Dismissed

M/S. S.R.S. Enterprises v. the Director of Agricultural Marketing

Karnataka HC18 Jan 2023WP/53599/2017

Case brief

AI extract

What is this about?

In a writ petition, the petitioner sought to set aside an order evicting him from extra land he had encroached upon. The Karnataka High Court distinguished prior precedent involving drainage encroachment, held that this case involved blocking a common passage causing distress to others, and dismissed the petition without prejudice to regularization.

What did the court decide?

Petition dismissed; no regularization of encroachment granted.

M/S. S.R.S. Enterprises Vs the Director of Agricultural… — Property and Title | Karnataka HC (2023)

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WP No. 53599 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 53599 OF 2017 (APMC)

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BETWEEN:

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M/S. S.R.S. ENTERPRISES NO.280/2, 5^TH CROSS, A-BLOCK, APMC YARD, BANDIPALYA, MYSORE, BY ITS PROPRIETOR, S. PRAKASH, S/O. LATE SIDDOJI RAO, AGED ABOUT 47 YEARS,

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…PETITIONER

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(BY SRI. B R SATHENAHALLI., ADVOCATE)

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AND:

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THE DIRECTOR OF AGRICULTURAL MARKETING NO.16, 2^ND RAJ BHAVAN ROAD, BANGALORE-560 001.

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Digitally signed by POORNIMA SHIVANNA Location: HIGH COURT OF KARNATAKA

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AGRICULTURAL PRODUCE MARKET COMMITTEE MYSORE, MYSORE-NANJANGUD ROAD, BANDIPALYA, MYSORE-560 025, BY ITS SECRETARY.

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…RESPONDENTS

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(BY SRI. G.M. CHANDRASHEKAR, AGA FOR R1; SRI. T. SWAROOP, ADVOCATE FOR R2)

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WP No. 53599 of 2017

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO FILED PRAYING TO SET ASIDE THE ORDER BEARING NO. KRU.U.MAA.EI/ABHIVI2/NYA/248/2016-2017 ISSUED BY FIRST RESPONDENT MARKET COMMITTEE AS PER ANNEXURE-K DATED 08-10-2017 AND ETC

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is before this Court seeking for the

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following reliefs:

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a. Set aside the order bearing No.Kru.U.Maa.Ei/Abhivi2/Nya/248/2016-2017 issued by the first respondent Market Committee as per Annexure-K dated 8-10-2017;

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b. Issue a writ in the nature of writ of Mandamus directing the respondents to implement the order of this Hon’ble Court made in Writ Petition No.37274/2016 (APMC) dated 4-7-2017 as per Annexure-J by considering the representation dated 17-5-2016 as per Annexure-F submitted by the Petitioner and to execute the necessary lease cum sale deed in favor of the Petitioner for the extra 407.12 sq.ft. of site bearing A-280, Bandipalya Market Yard, Mysore forthwith;

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c. Issue any other writ or order or direction as this Hon’ble Court may deem fit in the facts and circumstances of the case in the interest of justice and equity.

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The petitioner was allotted a stray site No.280

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measuring east to west 85 feet and north to south 30

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feet on payment of full value of the site viz., Rs.2,29,500/-, in furtherance of which lease-cumsale deed was executed in favour of the petitioner by the respondent No.2-committee. The petitioner was also granted a licence for operating the notified agricultural produce which is valid upto 31.3.2018 under the Karnataka Agricultural Produce and Marketing (Regulation) Act, 1966. The petitioner sought for modification of the boundaries at the time of allotment. Based on the said request, the committee in its meeting 24.05.2014 considered the request and modified the dimension and accordingly approved additional land occupied by the petitioner to regularise the construction put up by respondent at the cost of Rs.120 per sq.ft. and penalty at the rate of Rs.120/- per sq.ft, in all amounting to Rs.240/- per sq.ft. In the meanwhile, one M/s KNV Sagar and Sons submitted a complaint to the government about the unauthorised construction that

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had come up including that put up by the petitioner.

