Karnataka High Court
Sri. S Gopala Sharma vs Bengaluru Metropolitan Transport ... on 1 December, 2021
Author: Alok Aradhe
Bench: Alok Aradhe
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF DECEMBER 2021
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
W.P. NO.18542 OF 2021 (KLGP)
BETWEEN:
SRI. S. GOPALA SHARMA
S/O SRI. SOMAN SHARMA
AGED ABOUT 37 YEARS
R/AT. NO.545/157, M.S. PALYA
3RD CROSS, AMS LAYOUT
ADITYANAGAR, YALAHANKA MAIN ROAD
CHIKKABETTAHALLI, VIDYARANYAPURA
BENGALURU-560097.
... PETITIONER
(BY MR. NANDISH PATIL, ADV.)
AND:
BENGALURU METROPOLITAN TRANSPORT CORPORATION
CENTRAL OFFICE AT K.H. ROAD
SHANTINAGAR, BENGALURU-560027
REP. BY CHIEF LAW OFFICER
SRI. T. VENKATESH.
... RESPONDENT
(BY MR. P.D. SURANA, ADV.,)
---
2
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 &
227 OF THE CONSITUTION OF INDIA, PRAYING TO
QUASHING THE IMPUGNED ORDER DATED 23.09.2021
PASSED ON I.A.NOS.1 AND 2 IN CASE LGC(G) NO.422/2021
PENDING ON THE FILE OF THE KARNATAKA LAND GRABBING
PROHIBITION SPECIAL COURT, BENGALURU.
THIS WRIT PETITION COMING ON FOR ADMISSION,
THIS DAY, ALOK ARADHE J., MADE THE FOLLOWING:
ORDER
In this writ petition, the petitioner has assailed the validity of the order dated 23.09.2021 passed by Karnataka Land Grabbing Prohibition Special Court (hereinafter referred to as 'the Court' for short) on an application under Section 9(5)(A) and Section 10 of the Karnataka Land Grabbing Prohibition Act, 2011 (hereinafter referred to as 'the Act' for short) read with Order 39 Rule 2A of the Code of Civil Procedure, 1908.
2. Facts giving rise to filing of this petition briefly stated are that the petitioner claims to be the owner and in possession of plot measuring 30 x 40 feet bearing No.157/545, 36-2, M.S.Palya, 3rd Cross, AMS Layout, Vidyanarayanapura, Yelahanka Main Road, Bangalore North Taluk, Bangalore. The respondent filed an application under 3 Section 9 of the Act, in which inter alia it was averred that petitioner has encroached on an area measuring 30 x 40 feet of Sy.No.14, Chikkabettahalli Village, Bangalore North (hereinafter referred to as 'the Schedule Property' for short), which has been allotted to the respondent. The court by an ad interim order dated 12.03.2021 restrained the respondent from putting up any construction on the schedule property till further orders.
3. The respondent, thereafter, filed an application Order 39 Rule 2A of the Code of Civil Procedure on or about 27.08.2021 before the court in which, inter alia, it was stated that the petitioner had put up construction on the schedule property in violation of the interim order granted on 12.03.2021. The petitioner filed an I.A. on 01.09.2021 seeking vacation of the interim order dated 12.03.2021. The court by an order dated 23.09.2021 on the basis of photographs produced by the respondent held that petitioner has raised construction on a vast area of land and has changed the nature of the land, which was in existence on the date of filing of the complaint. Accordingly, the 4 interlocutory application filed by the respondent was allowed with cost of Rs.20,000/- to be paid by the petitioner to the respondent and following directions were issued:
(i) The petitioner was ordered to be in prison for a period of 75 days.
(ii) An attachment order was issued against the property of the petitioner measuring 600 square feet.
(iii) The Assistant Commissioner of Police, Yelahanka was directed to assist the respondent to remove the structure put up by respondent in violation of the interim order and cost of removal of the structure was directed to be recovered from the petitioner as arrears of land revenue by selling the property in public auction. In the aforesaid factual background, this petition has been filed.
4. Learned counsel for the petitioner submitted that the petitioner had entered appearance before the court on 26.08.2021 and on 27.08.2021, the application under Order 39 Rule 2A of the Code of Civil Procedure was filed and by an order dated 01.09.2021, the proceeding in the case was fixed for filing of objections on 06.09.2021. It is submitted that no 5 opportunity to file objections to the I.A. filed by the respondent was granted. It is also urged that no finding has been recorded with regard to willful disobedience of the order dated 12.03.2021 by the petitioner. It is further submitted that the petitioner has already served sentence of 15 days.
5. On the other hand, learned counsel for the respondent submitted that the petitioner is guilty of violating the interim order and therefore, has rightly been punished. It is further submitted that in compliance of interim order dated 12.10.2021 passed by this court, the Tahsildar has submitted a report, from which it is evident that the petitioner has encroached a large area.
6. We have considered the submissions made by learned counsel for the parties and have perused the record. An order under Order 39 Rule 2A of the Code of Civil Procedure has to be preceded by an enquiry. In the instant case, no enquiry worth the name has been made and on the basis of the photographs produced by the respondent, the impugned order has been passed. In pursuance of the impugned order, the petitioner has already served the 6 sentence of 15 days. There is neither any finding in the order that petitioner has raised construction on the schedule property nor a finding that the petitioner has willfully disobeyed the order dated 12.03.2021 passed by the Court. It is pertinent to note that the petitioner claims title in respect of a different land than the one which has been allotted to the respondent. The question whether the petitioner in violation of the interim order has raised construction on the schedule property is a question of fact, which is in dispute and requires adjudication. The disputed questions of fact could not have been adjudicated without an enquiry. While issuing the impugned directions, the court has prejudged the issue involved in the application under Order 39 Rule 2A of the Civil Procedure Code,1908. The evidence in the proceeding is yet to be recorded. Therefore, in the fact situation of the case, the impugned order cannot be sustained in the eye of law. It is accordingly quashed. The court is directed to decide the application under Order 39 Rule 2A of the Code of Civil Procedure,1908 at the time of passing of final order in the proceeding after recording evidence.
7
Accordingly, the petition is disposed of.
Sd/-
JUDGE Sd/-
JUDGE SS