IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD WRIT PETITION No.58686 OF 2014 (GM-PP) BETWEEN:
Smt.D.Shobha W/o Ravikantha S.S.Gowda, Aged about 46 years, Proprietrix, M/s S.R.S.Industries, S.M.37, Industrial Estate, Hassan-573201. Resident of D.N.209, “Meghana Nilaya”, Basaveshwara Road, Indira Nagar, Sathyamangala Layout, Hassan-573201. …Petitioner (By Sri Shivananda.D.S, Advocate for Sri. M.V.Hiremath, Advocate) AND:
1. The Managing Director KSSIDC Ltd., Administrative Office, Industrial Estate, Rajajinagar, Bangalore-10.
2. The Deputy General Manager KSSIDC Ltd., Zonal Office-III Udayagiri Industrial Estate, Mysore-20.
3. The Manager, KSSIDC Industrial Estate, Divisional Office, Sagar Road, Shivamogga-577206.
4. The Assistant Manager, KSSIDC Industrial Estate, B.Katihalli, Arsikere Road, Hassan-573201. … Respondents (By Sri Pradeep C Yadav, Advocate for R1 and R2, R3 and R4 are served but unrepresented) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to quash the impugned order dated 19.11.2014 passed by the Court of Principal District Judge at Hassan in M.A.No.57/2013 as per Annexure-K and further to quash the impugned order passed by the R-3 dated 15.06.2013 issued on 17.06.2013 as per Annexure-H by issue of writ in the nature of certiorari or any other writ, order, direction as the case may be.
This Writ Petition coming on for Preliminary Hearing in ‘B’ Group this day, the Court made the following:
O R D E R This writ petition is directed against the order dated 19.11.2014 passed by the Principal District Judge, Hassan in M.A.57/2013 confirming the order dated 17.06.2013 passed by respondent No.3- Karnataka State Small Scale Industries Development Corporation Ltd., directing the petitioner to vacate the premises which is in unauthorised occupation of the petitioner.
2. The case of the petitioner is that the Industrial Shed bearing No.SM-37 measuring 388.59 sq.mtrs., was allotted to the petitioner by lease cum sale agreement dated 30.11.2009. The petitioner has constructed a godown in the area, which is allotted to the petitioner on 06.11.2009. Petitioner was running small scale steel industry manufacturing steel furniture and trailers of the tractors. Further the case of the petitioner is that as per the lease cum sale agreement, the measurement was shown as 388.59 sq. meters., but there was a shortage of area to an extent measuring 172.01 sq.mtrs. The petitioner requires the area for expansion of stall and keep the manufactured materials to protect from natural decay air, sun and the same area has been very much needed for the said purpose, which is abundantly available in front of petitioner estate in SM-37 and behind the estate of C- 1, C-2 and D-3 shown in the industrial area plan. The petitioner made oral and so many written representations for due allotment of the extra area which is shortage while allotting the said area. Since his representation for allotment of extra area is pending, petitioner was utilizing the area for dumping his material. The respondent-Authority, by Annexure-H dated 15.06.2013, has rejected the request of petitioner for allotment of excess land measuring 172.01 sq.mtrs., and also directed the petitioner to vacate the land in which they have unauthorisedly occupied.
3. Being aggrieved by the same, the petitioner has filed an appeal before the appellate-Authority, Principal District Judge at Hassan under Section 10 of Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974. Appellate Authority has confirmed the order passed by the respondent No.3 at Annexure-H. Being aggrieved by the same, she has filed this writ petition.
4. Sri M.V.Hiremath, learned counsel for the petitioner submits that at the time of the lease cum sale agreement the area is shown as 388.59 sq.mtrs. But the shed which is allotted to the petitioner measures only 216.58 sq.mtrs. Since there is a vacant space adjacent to the said shed No.SM-37, the petitioner has encroached the same by using the open space for dumping his manufacturing products.
5. It is further contended that he has given a representation to the authority for granting the remaining extent of 172.01 sq.mtrs., at Annexure-F. The respondent- Authority has rejected her representation and also passed an order for evicting the petitioner from the excess land i.e., 172.01. sq.mtrs. He has further contended that the Authority could not have passed the eviction order while considering his representation. They are clubbed together and passed an order. The appellate Authority, while considering all these aspects, has wrongly confirmed the order passed by the respondent No.3. Hence, he seeks for allowing the writ petition.
