IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 18TH DAY OF JULY, 2019 BEFORE THE HON' BLE MR. JUSTICE S.N.SATYANARAYANA WRIT PETITION NO.24692/2019(KLR-RES) C/W WRIT PETITION NO.27731/2019(KLR-RES) IN W.P. No.24692/2019:
BETWEEN:
SMT. SAROJA AGED ABOUT 44 YEARS WIFE OF MAHESH SHETTY THIMARODY MANE, UJIRE VILLAGE, BELTHANGADY TALUK D.K. DISTRICT. ...PETITIONER (BY SRI KARUNAKAR P. ADV.) AND:
1. STATE OF KARNATAKA DEPARTMENT OF REVENUE BY ITS SECRETARY VIDHANA SOUDHA BENGALURU – 560001.
2. THE ASSISTANT COMMISSIONER PUTTUR D.K. DISTRICT - 574 201 3. THE TAHASILDHAR BELTHANGADY D.K. DISTRICT – 574 214 4. AKRAMA SAKRAMA COMMITTEE BELTHANGADY D.K. DISTRICT - 574 214 5. THE REVENUE INSPECTOR BELTHANGADY D.K. DISTRICT - 574 214 ...RESPONDENTS (BY SRI. H. VENKATESH DODDERI, AGA) THIS WRIT PETITION IS FILED PRAYING TO DIRECT RESPONDENT NOS.3 AND 5 NOT TO TAKE ANY ACTION IN RESPECT OF SCHEDULE PROPERTY IN ORDER TO TAKE POSSESSION OF THE SAME UNTIL THE APPLICATION UNDER FORM NO.57 OF THE PETITIONER IS DECIDED.
In W.P. No.27731/2019:
BETWEEN:
1. SRI JAYAPRAKASH SHETTY S/O LATE MUDDU SHETTY, AGED ABOUT 41 YEARS, BADEKOTTU, UJIRE VILLAGE-574240. BELTHANGDY TALUK, D.K.DISTRICT.
2. SRI BHASKAR NAIK S/O LATE BABU NAIKA, AGED ABOUT YEARS, BADEKOTTU, UJIRE VILLAGE 574240, BELTHANGADY TALUK, D.K.DISTRICT. ... PETITIONERS (BY SRI CHANDRANATH ARIGA K., ADV.) AND:
1. THE DEPUTY COMMISSIONER DAKSHINA KANNADA DISTRICT, MANGALURU 575001.
2. THE ASSISTANT COMMISSIONER PUTTUR SUB-DIVISON, PUTTUR-574201, D.K.DISTRICT.
3. THE TAHASILDAR BELTHANGADY TALUK 574214, D.K.DISTRICT.
4. SRI MAHESH SHETTY THIMARODI, S/O VITTAL SHETTY, THIMARODI HOUSE, POST:UJIRE VILLAGE 574240, D.K.DISTRICT. ...RESPONDENTS (BY SRI H. VENKATESH DODDERI, AGA FOR R1-R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 10.06.2019 PASSED BY RESPONDENT NO.3 IN ENCROACHMENT C.R.38/2018-19 (ANNEXURE-K);DIRECT RESPONDENT NOS.2 AND 3 TO GIVE EFFECT AND TAKE ACTION IN ACCORDANCE WITH THE ORDER DATED 15.12.2018 (ANNEXURE-F) C.R.38/2018-19 AND ORDER DATED 10.05.2019 (ANNEXURE-G) ADS R.E.V.S.R:111/2018-19.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B GROUP’ THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER These two writ petitions are pertaining to land bearing Sy. No.554/1C1 of Ujire Village, Belthangadi Taluk, Dakshina Kannada. The first writ petition which came up before this Court in W.P. No.24692/2019 is filed by one Smt. Saroja, W/o Mahesh Shetty Thimarody of Ujire Village where she would seek that the 3rd and 5th respondents in the said writ petition namely, Tahsildar and Inspector of Revenue, Belthangadi should not take any action in respect of schedule property to the said writ petition until the application filed by her in Form-57 is decided and for other reliefs. The schedule in the said writ petition is with reference to land bearing Sy. No.554/1C measuring 1 acre 26 guntas of Ujire Village, Belthangadi Taluk, D.K. District. When this matter had come up on 01.07.2019, Sri Chandranath Ariga K., learned counsel appeared before the Court and stated that there is one more writ petition filed on behalf of his clients in W.P. No.27731/2019 with reference to the very same subject land and hence, both cases should be taken up together. Accordingly an order was passed to post these two matters on 02.07.2019.
