IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NOS. 49379-49381 OF 2019 (GM-PP) Between:
1. Smt. B.R.Savitha, Aged about 52 years, W/o. M.S.Manjunatha, Khata No.1024/73, No. 6, Doddapete, B.M.Road, Kunigal Town-572130, Tumkur District.
2. Smt. K.N.Mallikamba, Aged about 55 years, D/o. Late K.A.Mahadevappa, Khata No.1029/78, Resident of Doddapete, B.M.Road, Kunigal Town-572130, Tumkur District.
3. Smt. K.Mahalakshmi, Aged about 56 years, W/o. K.R.Krishnaswamy, Khata No.1024/73, Resident of Doddapete, B.M.Road, Kunigal Town-572130, Tumkur District.
(By Sri. Zakiulla Khan, Advocate for Smt. Sudha B., Advocate) ... Petitioners And:
1. State of Karnataka, Housing and Municipal Administration Department, M.S.Building, Dr. B.R.Ambedkar Veethi, Bengaluru-560001, represented By its Principal Secretary, 2. The Town Municipal Council, Kunigal – 572130, Tumkur District-represented By its Chief Officer.
(By Sri. Sridhar N Hegde, HCGP for R1, ... Respondents Sri. Y.D.Shivashankar, Advocate for C/R2) This Writ Petition is filed under Articles 226 And 227 of The Constitution of India praying to quash the notices dated 26.09.2019 at Annexure-W, X and Y issued by the R-2 to the petitioners by way of affixing the same on the doors/walls of the petitioners schedule properties on 01.10.2019.
This Writ Petition coming on for orders this day, the court made the following:
ORDER The petitioners in these writ petitions sought for writ of certiorari to quash the show cause notice dated 26.09.2019 as per Annexures-W, X and Y, issued by the second respondent to show cause as to why action should not be taken against the petitioners for encroachment of the government property.
2. It is the case of the petitioners that, the petitioner No.1 is absolute owner in lawful possession and enjoyment of the property at Sl.No.1 morefully described in the writ petition schedule, having acquired the same through registered gift deed dated 27.10.2005, the petitioner No.2 and 3 are the absolute owners in lawful possession and enjoyment of the writ petition schedule properties at Sl.No.2 and 3 having the husband petitioner No.2 and husband of petitioner No.3 acquired the same through registered sale deeds dated 19.09.1969 and 15.03.1984 respectively from their earlier owners/vendors for valuable consideration. After the Gift deed and sale deeds, the petitioners have got changed the katha in respect of the schedule properties in their names and they have been paying taxes regularly. They have also applied for plan and license from the second respondent and have constructed buildings on the schedule properties wherein they have been carrying on business by obtaining trade license from the second respondent and they have been eaking out their livelihood from the schedule premises. They have also obtained electricity connection to schedule premises.
3. The things stood thus, the second respondent, who is the authority for maintaining the katha and registers for collecting taxes for trade license has issued show cause notice dated 26.09.2019 by way of affixture on the doors and walls of the schedule premises on 01.10.2019 calling upon the petitioners to show cause as to why they should not be evicted from the schedule premises. Therefore the petitioners are before this Court for the relief sought for.
4. I have heard the learned counsel for the parties to the lis.
5. Sri Zakiulla Khan, learned counsel for the petitioners reiterating the grounds urged in the writ petition has contended that the petitioners are the absolute owners and they have not at all encroached any government land as alleged in the show cause notice and the show cause notice issued by the second respondent is without jurisdiction and in utter violation of principles of natural justice and the same cannot be sustained. He would further contend that after the writ petitions are filed, the petitioners have filed objections before the second respondent on 09.10.2019 and even before considering the objections and passing appropriate orders, the second respondent is taking steps to evict the petitioners from the schedule premises. Therefore he sought to allow the writ petitions.
6. Per contra, Sri Y.D.Shivashankar, learned counsel for the second respondent, who issued the show cause notice, submits that the very writ petitions filed by the petitioners are very premature, the objections filed by the petitioners is yet consider and therefore the writ petitions are liable to be rejected. He would further contend that the petitioners filed objections to the show cause notice on 09.10.2019 and the second respondent will consider the objections and pass appropriate orders after holding enquiry as contemplated under the Provisions of Karnataka Public Premises (Eviction of Unauthorized Occupants) Act, 1974. Said submission is placed on record.
7. Learned Government Pleader appearing for the first respondent submits that the very writ petitions filed by the petitioners are premature against the show cause notice and are liable to be rejected.
8. Having heard the learned counsel for the petitioners, it is the specific case of the petitioners that they are the absolute owners in lawful possession and enjoyment of the properties mentioned in the writ petitions schedule under registered gift deed and registered sale deeds respectively. According to them they have not encroached the government property as alleged in the show cause notices. The respondent No.2 issued show cause notices under sub section (1) of Section 5 of the Karnataka Public Premises (Eviction of Unauthorized Occupants) Act, 1974, specifically stated in the grounds No.6 and 7 that the Tahsildar was directed the Assistant Director, Survey Department to conduct survey and file report. As per joint survey and report filed on 07.09.2019 the petitioners shown they have encroached the government property. Therefore the second respondent issued show cause notices calling upon them to show cause on or before 09.10.2019, as to why eviction order should not be made.
9. Admittedly in the present case, petitioners have filed objections to the shows cause notice on 09.10.2019 before the second respondent denying the contents of the show cause notice. It is for the second respondent to consider the objections and to pass appropriate orders on merits. Till then, he should not precipitate further against the petitioners. The petitioners are permitted to produce all the records to prove they are the owners of the properties shown in the show cause notice. With these observations writ petitions are disposed off.
All the contentions of the parties are kept open to be urged before the second respondent.
Ordered accordingly.
SD/- JUDGE KMV*