Basagouda Patil S/O Shankar Vs Deputy Commissioner

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ANNEXURE-A DATED 05.05.2011 BEARING NO.NCR:CR06/2011-12 ISSUED BY THE 2^ND RESPONDENT AS ILLEGAL.

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

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CORAM: THE HON'BLE MRS JUSTICE M.G.UMA

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ORAL ORDER

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The petitioners have approached this Court seeking to quash Annexure-A dated 05.05.2011 issued by the 2^nd respondent, as the same is illegal.

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Heard Sri. Rajashekhar Burji, learned counsel for the petitioner and Sri. T. Hanumareddy, learned AGA for the respondents. Perused the materials on record.

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Learned counsel for the petitioners contends that, the petitioners are in occupation of the lands bearing Survey No.357 measuring 9 Acres 33 Guntas, Survey No.359, measuring 9 Acres 10 Guntas and Survey No.360, measuring 7 Acres 37 Guntas, situated in Raibag, since prior to 1953-54. The revenue records, from an undisputed point in time show the names of the ancestors of the petitioners, as persons in occupation of the lands in question. Ignoring all those facts, the impugned notice was issued, alleging

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that the petitioners have encroached upon 30 acres of government land and calling upon them to clear the said encroachment. On this ground, the impugned notice does not survive for consideration, as it lacks any authority.

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Learned counsel for the petitioners further submitted that, the petitioners have filed the suit in O.S.No.286/2006, before the learned Additional Civil Judge (Jr. Dn.), Raibag, and the said suit came to be decreed vide judgment dated 14.07.2009, produced as per Annexure-K. The permanent injunction was granted in favor of the petitioners against the government. Therefore, the impugned notice is liable to be quashed.

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Learned counsel for the petitioners also submitted that, as per Section 94(3) of the Karnataka Land Revenue Act, 1964 (‘the KLR Act’, for short), the competent authority to take steps for clearing any encroachment or evicting the petitioners from the

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lands, is the Deputy Commissioner. However, the Deputy Commissioner has not issued any notice. On the other hand, the impugned notice was issued by the Tahsildar of Raibag, which is bad in law. Therefore, he prays for allowing the petition by quashing the impugned notice.

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Per contra, learned AGA opposing the petition submitted that, no action as contemplated under Sections 39 or 94(3) of the KLR Act has been initiated against the petitioners, by the competent authority, i.e., the Deputy Commissioner. The submission made by the learned counsel for the petitioners is premature in nature. The land in question admittedly belongs to the State Government. However, in some revenue records, the names of the petitioners, and their predecessors in title appeared without any basis. Hence, a showcause notice was issued in order to comply with the principles of natural justice, calling upon the

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petitioners to vacate the premises. In the impugned notice, there is reference to the order dated 22.09.2008, passed in the case of Lalitha Sastry Vs. State of Karnataka and Ors.¹ , wherein, the Coordinate Bench of this Court, referring to the circular issued by the State Government, categorically held that, in order to meet the principles of natural justice, the circular provides for the issuance of a show-cause notice. Therefore, in consonance with the said order, the show-cause notice came to be issued by the Tahsildar, providing an opportunity for the petitioners to put forth their contentions regarding their possession of the property. There is absolutely no reason for the petitioners to approach this Court challenging the said notice instead of showing cause for the same. Therefore, the writ petition lacks merits, and prays for dismissal of the petition.

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1 W.P.Nos.3969 and 9198 of 2007

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Heard Sri.Rajashekhar Burji, learned counsel for the

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petitioner and Sri.T. Hanumareddy, learned AGA for respondents No.1 and 2. Perused the materials on record.

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On perusal of the materials, the revenue records pertaining to the disputed land shows the name of the government in column No.9. However, in column No.12, the names of the private parties, who are said to be the predecessors in title of the petitioners, appeared, as they are the cultivators of the land. Now it is the contention of the respondents that the petitioners are the encroachers of the government land. This claim is to be proved in an inquiry that is to be conducted by the Deputy Commissioner, as provided under the Karnataka Land Revenue Act.

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Admittedly, the petitioners filed a suit in O.S.286/2006, before the learned Additional Civil Judge (Jr.Dn.), Raibag, seeking grant of permanent injunction against the Range Forest Officer, the

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Tahsildar of Raibag, and the State of Karnataka represented by the Deputy Commissioner. The said suit came to be decreed vide the judgment dated 14.07.2009. It is stated that the defendants are permanently restrained from evicting the plaintiffs from the suit lands without due process of law. Therefore, it is clear that the decree passed in favor of the petitioners is not an absolute decree granting permanent injunction, but rather it is a decree restraining the defendants from evicting the plaintiffs from the suit lands without following due process of law. Therefore, the petitioners cannot find fault with the issuance of the show-cause notice, which is impugned in this case.

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The next contention raised by the learned counsel for the petitioners that, as per Sections 39 and 94(3) of the KLR Act, it is the Deputy Commissioner, who is required to initiate proceedings for evicting the petitioners. There cannot be any dispute with regard

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to the same. The Deputy Commissioner, being the competent authority, may initiate action against the petitioners if he desires to do so. It is important to note that, neither under Section 39 nor under Section 94 of the KLR Act, issuance of a show-cause notice is contemplated. The impugned notice itself

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suggests that it was issued based on the observations made by the coordinate bench of this Court in Lalitha Sastry’s case (supra), wherein reference is made to a circular issued by the government on 08.09.2008, to provide an opportunity to persons, who are in occupation of government land, to voluntarily give up such possession. The same cannot be termed as a proceeding either under Section 39 or under Section 94(3) of the KLR Act. It is only a notice issued to the petitioners to show cause as to why they should not be evicted from the land in question. If the petitioners are having any justifiable cause, they could have showed the cause by filing their

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objections. It is thereafter left to the competent authority referred to under the KLR Act, to initiate action in accordance with law. But at no stretch of the imagination it could be said that the impugned notice issued by the Tahsildar is bad in law. Therefore, I am of the opinion that the petition lacks

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merit, and the same is liable to be dismissed.

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Accordingly, the petition stands dismissed.

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Sd/(M.G.UMA) JUDGE

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gab CT:ANB List No.: 2 Sl No.: 7

Basagouda Patil S/O Shankar v. Deputy Commissioner

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Basagouda Patil S/O Shankar v. Deputy Commissioner

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