Karnataka High Court
Sri Krc Shekar vs Assistant Executive Engineer on 19 April, 2024
Author: S.G.Pandit
Bench: S.G.Pandit
-1-
NC: 2024:KHC:15751-DB
WP No. 13778 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF APRIL, 2024
PRESENT
THE HON'BLE MR JUSTICE S.G.PANDIT
AND
THE HON'BLE MR JUSTICE C.M. POONACHA
WRIT PETITION NO. 13778 OF 2023 (KLGP)
BETWEEN:
SRI KRC SHEKAR
S/O RAMALINGA SHETTY,
R/AT NO 25, RANDADASAPPA LAYOUT,
BANNERGHATTA ROAD,
BENGALURU - 560030
(SINCE DECEASED BY HIS LRs)
1. C SAROJA,
W/O LATE KRC SEKAR,
AGED ABOUT 70 YEARS,
R/AT NO 2, RANDASAPPA LAYOUT,
BANNERGHATTA ROAD,
BENGALURU - 560030
Digitally signed
by BHARATHI
S 2. NAGARATHNA
Location: HIGH W/O SHANMUGA,
COURT OF AGED ABOUT 54 YEARS,
KARNATAKA R/O NO 25, SUBASHNAGAR,
PALLI PALYAM ERODE,
TAMIL NADU - 638006
WRONGLY SHOWN IN THE COMPLAINT AS
R/AT NO. 25, RANDASAPPA LAYOUT,
BANNERGHATTA ROAD,
BENGALURU - 560030
3. C RADHA KRISHNA,
S/O LATE KRC SEKAR,
AGED ABOUT 52 YEARS,
R/AT NANJAPPA LAYOUT,
-2-
NC: 2024:KHC:15751-DB
WP No. 13778 of 2023
ADUGODI BENGALURU - 560030
4 HEMALATHA
W/O NAGARJA ,
AGED ABOUT 44 YEARS,
1ST MAIN, LALJINAGR, LAKKASANDRA,
BENGALURU - 560030
...PETITIONERS
(BY SRI. PRASANNA KUMAR P., ADVOCATE)
AND:
ASSISTANT EXECUTIVE ENGINEER,
BRUHAT BENGALURU MAHANAGARA PALIKE,
BTM LAYOUT, SUB DIVISION ,
BENGALURU - 560076
...RESPONDENT
(BY SRI.B.S. KARTHIKEYAN., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA R/W SECTION 482 OF CPC, 1973 PRAYING
TO ISSUE A WRIT OF CERTIORARI AND QUASH THE IMPUGNED
ORDER-DATED 10.03.2023 PASSED BY THE COURT OF THE
KARNATAKA LAND GRABBING PROHIBITION SPECIAL COURTS AT
BENGALURU (CH-2) IN LGC (G) No. 1811/2019 WHICH IS
REGISTERED BY THE RESPONDENT No. 2/BBMP AS AGAINST THE
PETITIONERS HEREIN WHO ARE ARRAYED AS ACCUSED Nos. 1(a) TO
1(d) FOR THE OFFENCES PUNISHABLE UNDER Sec. 4 AND 5 OF THE
KARNATAKA LAND GRABBING PROHIBITION ACT, 2011, WHEREIN
THE LEARNED SPECIAL COURT WAS PLEASED TO REJECT THE
DISCHARGE APPLICATION FILED BY THE PETITIONERS UNDER SEC.
227 OF Cr. P. C AND CONSEQUENTLY DISCHARGE THE PETITIONERS
IN THE PRESENT CASE (PRODUCED VIDE ANNEXURE-A) AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, POONACHA.J., MADE THE FOLLOWING:
ORDER
The present writ petition is filed challenging the order dated 10.03.2023 passed by the Karnataka Land Grabbing -3- NC: 2024:KHC:15751-DB WP No. 13778 of 2023 Prohibition Special Courts, Bengaluru (Court Hall - 2)1 in L.G.C. (G) No.1811/2019, whereunder the discharge application filed by the petitioners under Section 227 of the Code of Criminal Procedure2 has been dismissed.
2. The relevant facts necessary for consideration of the present petition are that one Sri K.R.C. Sekar who is the husband of the petitioner No.1 and father of petitioner Nos.2 to 4 was the absolute owner in occupation and possession of the property bearing site Nos.48 to 51 situated at Adugodi Village, Begur, Bannerghatta Road, Bengaluru. That a building has been constructed by the said K.R.C. Sekar over the site Nos.48 and 49 after obtaining approval from the BBMP. That during the year 1984, the land in site Nos.50 and 51 was dug to form a storm water drain which was allowed to pass the said sites. That the BMTF police attached to BBMP registered a case in Crime No.103/2012 against the said K.R.C. Sekar alleging that he has put up illegal structures over the storm water drain.