6. Per contra, the learned counsel appearing for the respondents submits that it is an admitted fact that the petitioner is in possession of unauthorised land-open space of 172.01 sq.mtrs. There is no dispute in respect of the open space which he has been utilizing. Hence, the Authority has rightly passed an order for vacating the space. Hence, he defended the order passed by the original Authority as well as the appellate Authority.
7. Heard the learned counsel for the parties.
8. By the lease cum sale agreement, shed No.SM-37 was allotted to the petitioner and the contention of the petitioner is that as per the lease cum sale agreement, the measurement of the said area is 388.59 sq.mtrs., the shed is totally measuring only 216.58 sq.mtrs. There is a shortage of 172.01. sq.mtrs. The petitioner has given a representation for allotment of remaining extent of 172.01 sq.mtrs., in view of the shortage in allotment of shed as per the lease cum sale agreement. Before allotting that land the petitioner was in the possession of open space vacant land situated at C-1, C-2 and D-3 and he has constructed the same unauthorisedly.
9. It is the admitted fact that the petitioner has constructed the shed in vacant land situated behind the area of C-1, C-2 and D-3. The authority has rightly initiated proceeding under Section 10 of Karnataka Public Premises (Eviction of Unauthorised Occupants) Act 1974. The first appellate Authority has considered the contention raised by the parties and rightly recorded its finding. The relevant paragraph Nos.13 and 14 of the order of the Trial Court is extracted as under:
“13. Now, let me advert to the documents furnished by the appellant to know whether the appellant is in possession of the schedule-II property and whether her possession is lawful. Document No.1 is the letter written by the respondent addressing to appellant wherein it states that, appellant herein given a representation to allot the vacant land situated behind shed No.C- 1, C-2 and D-3. Appellant constructed the shed unauthorisedly. Therefore, the respondent rejected her representation. Further the respondent also warned the appellant stating that if she did not vacate the premises, they will vacate the appellant from the premises through due process of law. This document clearly speaks truth that the appellant unauthoris1edly occupied the open space i.e. schedule-II property and she also constructed the shed without the permission of the respondent. Further the appellant filed some documents such as lease cum sale agreement. The said document is pertaining to shed No.37 and there is no dispute pertaining to shed No.37. Another document is the possession letter pertaining to shed No.37 and there is no dispute in this regard. Further, a letter written by the appellant addressing to the respondent-corporation. In this letter this appellant admitted that behind shed No.C-1, C-2 and D-3, there exists 1620 feet open space and she already constructed the shed and started using the shed and then she requested the KSSIDC to allot the said vacant land. As already stated supra, the respondent rejected to allot the said land.
14. After going through the documents furnished by the appellant herein it is crystal clear that the appellant’s possession is not legal and she unauthorisedly trespassed the land of KSSIDC and unauthorisedly constructed the shed and she is using the said shed. Contention of the counsel for the appellant that as per the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, the respondent has to issue the show cause notice. I do not find and legal strength in the arguments put forth by the learned counsel for the appellant. The respondent in their letter dated 15.06.2013 made it clear that they are not ready to allot the vacant space and they also directed this appellant to vacate the land. After waiting one year, now the respondent is making attempt to vacate the land from the illegal possession of the appellant. Therefore, I do not find the appellant made out any grounds to interfere in the orders of the respondent. One who seeks equity must do equity. One who comes to the Court should be in clean hands. In the instant case, taking the advantage that the husband of the appellant was working in the respondent-Corporation, not only she got the land allotted to her and also she trespassed the land of the respondent and unauthorisedly constructed the shed. Thus, I have no hesitation to hold that the appellant had not made any grounds to allow this appeal. Hence, I answer point No.1 in the affirmative and point No.2 in the negative.”
10. Therefore, I do not find any grounds to interfere in the order passed by the respondent and order passed by the first appellate Authority. In respect of the contention of the petitioner that there is shortage of area in allotment, liberty is reserved to the petitioner to give fresh representation to the respondents. Respondent-Authority may consider the same and pass appropriate orders in accordance with law.
With the above observations, the writ petition is dismissed.
Sd/-
JUDGE rv/gjm