Mr Vijaya Shekar Thangiah, Vs a Shivakumar

THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO1.QUASH THE IMPUGNED COMPLAINT DATED 01/04/2024 (VIDE ANNEXUREA1) FILED BY THE RESPONDENT NO.1 BEFORE THE KARNATAKA LAND GRABBING PROHIBITION SPECIAL COURT, BENGALURU IN LGC(P) NO.264/2024 AND ALL ACTIONS PURSUANT TO THE SAME AND ETC.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE D K SINGH and HON'BLE MR. JUSTICE RAJESH RAI K

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ORAL ORDER

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(PER: HON'BLE MR. JUSTICE RAJESH RAI K)

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The petitioners in this Writ Petition sought the following

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relief:

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"(i) To quash the Impugned Complaint dated 01.04.2024 (vide Annexure A1 filed by the Respondent No.1 before the Karnataka Land Grabbing Prohibition Special Court, Bengaluru in L.G.C. (P) No.264/2024 and all actions pursuant to the same;

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(ii) To set aside the Order dated 23.10.2024 (vide Annexure A2 passed by the Karnataka Land Grabbing Prohibition Special Court, Bengaluru

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in L.G.C. (P) No.264/2024 dismissing Interlocutory Application No.1 and 2 and taking cognizance of offences punishable under Section 4(3) and 5 of the Karnataka Land Grabbing Prohibition Act against the Petitioners;

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(iii) To pass such other orders as this Hon'ble Court may deem fit to suit the circumstances of the case in the interest of Justice and equity."

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The facts apposite for consideration as borne out from the pleadings are as under-

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A complaint has been filed by respondent No.1 before the Land Grabbing Prohibition Special Court (for brevity, " the Special Court ") under Section 9(1) of Karnataka Land Grabbing Prohibition Act, 2011 (for brevity, " the Act "), on 01.04.2024 alleging that the petitioners by encroaching 2 guntas of "B" kharab land in Sy.No.7/1A2 bearing PID No.82-82-13 situated at 80 feet road, Binnamangala, Manavarthe Kaval, K.R. Puram Hobli, Bengaluru East Taluk, Bengaluru, have constructed a Complex known as "George Thangaiah Complex" and

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thereby committed the offences punishable under Section

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4(3) and 5 of the Act. Along with the complaint, respondent No.1 has filed I.A.No.1 under Order XXXIX Rule 1 and 2 r/w Section 151 of CPC for exparte adinterim order of injunction against the petitioners restraining them from alienating, transferring or creating any third party right over the said property. Accordingly, the Special Court passed interim order against the petitioners restraining them from alienating or transferring or creating any third party interest on the property. Pursuant to the notice on the said I.A. by the Special Court, the petitioners i.e. respondent Nos.1 to 5 before the Special Court appeared through their counsel and after filing the statement of objection to the aforesaid I.A., filed I.A. No.2 under Order XXXIX Rule 4 r/w Section 151 of CPC r/w Section 9(5) of the Act to vacate the interim order dated 05.04.2024 and I.A.No.3 under Section 9(5) of the Act praying to dismiss the complaint by dropping the proceedings.

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The Special Court, after hearing both the parties, has dismissed I.A.Nos.2 and 3 filed by the petitioners and made the interim order dated 05.04.2024 absolute. Aggrieved by which, the petitioners are before this Court in the instant petition.

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We have heard Sri K.G.Raghavan, learned Senior Counsel appearing for the petitioners, Sri Sandesh J.Chouta, learned Senior Counsel appearing for respondent No.1 and learned Additional Government Advocate for respondent Nos.2 to 4.

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The contentions of the learned Senior Counsel for the petitioners are that the complaint filed by respondent No.1 is illegal, malicious, malafide and abuse of process of law. The Special Court without application of mind and without any reasoning took cognizance of the complaint and passed the interim order, and thereafter, rejected the application filed by the petitioners for vacating the interim order. According to the learned Senior Counsel, 1 gunta of kharab land in Sy.No.7/1A and 2 guntas of land in Sy.

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No.7/1B were granted in favour of Late George Thangaiah and subsequently, the Deputy Commissioner i.e. respondent No.2 cancelled the said grant on 19.08.2020 and cancelled the conversion order dated 20.01.1976. The said order was challenged by petitioner Nos.1 to 3 before this Court in W.P.No.8972/2020 and this Court vide order dated 10.09.2020 quashed the order of the Deputy Commissioner. The said order was affirmed by the Coordinate bench of this Court in W.A.No.552/2020.

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The learned Senior Counsel also contended that at the instance of respondent No.1, the Tahsildar, Bengaluru East Taluk lodged a complaint before the Bengaluru Metropolitan Task Force (BMTF) against the petitioners in respect of same cause of action and though an FIR was registered in Crime No.2/2020 against the petitioners, the same was quashed by this Court in W.P.No.8073/2020 vide order dated 22.03.2024. Thus, it is contended that respondent No.1 is in the habit of filing series of frivolous

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complaints against the petitioners with an intention to harass the petitioners with ulterior motives.

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He also contended that the averments of the complaint do not make out a case against the petitioners for the offences punishable under Sections 4(3) and 5 of the Act for the reason that as per Section 2(e) of the Act "Land Grabbing" is defined as "every activity of grabbing

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of any land whether belongs to Government, local authority, religious or charitable institution or endowment, including Waqf or any other private person or a group of persons without any lawful entitlement and with a view to illegally taking possession such lands". In the case on hand, there is no such encroachment or illegal possession by the petitioners either of government or private lands. In such circumstance, taking cognizance by the Special Court is totally misconceived and without any authority of law. Accordingly, he prays to allow the writ petition by granting the reliefs sought in the petition.