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The High Level Committee also approved regularisation of the additional construction of 407.12 sq.ft made by the petitioner by imposing cost and penalty, in all amounting to Rs.1120/- sq.ft. In furtherance of the same, the petitioner made payment of Rs.4,55,975/- for the purpose of regularisation. On the basis of the complaint made M/s KNV Sagar and sons, the government addressed a communication dated 27.05.2015 to reconsider the decision taken by the High Level Committee with regard to regularisation of the extra land occupied by the petitioner and submit a revised report. In furtherance of the directions of the State Government to Marketing Committee passed a resolution dated 16.06.2016 reversing its earlier resolution dated 3.01.2015 resolving to refund the amount of Rs.4,55,975/- and to vacate the petitioner from additional land of 407.12 sq.ft.

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It is aggrieved by the same that the petitioner had submitted a representation dated 17.05.2016 to recall the said order. When the same was not considered, the petitioner approached this Cout in W.P.No.37274/2016 for a mandamus directing the respondent to consider the representation which came to be allowed by this Court vide order dated 4.07.2017. On 8.10.2017 the respondent issued notice to the petitioner to vacate the 407.12 sq.ft. It is aggrieved by the same the petitioner is before this Court.

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Sri.B.R.Sathenahalli, learned counsel for the petitioner submits that the Committee having resolved to regularise the excess construction made by the petitioner which was approved by the High Level Committee quantifying the amount liable to be paid for such regularization, the petitioner also having paid the same amount, there is a vested right

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created in favour of the petitioner for resularisation of the construction though the same may be unauthorised.

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He submits that the petitioner having put up construction and operating his business in the said constructed area and as such, the eviction and or demolition thereof would cost loss and injury to the petitioner. It is in that background, he submits that the relief sought for are required to be granted.

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Sri.T.Swaroop, learned counsel for the Committee by relying on the sketches which have been produced along memo dated 9.12.2021 would submit that beside the site bearing No.280, there is a passage which would lead to site No.280-B and the said passage having encroached upon by the petitioner, the width of the passage has been considerably reduced from 11 ft to about 3 feet, thereby making the access to site No.280-B difficult, if not impossible

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for the allottee who may be allotted the said plot. He submits that the encroachment by the petitioner is not just 407.12 sq. ft but is in fact 637.75 sq.ft which causes tremendous inconvenience to the Committee in operating marketing yard as also to the other allottees. No premium can be granted on the petitioner’s violation which has an impact on other allottees in the said marketing yard. Therefore, he submits that the petition is required to be dismissed.

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Heard Sri.B.R.Satehnahalli, learned counsel for the petitioner, Sri.G.M.Chandrashekar, AGA for respondent No.1 and Sri.T.Swaroop, learned counsel for respondent No.2. Perused records.

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Sri.Satenahalli, learned counsel for the petitioner has relied upon the decision of this Court in the case of Bhaskara Reddy -v- Bangalore Development

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Authority and another¹ to contend that even if

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1 ILR 2009 KAR 2882

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there is an encroachment of additional land, same could be regularized by collecting costs and imposing penalty thereto. The decision in Bhaskara Reddy’s case was one which related to a site allotted under the applicable BDA Rules and the encroachment in question was as regards the land between the site allotted and a common drainage, therefore the said encroachment in Bhaskar Reddy’s case did not in any

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manner cause any inconvenience to any other allottees and or BDA. Furthermore, under the applicable BDA (Disposal of Corner Sites and Commercial Sites) Rules, 1984, Rule 5 provides for regularization of encroachment, if any, subject to compliance with the conditions imposed therein and it is in furtherance thereof that this Court directed the regularization.

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In the present case, as could be seen from the

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sketches which have been produced by the Market committee, the encroachment made by the petitioner is as regards the passage leading to another plot No.280-B which only has an access through this passage. On account of the encroachment made by the petitioner, the allottee of plot No.280-B as and when allotted would be deprived of the passage as contained in the plan. Thus, it is clear that the petitioner in order to increase the area of his shop has encroached upon the common area which would cause inconvenience and distress to another person, as also interfere with the layout planning of the Market Committee as regards the market yard. In such facts and circumstances, if the violation committed by the petitioner is approved by this court, the same could also result in many more violations. Hence, I am of the considered opinion that no premium could be paid to the violation

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