IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.6219/2019(GM-RES) BETWEEN:
SMT. PRAMEELA @ PRAMEELA KUMARI W/O RAJENDRA, AGED ABOUT 45 YEARS, AGRICULTURIST AND HOUSEWIFE RESIDING AT MAHAVEERA NAGARA BELTHANGADY-MOODABIDRI ROAD VENOORU, BELTHANGADY TALUK, DAKSHINA KANNADA DISTRICT-574214 (BY SRI A. V. GANGADHARAPPA, ADVOCATE) AND:
1 . THE ASSISTANT EXECUTIVE ENGINEER PUBLIC WORKS, PORT & INLAND WATER TRANSPORTATION DEPARTMENT SUB DIVISION, BELTHANGADY DAKSHINA KANNADA DISTRICT-574214 2 . VENOORU PRIMARY AGRICULTURAL CO- OPERATIVE SOCIETY, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER VENOORU, BELTHANGADY TALUK DAKSHINA KANNADA DISTRICT-574214 ...PETITIONER 3 . TAHSILDAR, BELTHANGADY TALUK DAKSHINA KANNADA DISTRICT-574214.
(BY SRI M. VINOD KUMAR, AGA FOR R1 & R3; MS. EKTA PRADHAN, ADVOCATE FOR SRI RAVI V., ADVOCATE FOR R2) …RESPONDENTS **** THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE LETTER DATED 28.1.2019 ISSUED BY THE R-1 ORIGINAL COPY OF WHICH IS PRODUCED AS ANNEXURE-F BY DECLARING THE SAME AS WHOLLY WITHOUT JURISDICTION AND ILLEGAL.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner filed the present writ petition for a writ of certiorari to quash the letter dated 28.1.2019 issued by the 1st respondent – Assistant Executive Engineer as per Annexure-F declaring the same as wholly without jurisdiction and illegal.
2. It is the case of the petitioner that she does not own any property and eking out her livelihood by working as agricultural labourer and running petty tailoring business. It is further case of the petitioner that she and her husband settled on a vacant property which belong to the Government bearing Sy.No.40/8A2 and started petty tailoring shop for local residents’ requirements. For her need and necessity, the petitioner also covered an extent of about 8 cents of land by using locally available thorny bushes. By hard sweat and labour and spending substantial money, the petitioner and her husband put up a residential house for their residence and converted some portion as a shop. Presently, the petitioner is residing in the house and carrying on small tailoring business in the shop premises.
3. When things stood thus, in the year 2016 the Tahsildar has submitted a proposal to the Assistant Commissioner to reserve 0-25 cents of land in Sy.No.40/8A2 and the Assistant Commissioner has passed an order to reserve 0.40 cents of land in the said land for Nadakacheri and office of the Revenue Officer, which is more than the requirement. Therefore, the petitioner filed an appeal before the Deputy Commissioner challenging the order passed by the Assistant Commissioner. The Deputy Commissioner by the order dated 25.7.2017 allowed the appeal in part and set aside the order passed by the Assistant Commissioner and remanded the matter to the Assistant Commissioner to consider the question of reservation of land, after the disposal of the application filed by the petitioner for regularization of unauthorized occupation of Government land under Section 94C of the Karnataka Land Revenue Act. The said matter is still pending for consideration.
4. It is case of the petitioner that she filed an application under Section 94C of the Karnataka Land Revenue Act seeking regularization of unauthorized occupation. Without holding enquiry, the Tahsildar rejected the application. This order of the Tahsildar was challenged before the Assistant Commissioner. The Assistant Commissioner allowed the appeal in part and directed the Tahsildar to take action as per the order passed by the Deputy Commissioner dated 25.7.2017. In the meanwhile, the 1st respondent issued notice of eviction to the petitioner. When the matter is pending before this Court, the Tahsildar by the order/Endorsement dated 25.2.2019 held that the alleged building of the petitioner is within the marginal land of the State Highway and the building is not used for commercial purpose and therefore the application filed by the petitioner under Section 94-C for regularization of the building is not maintainable and accordingly, rejected the application. Against the said order/Endorsement issued by the Tahsildar, the petitioner filed appeal before the Assistant Commissioner in REV SR 60/2019-20 and the same is still pending for adjudication. Therefore, the petitioner filed the present Writ Petition for the reliefs sought for.
5. The respondent – Government filed objections and denied the averments made in the Writ Petition and contended that after remand made by the Assistant Commissioner, the Tahsidlar visited the spot and after obtaining report from the subordinates, has rejected the petitioner’s application for regularization as per the Endorsement dated 25.2.2019 stating that the structure of the petitioner is abutting the State Highway and which comes within the marginal land of the State Highway. It is further submitted that the petitioner is not residing in the dwelling house, but is carrying out commercial activities (small petty shop). It is also submitted that the authorities rejected the application on the ground that the petitioner has no right to stay in the illegal structure which is in the Government land of the State Highway. Therefore, the petitioner is not entitled to any relief.
6. Sri A.V. Gangadharappa, learned Counsel for the petitioner reiterating the grounds urged in the writ petition contended that the Tahsildar without giving any notice and opportunity of hearing, by the impugned endorsement dated 25.2.2019 rejected the application of the petitioner which is the subject matter of appeal pending before the Assistant Commissioner. Therefore, if the Assistant Commissioner is directed to dispose off the appeal and the interim order granted by this Court is extended till the disposal off the appeal, he has no grievance in disposing off the writ petition. The said submission is placed on record.
7. Per contra, Ms. Ekta Pradhan for Sri Ravi. V., learned Counsel for respondent No.2 submits that the petitioner has not come to the Court with clean hands and she has suppressed all the material facts stating that she has no other land except the Government land. She is also the owner of 2 acres 16 cents in the same village which is also suppressed. Therefore, she is not entitled for any relief before this Court.
8. Sri M. Vinod Kumar, learned AGA appearing for respondent Nos.1 and 2 reiterating the grounds raised in the objections contended that the authorities considering the application and the material on record have come to the conclusion that the petitioner is eking her livelihood in the illegal construction which is abutting the Station Highway for her commercial use and not for residential use. Therefore, the Tahsildar has rightly rejected the application and accordingly, he sought for dismissal of the writ petition.
9. Having heard the learned Counsel for the parties, it is the case of the petitioner that respondent No.1 – The Assistant Executive Engineer without verifying has issued eviction notice dated 28.1.2019 which is the subject matter of the present writ petition. When this Court has granted interim order on 4.2.2019, the Tahsildar during the pendency of the proceedings has issued an endorsement dated 25.2.2019, and against the said endorsement issued by the Tahsildar, an appeal is filed before the Assistant Commissioner by the petitioner. Therefore, it is for the Assistant Commissioner to decide the appeal on merits expeditiously, but not later than three months.
10. In view of the above, without expressing any opinion on the merits and demerits on the contentions raised by the learned Counsel on both sides, it is suffice to direct the Assistant Commissioner to dispose off the appeal in REV.SR.No.60/2019-20 filed by the petitioner within a period of three months from the date of receipt of a copy of this order.
11. However, it is made clear that till the disposal of appeal by the Assistant Commissioner, the interim order granted by this Court will enure to the benefit of the petitioner.
12. All the contentions raised by both parties are kept open to be raised before the Assistant Commissioner.
Accordingly, writ petition is disposed off.
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