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In order to buttress his argument, he relied on the judgment of MOHD. SIDDIQ ALI KHAN AND ANOTHER ETC., Vs. SHAHSUN FINANCE LTD. AND ANOTHER - 2005 SCC ONLINE AP 187 .

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Per contra , the learned Senior Counsel for respondent No.1/complainant contended that there is no perversity or illegality in the proceedings or the order passed by the Special Court and accordingly, the writ petition is not sustainable, either on law or on facts. He would further submit that the grant order relied on by the petitioners dated 26.12.1975 and the subsequent cancellation proceedings by the Deputy Commissioner which was quashed by this Court is in no way connected to the property in question encroached by the petitioners in Sy.No.7/1A2 measuring 2 guntas of 'B' kharab land situated at 80 feet road, Binnmangala, Manavarthe Kaval, K.R.Puram, Bengaluru East Taluk, Bengaluru and the construction of the Complex thereon, which was challenged before the Special Court by respondent No.1.

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Further, the Special Court took cognizance of the offence after obtaining a detailed report from the Tahsildar of the Bengaluru East Taluk, K.R. Puram, Bengaluru as per Annexure-K to Writ Petition dated 21.05.2024.

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According to the learned Senior Counsel, the Special Court, after carefully considering the report and other aspects of the matter, took cognizance of the offences. As such, the proceedings cannot be termed as an abuse of the process of Court and law. The allegations in the complaint has to be proved in a full fledged trial before the Special Court. Hence, he prays to dismiss the writ petition.

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Having heard the learned Senior Counsel for the respective parties and on perusal of the documents placed before us, it is seen that the allegations in the complaint filed by respondent No.1-complainant before the Special Court in paragraph No.4 are as under:

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" 4. Late George Thangiah along with Vijay Shekhar Thangiah, Rachael Chaitra Prabhakar, Sudeep Thangaiah and Shonali

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Thangalah, illegally and with intent to deprive the public use over the kharab land, took over 2 guntas of the said kharab land and made it a part of the Schedule Property and constructed a commercial complex over it, under the name and style of 'George Thangalah Complex. A perusul of the khata extract of the Schedule Property dated 13.06.2017 would establish that Respondent No. 15 have declared the sital area to be 28314.0 Sq. Ft. Whereas in the R.T.C. records, it is stated that out of the 24 guntas in the Schedule Property, only 22 guntas is available for their use and the remaining 2 guntas of land is kharab land. 24 guntas of land approximately measures 26136 sq. ft. and 22 guntas of land measures 23958 sq. ft. Therefore, evidently, an excess of 4 guntas, is being included by Respondent No. 1-5, for their private commercial use, as per the khata extract. Firstly, 2' guntas or 2178 Sq.ft of kharab land could not have been included by the said Respondents into their property for commercial-private use. Secondly, over and above the kharab land which has been illegally enroached by the Respondent, an additional 2178 Sq. Ft of land (28314 Sq Ft

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as per Khata Extract - 26136 Sq.Ft as per revenue records, which is 24 guntas including 2 guntas of Kharab).

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Further, it is the specific case of the complainant that the petitioners have encroached the land bearing Sy. No.7/1A2, bearing PID No.82-82-13 situated at 80 feet road, Binnamangala, Manavarthe Kaval, K.R. Puram Hobli, Bengaluru East Taluk, Bengaluru. Though it is vehemently argued by the learned Senior Counsel appering for the petitioners that the land in question was part and parcel of the property bearing Sy.No.7/1A and Sy.No.7/1B and the same was granted to the petitioners way back in the year

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1975 and subsequently, cancelled by the Deputy Commissioner, which was set aside by this Court, on careful perusal of the records, it is noticed that the survey numbers mentioned in respect of said lands are Sy.No.7/1A and Sy.No.7/1B. However, in the complaint, the land is described as Sy.No.7/1A2. In such circumstance, the petitioners have to establish the fact that the subject land and the earlier land granted to them

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are one and the same in a full fledged trial before the Special Court by placing sufficient documents. No doubt, a complaint was lodged before the Special Court and the Special Court took cognizance for the offences punishable under Section 4(3) and 5 of the Act. However, the complainant must prove the ingredients of Section 2(d) and 2(e) of the Act before the Special Court for taking cognizance of the offence. If the complainant is able to prove that the land grabber greedily without any lawful entitlement, has illegally took possession of such lands as mentioned in Section 2(e) of the Act, then the Special Court is empowered to take the cognizance of the offence. In the instant case, the Special Court apart from the contents of the complaint relied on the report of the Tahsildar, Bengaluru East Taluk dated 21.05.2024 as per Annexure-K to the writ petition. As such, we are of the view that the genuineness of the said report has to be tested along with the evidence of both the parties in a full fledged trial and also considering the documents placed by

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the petitioners as relied by them. It goes without saying that the petitioners are at liberty to produce all the documents before the Special Court to prove in their defence. In that view of the matter, we not inclined to interfere with the proceedings, cognizance and the interim order passed by the Special Court. Accordingly, the writ petition is dismissed . However, the Special Court is directed to conclude the proceedings at the earliest within an outer limit of six months from the date of receipt of a certified copy of this order.

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SD/(D K SINGH) JUDGE

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SD/(RAJESH RAI K) JUDGE

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PKS List No.: 1 Sl No.: 35

Mr Vijaya Shekar Thangiah, v. a Shivakumar

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Mr Vijaya Shekar Thangiah, v. a Shivakumar

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