IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION NO.22328 OF 2016 [LB-RES] BETWEEN:
1. KARNATAKA POLICE EMPLOYEES HOUSE BUILDING CO-OPERATIVE SOCIETY, 3RD CROSS, NETAJI NAGAR, HALANA HALLI, T.N. PURA ROAD, MYSURU-570 028.
REPRESENTED BY ITS PRESIDENT, SRI. NANJUNDE GOWDA, 2. SRI. S. SHIVAJI RAO, S/O. LATE N. SHRINIVASARAO, AGED ABOUT 61 YEARS, R/AT NO.1075, SARDAR VALLABHABAI PATEL NAGAR, NADANAHALLI, T. NARASIPURA ROAD, MYSURU-570 026.
[BY SRI. K.R. KRISHNAMURTHY, ADVOCATE] … PETITIONERS AND:
1. THE STATE OF KARNATAKA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF URBAN DEVELOPMENT, VIDHANA SOUDHA, BENGALURU-560 001.
2. MYSORE URBAN DEVELOPMENT AUTHORITY, REPRESENTED BY ITS COMMISSIONER, J.L.B. ROAD, MYSURU-570 005.
3. THE SUPERINTENDING OF ENGINEER, MYSORE URBAN DEVELOPMENT AUTHORITY, J.L.B. ROAD, MYSURU-570 005.
4. THE EXECUTIVE ENGINEER, MYSORE URBAN DEVELOPMENT AUTHORITY, J.L.B. ROAD, MYSURU-570 005.
5. THE TOWN PLANNING MEMBER, MYSORE URBAN DEVELOPMENT AUTHORITY, J.L.B. ROAD, MYSURU-570 005.
6. THE DEPUTY COMMISSIONER, MYSORE DISTRICT, MYSURU-571 129.
7. THE TAHSILDAR, MYSORE TALUK, MYSURU-571 129. … RESPONDENTS [BY SRI. M.A. SUBRAMANI, HCGP FOR R1, R6 AND R7; SRI. T.P. VIVEKANANDA, ADVOCATE FOR R2 TO R5] * * * THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTICE OF CANCELLATION OF LICENSE DATED 18.05.2015 VIDE ANNX-K.
THIS WRIT PETITION COMING ON FOR FINAL HEARING, THIS DAY THE COURT MADE THE FOLLOWING:
ORDER The petitioner which is a house building cooperative Society registered under the provisions of the Karnataka Cooperative Societies’ Act had filed petition seeking quashing of the impugned notice of cancellation of license dated 18.05.2015. The other relief was also sought in the nature of issuance of writ of mandamus to direct the Tahsildar to remove the board put up on the land belonging to the petitioners. After notice was issued to the contesting party, the respondents – Development Authority had filed an affidavit stating that they were withdrawing the impugned notice dated 18.05.2015 reserving liberty to take appropriate action as regards the alleged encroachment of government land. Taking note of the said submission and the affidavit, this court by order dated 14.12.2018, has observed that the prayer sought for cancellation of license dated 18.05.2015 does not survive for consideration.
2. The petitioner has however contended that the proceedings were to continue as regards to prayer No.(ii) relating to issuance of appropriate directions to the Tahsildar for removal of board. The affidavit came to be filed on 19.10.2016 by the then Tahsildar stating that there has been an encroachment of a portion of government land in the layout formed by the petitioner-Society. The report at Annexure ‘E is also a part of the record and it is relied upon by the petitioners who objects to the statements made in the affidavit filed on 19.10.2016.
3. It is settled position of law that when the State seeks to assert the claim as regards a private party with respect to public property, action ought to be initiated under Section 67 if it is falls within the parameters of Section 67 or appropriate action as permissible under the law ought to be resorted. It is noted that the proceedings stated to have been initiated before the Karnataka Land Grabbing Prohibition Act, 2011 is by the impleading applicant. The Board however has been put up by the respondent–Tahsildar. The question of continuance of existence of board without initiating appropriate proceedings by the revenue authorities is legally untenable and is to be removed.
4. In light of the observations made above, liberty is reserved to the respondents-State to take action if the case is so made out to recover land if found to be encroached by the petitioners and to take necessary action as permissible under law to protect its interest pending initiating of proceedings as per law.
5. The counsel appearing for the State submits that if the board is removed and third party interests are likely to be created. However, any action of the State should be preceded by an enquiry as contemplated under Section 67 if permissible or by initiating other necessary action as permissible under law. Unless such initiation is made in the light of the dispute raised by the petitioners, it would not be open to the respondents-State to restrict enjoyment of the petitioners’ property.
6. The impleading application filed by the respondent has been vehemently opposed by the counsel for the petitioners and in light of the order passed and observations made above, it would not be necessary to pass any orders on the impleading application. Accordingly, the said application is disposed off as requiring no further order.
7. In the light of the observations made above, the Tahsildar to remove the board within a period of ten days from the receipt of the certified copy of this Order.
It is made clear that the observations made here are limited for the purpose of disposal of this petition.
Accordingly, petition is disposed off subject to the above observation.
Sd/- JUDGE snc