioners and similarly placed persons to an extent of 3.5 meters to 6.0 meters, they are deemed to be encroachers and/or are in unauthorized occupation. However, no finding has been recorded as to how title deeds relating to petitioners are to be brushed aside or as to how entries found in the registered document is to be rejected. In the absence of any such finding recorded in that regard, impugned orders cannot be sustained.
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8. That apart, Co-ordinate Bench having placed with similar situation and having come across similar situation had an occasion to consider identical plea in W.P.Nos.44815-44826/2016 and connected writ petitions disposed of on 02.12.2016 which related to widening of State Highways at Chamarajanagar and Kollegal Districts and after noticing similar contentions raised by the State and in order to balance the equities namely keeping in mind the interest of the land owners as well as public. Cause to be achieved viz., widening of the road, had passed an order with certain directions to the Deputy Commissioner therein. Having noticed that while it is important that formation or widening of road has to be attended to on priority, as it is a matter of public interest, it also cannot be forgotten that rights of the public cannot be jeoparadised in the said process. However, said writ petitions came to be disposed of with following directions:
i) "Petitioners shall file statement of objections along with necessary documents before the 12 Deputy Commissioner, Chamarajnagar, within two weeks from the date of receipt of a copy of this order;
ii) The Deputy Commissioner shall consider the objections and hear them by providing personal hearing to the petitioners and thereafter, pass a considered order;
iii) If any of the petitioners are found to be encroachers of public road or public property, they shall be given 30 days time to remove the encroached portion by specifying the same, on their own. If any of the encroachers fail to comply with the direction within 30 days, the Deputy Commissioner and other concerned authorities would be free to remove the encroachment in accordance with law.
iv) If the properties are found to be absolutely
belonging to petitioners and not an
encroachment, then the State and the
authorities shall proceed in accordance with law to acquire the land by specifying the extent of area required for widening the road and by paying compensation to the petitioners as per law."13
9. In the light of petitioners herein being similarly placed and State authorities asserting that possession of petitioners are deemed to be encroachers, an enquiry has to be held necessarily as otherwise rights of the petitioners over the properties in question to which they claim title if allowed to be taken away without due process of law, such action would be contrary to Article 300A of the Constitution of India.
10. In that view of the matter, similar directions deserves to be issued in the present writ petitions which would balance the equities.
Hence, the following order and direction:
11. Writ petitions are hereby disposed of and the following directions are issued:
i) Petitioners shall file statement of objections along with necessary documents before the 14 Deputy Commissioner, Kolar, within two weeks from the date of receipt of a copy of this order;
ii) The Deputy Commissioner shall consider the objections and hear them by providing personal hearing to the petitioners and thereafter, pass a considered order;
iii) If any of the petitioners are found to be encroachers of public road or public property, they shall be given 30 days time to remove the encroached portion by specifying the same, on their own. If any of the encroachers fail to comply with the direction within 30 days, the Deputy Commissioner and other concerned authorities would be free to remove the encroachment in accordance with law.
iv) If the properties are found to be absolutely
belonging to petitioners and not an
encroachment, then the State and the
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authorities shall proceed in accordance with law to acquire the land by specifying the extent of area required for widening the road and by paying compensation to the petitioners as per law.
Ordered accordingly.
No order as to costs.
SD/-
JUDGE RV