3. It is the contention of the petitioners that the BBMP came to the property on 12.08.2023 and demolished a portion 1 Hereinafter referred to as the 'Special Court') 2 Hereinafter referred to as 'Cr.P.C.' -4- NC: 2024:KHC:15751-DB WP No. 13778 of 2023 of the slab constructed over the storm water drain and they continued to demolish the slab put over the storm water drain day by day and the construction put up on the storm water drain was demolished in the year 2013 itself by the BBMP and the encroachment was cleared. That subsequently, BBMP have demolished the said slab to an extent of 1242 sq.ft. and again put up a slab over the storm water drain to an extent of 1242 sq.ft by themselves and the accused persons have no role in putting up the said slab over the storm water drain to the extent of 1242 sq.ft. It is contended that the said K.R.C. Sekar died on 22.08.2017 and in view of the settled position of criminal law, the vicarious liability cannot be fastened on the legal heirs of K.R.C. Sekar. Hence, it is contended by the petitioners that they are liable to be discharged from the proceedings initiated by the BBMP before the Special Court.
4. It is forthcoming that said K.R.C. Sekar filed a suit in O.S. No.6138/2013 against the Commissioner and Assistant Executive Engineer of BBMP seeking for an injunction to restrain them from demolishing the slab put up over the storm water drain built over the site Nos.51 and 52. In the said suit, an application was made by the respondent -BBMP, subsequent -5- NC: 2024:KHC:15751-DB WP No. 13778 of 2023 to which the suit was transferred to the Special Court to be tried in terms of the provisions of the Karnataka Land Grabbing Prohibition Act, 20113 and registered as LGC(T) No.153/2019. Pursuant to the notice issued, the petitioners and BBMP entered appearance before the Special Court in the said proceedings. The Special Court, thereafter, after hearing the matter regarding maintainability of the suit, vide order dated 06.08.2019, dismissed the same as is not maintainable and further directed the Assistant Executive Engineer, BBMP to initiate the proceedings against the legal representatives of K.R.C. Sekar as they have put up slabs over the storm water drain.
5. Consequently, BBMP initiated proceedings against the petitioners which have been registered as LGC(G) No.1811/2019 . The petitioners who arrayed as accused Nos.1 to 4 in the said proceedings entered appearance and the petitioners filed an application under Section 227 of Cr.P.C. for discharge. The BBMP filed its objections to the said application. The Special Court vide its order dated 10.03.2023, dismissed 3 Hereinafter referred to as 'the Act' -6- NC: 2024:KHC:15751-DB WP No. 13778 of 2023 the said application. Being aggrieved, the present writ petition is filed.
6. Learned counsel for the petitioners vehemently contends that the alleged encroachment of the storm water drain was in the year 2013 which have been cleared by the BBMP on 12.08.2013 and that the Act came into force on 20.10.2014 and hence, the Special Court had no jurisdiction to continue with the proceedings initiated by the BBMP. It is contended that the encroachment over the storm water drain was by K.R.C. Sekar and the petitioners have not encroached the storm water drain and hence, the continuation of the criminal proceedings against the legal representatives of the said K.R.C Sekar does not arise. It is further contended that the Special Court has erroneously rejected the application filed by the petitioners for discharge and the said order of the Special Court is liable to be interfered with.
7. Per contra, learned counsel for the respondent- BBMP justifies the order passed by the Special Court and contends that after the encroachment on the storm water drain was cleared by the BBMP in the year 2013, which was made by -7- NC: 2024:KHC:15751-DB WP No. 13778 of 2023 K.R.C. Sekar, subsequently, the petitioners have also once again put up a slab over the storm water drain. He further submits that the Special Court vide its order dated 10.03.2023, has considered all aspects of the matter and the said order is not liable to be interfered with.
8. The submissions of both the learned counsels have been considered and the material on record have been perused. The question that arises for considered is "whether the order dated 10.3.2023 is liable to be interfered with?"
9. As noticed above, O.S. No.6138/2013 filed by K.R.C. Sekar against the BBMP is undisputed and the same is a matter of record. It is further a matter of record that the said suit was ordered to be transferred to the Special Court and the same was registered as LGC(T) No.153/2019. Further, the order dated 06.08.2019, passed in the said proceedings is a matter of record and undisputed. It is consequent to the direction made by the Special Court in its order dated 06.08.2019 that BBMP has initiated proceedings in LGC (G) No.1811/2019 against the petitioners.
-8-
NC: 2024:KHC:15751-DB WP No. 13778 of 2023
10. The Special Court while considering the contentions of the petitioners in the discharge application has recorded the following findings:
"20. In our considered view, the above said contentions of the accused have no substance at all. Absolutely there are no records to show that BBMP has demolished the entire storm water drain in the year 2013 itself. On perusal of the letter referred by the accused which is dated 08.08.2013 written by the Assistant Executive Engineer, BBMP to the Superintendent of Police, BMTF it is clear that the Assistant Executive Engineer, BBMP requested the Superintendent of Police, BMTF to give police protection for demolition of unauthorised RCC Cover slab over storm water drain near Marvo Europa Tiles Shop situated at BBMP Ward No.146, Bannerghatta Road Lakkasandra. Nowhere in the said letter it is mentioned BBMP/complainant has demolished alleged storm water drain alleged to have been constructed by the accused of the present case over the schedule land. Admittedly, it is the specific allegation of the BBMP that the accused have encroached storm water drain in Sy. No. 84/1 of Adugodi Village, Bannerghatta road and put up slab over storm water drain to an extent of 1242 Sq. Ft. Admittedly the accused have not produced any documents to show that the alleged encroachment of the Government property was cleared by the BBMP in the year 2013 itself. Hence we are of the opinion that the above said contentions of the accused have no substance at all.
