Karnataka High Court
St. Marys Church vs State Of Karnataka on 12 September, 2024
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NC: 2024:KHC:37628
WP No. 18153 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
WRIT PETITION NO. 18153 OF 2024 (LB-RES)
BETWEEN:
ST. MARY'S CHURCH,
REPRESENTED BY
THE PARISH PRIEST/FR. WILLIAM PEREIRA,
AGED 49 YEARS,
S/O LAWRENCE PEREIRA,
ARASIKERE, HASSAN-573103.
...PETITIONER
(BY P.P.HEGDE SENIOR COUNSEL FOR SRI. VENKATESH
SOMAREDDI, M/S P.P. HEGDE ASSTS., ADVOCATES)
AND:
Digitally signed
by YAMUNA K L
Location: High 1. STATE OF KARNATAKA,
Court of BY SECRETARY TO GOVERNMENT,
Karnataka URBAN DEVELOPMENT DEPARTMENT, (M & UDAS),
ROOM NO. 434, VIKASA SOUDHA,
BANGALORE-560001.
2. COMMISSIONER,
CITY MUNICIPAL COUNCIL,
ARASIKERE,
HASSAN-573103.
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NC: 2024:KHC:37628
WP No. 18153 of 2024
3. MR. SUNIL KUMAR .K
AGED ABOUT 34 YEARS,
S/O KATRAJ,
R/AT HASSAN ROAD RIGHT SIDE,
VI CROSS, ARSIKERE TOWN,
ARSIKERE -573103.
PH NO. 9880890503,
PAN NO. HXEPS5556R,
AADHAR NO. 465861504420.
...RESPONDENTS
(BY SRI SPOORTHI V. HCGP FOR R1., ARATHI FOR R2,
VIDYA SELVAMONY FOR R2, GANAPATHI BHAT VAJRALLI
SR.COUNSEL ADV. FOR B. MADHUSUDHAN ADIGA FOR R3.,
ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH
THE IMPUGNED NOTICE DATED 10/06/2024 BEARING NO.
NA.SA.A(2)/CR/NYA/20/2024-25 (ANNEXURE-E) ISSUED BY
RESPONDENT NO.2 AND ECT.,
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL ORDER
This writ petition is filed challenging the impugned notice dated 10.06.2024 issued by the respondent No.2 vide Annexure-E. And also sought for writ mandamus -3- NC: 2024:KHC:37628 WP No. 18153 of 2024 directing the respondents not to take action including demolition of the structure put up by the petitioner pursuant to the notice dated 10.06.2024 vide Annexure-E.
2. The brief facts leading rise to filing of this writ petition are as under:
The petitioner owns land in Sy.No.520/2 of Arasikere village, Kasaba hobli, Hassan District. He is in possession since from 70 years. The land is used for religious purposes and accessible through Sy.No. 317 which belongs to the Government. The petitioner submitted a representation dated 01.03.1974 to the Tahasildar seeking protection of the land. It has come to the knowledge of the petitioner, writ petition is filed in W.P.No.26179/2023 in the nature of public interest litigation seeking for removal of encroachment alleging that the petitioner has encroached upon the Government land. It is contended that the petitioner was not arrayed as a respondent in the said writ petition. It is contended that the petitioner filed an application for impleadment in the -4- NC: 2024:KHC:37628 WP No. 18153 of 2024 said writ petition. It is contended that without issuing notice to the petitioner and holding any enquiry directed the petitioner to remove the alleged encroachement. Hence, this writ petition.
3. Heard P.P.Hegde learned senior counsel for petitioners and Ganapathi Bhat Vajralli, senior counsel for B.Madhusudhan Adiga, for respondent No.3.
4. Learned counsel for the petitioner submits that, the petitioner is the owner of land bearing Sy.No. 520/2 and petitioner has no access to his land except passing through the land bearing Sy.No. 317 and the petitioner has submitted a representation to the Tahasildar. In the meanwhile the writ petition came to be filed in the nature of public interest litigation without arraying the petitioner as a party in the writ petition. He submits that the counsel appearing for respondent No.2 in the said writ petition made a statement before the Hon'ble Division Bench, that the respondent No.2 is taking a steps -5- NC: 2024:KHC:37628 WP No. 18153 of 2024 to remove the encroachment. Hence, he submits that the petitioner filed an application impleading him as respondent in the said petition. Hence, submits that impugned notice issued by respondent No.2 is in violation of principles of natural justice. Hence, prays to allow the writ petition.
5. Per contra respondent No.3 submits that Sy.No. 317 is the Government land, petitioner has no right to pass through Sy.No. 317 and he submits that petitioner has encroached land in Sy.No. 317 by fencing. Hence, on these grounds prays to dismiss the writ petition.
6. Per contra learned counsel for the respondent No.2 submits that if a reasonable time is granted to the respondent No.2. The respondent No.2 will conduct an enquiry and pass an appropriate order in accordance with the law.
7. Perused the records and considered the submissions of the learned counsel for the parties, the -6- NC: 2024:KHC:37628 WP No. 18153 of 2024 grievance of the petitioner is that the respondent No.2 without holding any enquiry issued an impugned notice calling upon the petitioner to remove the fence. As could be seen from the records the respondent No.2 without holding an enquiry has issued an impugned notice. Thus, the action of respondent No.2 is in violation of principles of natural justice. On these grounds impugned notice liable to be set aside. Hence, on these grounds allow the impugned notice.
ORDER
i) The writ petition is allowed;
ii) The Annexure-E is disposed of.
Impugned notice is treated as a
show cause notice.
iii) The petitioner is at liberty to respond to the show cause notice within a period of 15 days from today.
iv) Thereafter, the respondent No.2 providing an opportunity of hearing to both the petitioner as well as -7- NC: 2024:KHC:37628 WP No. 18153 of 2024 respondent No.3 and pass an appropriate order in accordance with the law within 50 days from the date of receipt of the reply.
v) Petitioner and respondent No.3 are directed to co-operate with the respondent No.2 for early disposal.
Sd/-
(ASHOK S.KINAGI) JUDGE SRK List No.: 1 Sl No.: 59