Sri. Susheel Kumar Vs the Station House Officer (Sho)

SRI. SUSHEEL KUMAR S/O SRI. MANAKCHAND, AGED ABOUT 48 YEARS, R/AT NO. 38, 1ST MAIN, 4TH CROSS, NEW KEMPEGOWDA LAYOUT, BANASHANKARI 3RD STAGE, KATRIGUPPE, BENGALURU - 560 085.

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Digitally signed by SHARADAVANI B Location: High Court of Karnataka

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SRI. NOORULLA S/O SRI. ABDUL GHANI, AGED ABOUT 61 YEARS, OFFICE AT NO. 22/1, MADARSAB LANE, COTTONPET, BENGALURU - 560 053.

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SL. NOS. 1 AND 2 ARE PARTNERS OF M/S. NAVAKAR, A REGISTERED PARTNERSHIP FIRM.

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…PETITIONERS

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(BY SRI. R.B.SADASIVAPPA, ADVOCATE)

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AND:

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THE STATION HOUSE OFFICER (SHO)

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2 - NC: 2026:KHC:10411-DB WP No. 32687 of 2024

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HC-KAR

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BMTF POLICE STATION, BBMP, N.R. SQUARE, BENGALURU - 560 002 REP. BY LEARNED PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA BUILDING,

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ASSISTANT EXECUTIVE ENGINEER (AEE) GANDHINAGAR SUB DIVISION, BRUHAT BENGALURU MAHANAGAGARA PALIKE (BBMP),TCM RAYON ROAD, BENGALURU - 560 002.

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…RESPONDENTS

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(BY SRI. ARUNA G.S, HCGP FOR R1; SRI. B.S. KARTHIKEYAN, ADVOCATE FOR R2)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO i) ISSUE WRIT IN THE NATURE OF CERTIORARI AND QUASH THE IMPUGNED ORDER DATED 24/07/024 VIDE ANNEXURE-K PASSED BY THE KARNATAKA LAND GRABBING PROHIBITION SPECIAL COURT AT BENGALURU IN CASE NO.LGC(T) (CRIMINAL) NO.310/2023 ON IA FILED UNDER SECTION 239 OF Cr.PC AND CONSEQUENTLY, DISCHARGE THE PETITIONERS/ACCUSED FOR THE ALLEGED OFFENCES PUNISHABLE UNDER SECTION 436(A) OF THE KARNATAKA MUNICIPAL CORPORATION (KMC) ACT 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 S RACHAIAH

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HC-KAR

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ORAL ORDER

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(PER: HON'BLE MR. JUSTICE D K SINGH)

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The present writ petition is filed impugning the order dated 24.07.2024 passed in LGC(T) (Criminal) No.310/2023 by the Court of Karnataka Land Grabbing Prohibition Special Courts, at Bengaluru (CH-1), whereby the petitioners are accused and application for discharge in that case came to be rejected.

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On the complaint filed by the Assistant Executive Engineer, Gandhinagar Sub Division, BBMP, Bengaluru, dated 16.09.2019, FIR in crime No.58/2019 dated 16.10.2019 for the offence under Section 436(A) of the Karnataka Municipal Corporations Act,1976 (hereinafter referred to as 'Act' for the sake of brevity) came to be registered against the accused/petitioners. The allegation made in the complaint is that the petitioners have illegally

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4 -

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NC: 2026:KHC:10411-DB WP No. 32687 of 2024

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HC-KAR

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encroached the public road located between the lands bearing CTS No.1411,1412 and 1413 and constructed the buildings on the public road.

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The petitioners have instituted the suit in O.S.No.7501/2018 against one P. Raju, wherein they had categorically undertaken in writing to comply with any order of demolition which could be passed by the competent authorities in the future.

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On 26.02.2019, the said P.Raju filed fresh complaint before the Joint Commissioner (West) Zone, BBMP, Bengaluru requesting for removal of encroachment upon the public road by the petitioners/accused. on inspection, the Assistant Executive Engineer and Surveyor of BBMP confirmed the existence of public road and consequently, the notice dated 24.06.2019 under Section 288(d) of the Act, came to be issued to the petitioners/accused directing them for removal of the encroachment within 10 days.

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HC-KAR

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In response, the petitioners/accused have filed another suit in O.S.No.4828/2019 seeking injunction against Bruhat Bengaluru Mahanagara Palike ('BBMP' for short). However, no interim injunction had been granted by the City Civil Court in favour of the petitioners/accused in the said suit. Further, P. Raju had filed impleading application in the said suit which came to be allowed on 06.01.2021. Thereafter, the petitioners/accused withdrew the said suit on 10.11.2022.

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It is submitted that a second notice dated 29.07.2019 under Section 288(d) of the Act was again issued to the petitioners/accused. Instead of complying the said notice, the petitioners/accused have come before this Court in WP.No.50141/2019 suppressing the earlier civil proceedings and also the undertaking given by them in the suit in O.S.No.7501/2018, which was instituted by them.

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HC-KAR

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Learned Single Judge, however, vide order dated 09.03.2020 in WP.No.50141/2019, has quashed the

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said notice only on the ground of violation of principles of natural justice and directed the BBMP to pass fresh orders after affording the petitioners a hearing.

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In compliance of the direction by this Court in the order dated 09.03.2020, the BBMP has issued a show cause notice dated 29.05.2020 to the

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petitioners/accused. The petitioners/accused in turn responded with a reply dated 22.06.2020 denying all the allegations made against them. After a detailed hearing and examination of documents, including PT sheet and city survey records, BBMP reaffirmed that the petitioners had infact encroached upon a public road measuring 5.8 meters in width and approximately 18.08 meters and 9.75 meters in length between CTS Nos.1411,1412 and 1413 and

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HC-KAR

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said finding was never challenged by the petitioners/accused in any proceedings.

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The charge sheet in the FIR came to be filed and cognizance was taken by the learned Magistrate. However, under the provisions of Section 20 of the Karnataka Land Grabbing Prohibition Act,2011, the said charge sheet was transferred to the Court of Karnataka Land Grabbing Prohibition Special Courts, Bengaluru.

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Learned counsel for the petitioners has vehemently submits that on the basis of the impugned order passed in civil proceedings where the BBMP is not a party, the matter is sub judice whether the petitioners/accused have encroached upon the public road or not and therefore, prays to allow the petition.

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In view of the stand taken by the BBMP authorities that the petitioners/accused have encroached upon the public road and constructed the buildings

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HC-KAR

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thereon, the order of the BBMP was never challenged by the petitioners/accused, we are of the considered view that there exists a prima-facie case against the petitioners/accused. Even the finding of the Civil Court, if any, in a suit where BBMP is not a party and would not binding on the BBMP. In view thereof, there is no substance in the instant petition and it is accordingly, dismissed .

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Sd/(D K SINGH) JUDGE

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Sd/(S RACHAIAH) JUDGE

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SSD List No.: 1 Sl No.: 13

Sri. Susheel Kumar v. the Station House Officer (Sho)

Case brief

What is this about?

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Sri. Susheel Kumar v. the Station House Officer (Sho)

Case brief

What is this about?

What did the court decide?

What the court decided

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