27. Apart from that, the contention taken on behalf of the accused that the complainant has illegally formed storm water drain in Site Nos. 50 and 51 is to be decided by this Court only after full fledged trial. The further contention of the accused that BBMP has demolished the slab put up over the storm water drain and again put up slab over storm water drain to an extent of 1242 Sq. Ft. is to be adjudicated by this Court only after full fledged trial."
(emphasis supplied) -9- NC: 2024:KHC:15751-DB WP No. 13778 of 2023
11. It is clear from the aforementioned and from the material on record that it is the allegation of the BBMP that after it demolished the slab over the storm water drain, the petitioners have put up a slab over the storm water drain to the extent of 1242 sq.ft. It is the contention of the petitioners that the slab was put up over the storm water drain by K.R.C. Sekar which was demolished by the BBMP in the year 2013 and thereafter, the petitioners have not put up any slab over the said property.
12. While it is the assertion of the petitioners that the encroachment made on the storm water drain was by K.R.C. Sekar which was demolished in the year 2013 and it is the contention of the BBMP that after the storm water drain was demolished in the year 2013, the petitioners once again put up a slab over the storm water drain, thereby encroaching upon the same, it is clear that the said aspect is a factual one which is required to be decided during the course of trial and it cannot be the subject matter of adjudication and proceedings for discharge under Section 227 of Cr.P.C.
- 10 -
NC: 2024:KHC:15751-DB WP No. 13778 of 2023
13. The vehement contention on behalf of the petitioners that the allegation of land grabbing was against the K.R.C. Sekar and the petitioners who are the legal representatives cannot be held vicariously liable for the same is ex-facie untenable and liable to be rejected, having regard to the contention made on behalf of the BBMP that subsequent to removal of the encroachment of the storm water drain in the year 2013, the petitioners have once again put up a slab over the said property, thereby encroaching the same. As noticed above, the said aspect of encroachment by the petitioners which is the subject matter for consideration being a factual one is required to be adjudicated by the Special Court after consequent to trial and as rightly held by the Special Court cannot be adjudicated in discharge proceedings.
14. It is relevant to note that, while considering the aspect of vicarious liability of the petitioners, the Special Court has recorded the following findings:
"23. As we have discussed above, accused Nos. 1
to 4 of the present case being the Legal Representatives of late K.R.C. Sekar have already come on record in Civil Suit when it was pending before the City Civil Judge, Bengaluru. On perusal of the case papers of O.S. No. 6138/2013, it is evident that on 06.12.2017 accused Nos. 1 to 4 of the present case had filed an interim
- 11 -
NC: 2024:KHC:15751-DB WP No. 13778 of 2023 application with a prayer to permit them to come on record as they are the legal representatives of the deceased K.R.C. Sekar. Accordingly, the Civil Court allowed the application and permitted them to come on record as they are the Legal Representatives of late K.R.C. Sekar. Further, it is pertinent to note here that after they were brought on record, they got amended the plaint and sought the relief of declaration and mandatory injunction against the complainant of the present case. It is not the case of the accused that after the death of K.R.C. Sekar, the case was closed as abated and thereafter the complainant has implicated them as accused of the present case. Admittedly after transfer of the said case to this Court, case was registered in L.G.C. (T) 153/2019 and this Court has passed a specific order on 06.08.2019 to initiate proceedings against the plaintiffs of O.S. No. 6138/2013 as they had put up slabs over storm water drain in the suit schedule A and B properties. Under such circumstances, the contention of the accused that in criminal law vicarious liability cannot be fastened, is not applicable to the case on hand."
15. During the course of submissions, learned counsel for the petitioners has filed a memo along with a copy of the examination in chief of the Assistant Executive Engineer of the BBMP which has been recorded as PW.1 by the Special Court on 11.01.2024. Placing reliance on the same, learned counsel would contend that even as per the statement made by PW.1, the petitioners have not encroached the storm water drain.
16. It is relevant to note that consequent to the order dated 10.03.2023, wherein the discharge application of the petitioners was dismissed, the trial in the proceedings before
- 12 -
NC: 2024:KHC:15751-DB WP No. 13778 of 2023 the Special Court has commenced and the statement of PW.1 has been recorded. At the present stage, it would not be appropriate for this Court to take into consideration the single statement made by PW.1 and adjudicate upon the matter before the Special Court based on the said statement. The trial of the matter having commenced, it is appropriate that the Special Court deal with the contentions of the parties on its merits.
17. The petitioners have failed in demonstrating that the order dated 10.03.2023 is erroneous and liable to be interfered with by this Court in the present writ petition. Hence, the question framed for consideration is answered in the Negative.
18. In view of the aforementioned, the writ petition is dismissed as being devoid of merit.
SD/-
JUDGE SD/-
JUDGE BS List No.: 1 Sl No.: 27