Sri Kim Ji Patil v. State of Karnataka [Order dated 05.03.2013]

  IN THE HIGH COURT OF KARNATAKA AT BANGALORE

WRIT PETITION NOS.10374-10375 OF 2013 [KLR,RR/SUR]

Sri Kim Ji Patil, S/O Late Kesharaharjee Patil, Residing at No. 807, Mohan Building, Chickpet, Bangalore 560 053
Represented by his GPA Holder Sri Mahesh Kishanchand, S/O Kishanchand, aged about 44 years, Residing No. 21/1, Craig Park Layout, 
M.G. Road, Bangalore 560 001
                                                                                                ...PETITIONER

Versus
State of Karnataka, Rep. by its Revenue Secretary, Multistoried Building, Bangalore Division, 560 001.
 The Deputy Commissioner, Bangalore Rural District, V.V. Towers Podium Block, Bangalore 560 001
The Assistant Commissioner, Doddaballapur Sub Division, V.V. Towers Podium Block, Bangalore 560 001.
The Thasildar, Devanahalli Taluk, Devenahalli, Bangalore Rural District, 562 110.
                                                                                            ...RESPONDENTS



 THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 15.1.2013 VIDE ANNEXURES-A AND B ANDETC. THESE PETITIONS COMING ON FOR PRELIMINARY 
 BEFORE HEARING THIS DAY, THE COURT MADE THE FOLLOWING: 

HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI

ORDER

1. Smt.M.C.Akkamahadevi, the learned Additional Government Advocate is directed to take notice for the respondents.

2. The petitioner's grievance is over the two notices, both dated 15.1.2013 (Annexures-A and B) issued by the Tahsildar under Sections 39 and 94 of the Karnataka Land Revenue Act, 1964. The impugned notices require the petitioner to produce the documents for showing that he has not encroached the Government property. It further states that, if the petitioner fails to vacate the encroachment, the encroachment would be removed by the Tahsildar's office and that the costs of removing the encroachment would be recovered from the petitioner as if they are the land-revenue arrears.

3. Sri K.Chandrashekara, the learned counsel for the petitioner submits that the petitioner has not encroached any property. He submits that the petitioner is the bonafide purchaser of the property in question. He submits that the respondents have conducted the survey operations without notifying the petitioner. He submits that the impugned notices are virtually in the nature of the orders. They contain an ultimatum that within 15 days, the petitioner has to vacate the encroachment.

4. Smt.M.C.Akkamahadevi, the learned Additional Government Advocate submits that the petitioner is not justified in challenging the show cause notices. They only call upon him to furnish the reply with the supporting documents. She submits that no reply whatsoever is furnished by the petitioner.

5. The submissions of the learned Advocates have received my thoughtful consideration.

6. It is not clear whether the petitioner has submitted the reply and the supporting documents to the Tahsildar to show that he has not encroached any portion of the government lands. If the petitioner has submitted the reply and the supporting documents, the Tahsildar shall pass appropriate orders thereon before taking any coercive steps. If the petitioner has not given the reply, for the reasons best known to himself, one more opportunity shall be given to the petitioner. Because what is involved is the party's interest in the immovable properties.

7. The petitioner is directed to give the reply or show cause that he has not encroached the lands in question, within one week from today. If the petitioner files a reply within one week from today, the same shall be considered by the Tahsildar in accordance with law and the orders shall be passed thereon. It is only on the consideration of the petitioner's objections/reply and the passing of the orders thereon that the Tahsildar would take the coercive steps. If the petitioner fails or defaults in giving the reply within one week, the Tahsildar shall proceed as if the petitioner has no tenable reply in the matter and decide the case in accordance with law.

8. Until such time that the Tahsildar passes the order, status quo in respect of the possession shall be maintained.

9. Before parting with this case, it is necessary to refer to the Apex Court's judgment in the case of JAGPAL SINGH & ORS. v. STATE OF PUNJAB & ORS., reported in AIR 2011 SC 1123, wherein it is held that the common interest of the people cannot be allowed to suffer merely because unauthorised occupation has subsisted for many years. It is not only the power, but the duty of the Tahsildar to have the unauthorised occupation vacated. Paragraph No.13 of the said decision is extracted hereinbelow:-

13. We find no merit in this appeal. The appellants herein were trespassers who illegally encroached on to the Gram Panchayat land by using muscle power/money power and in collusion with the officials and even with the Gram Panchayat. We are of the opinion that such kind of blatant illegalities must not be condoned. Even if the appellants have built houses on the land in question they must be ordered to remove their constructions, and possession of the land in question must be handed back to the Gram Panchayat. Regularizing such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of villagers of the village. The letter dated 26.9.2007 of the Government of Punjab permitting regularization of possession of these unauthorized occupants is not valid. We are of the opinion that such letters are wholly illegal and without jurisdiction. In our opinion such illegalities cannot be regularized. We cannot allow the common interest of the villagers to suffer merely because the unauthorized occupation has subsisted for many years".

10. These petitions are allowed but to the extent indicated hereinabove. No order as to costs.

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