2. When this matter had come up before this Court on 02.07.2019 learned counsel for both writ petitioners were present who brought to the notice of this Court that petitioner in W.P. No.24692/2019 Smt. Saroja is wife of 4th respondent in W.P. No.27731/2019. When the counsel for petitioner in W.P. No.24692/2019 was enquired as to whether he would take notice for fourth respondent Mahesh Shetty Thimarody he stated that he has no instructions. It is in this background that both the matters were clubbed together and an order was passed on 02.07.2019 where certain directions were issued to 3rd respondent Tahsildar for clearing the road said to have been encroached in some portion of the land in Sy. No.554/1C1. In W.P. No.24692/2019 what is shown is Sy. No.554/1C only but in W.P. No.27731/2019, it is shown as Sy. No.554/1C1 with five parts being referred to separately in the said writ petition. This Court by an order passed on 02.07.2019, directed the Tahsildar, Belthangadi Taluk to ensure that all encroachment with reference to the road which was in existence in a portion of Sy. No.554/1C1 should be removed irrespective of the fact of there being any application seeking regularization of unauthorized cultivation with reference to said property namely Sy. No.554/1C1 to make sure that the road is cleared of all encroachments. Thereafter this matter was ordered to be listed on 17.07.2019.
3. When this matter came up before the Court on 17.07.2019, no report was filed as ordered by the Court and none appeared on behalf of the State except learned AGA. However, on 17.07.2019, learned counsel for the petitioners in W.P. No.27731/2019 submitted that the Tahsildar of Belthangadi Taluk has not cleared the entire stretch of road which is situated in Sy. No.554/1C1 and he has filed an affidavit of first petitioner in the said proceedings along with two photographs and a copy of the order of this Court dated 02.07.2019 for having served the same on respondent No.3 on 10.07.2019 and there is an acknowledgement on the said copy indicating that the 3rd respondent has received the same on 10.07.2019. In addition to that, a copy of the order of the Assistant Commissioner, Puttur Sub Division, Puttur, dated 28.06.2019 in proceedings No.L.N.D.C.R:578/2018-19 is also produced along with an affidavit.
4. This day, Sri Ganapati Shastri the Tahsildar of Belthangadi Taluk is present before the Court pursuant to the order of this Court dated 17.07.2019. He would bring to the notice of the Court that he has already complied the order dated 02.07.2019 in removing the encroachment with reference to the portion where the road existed in Sy. No.554/1C1. According to him, the part Nos.P2 to P5 which is referred to in W.P. No.27731/2019 is imaginary and what is there in said survey no. is only Sy. No.554/1C1 which according to him is under unauthorized occupation of several persons and one such person is the petitioner in W.P. No.24692/2019 Smt. Saroja who is also wife of 4th respondent Mahesh Shetty Thimarody in W.P. No.27731/2019. Sri Ganapati Shastri, Tahsildar of Belthangadi Taluk would state that, Smt. Saroja, her husband Mahesh Shetty Thimarody as well as Jayaprakash Shetty who is first petitioner in W.P. No.27731/2019 are all relatives. That they were members of the same gang earlier. Since, there is disharmony between them, has reached the level of hatredness and enmity. He would state that, the first petitioner Jayaprakash Shetty is an accused in a criminal case and 4th respondent Mahesh Shetty Thimarody is already a rowdy sheeter. That they are in the habit of encroaching Government land and terrorising the people in the area, as could be seen from the previous records available in his office and that they are persons with criminal background. He would state that, after he has taken charge as Tahsildar except this matter no other activity of them has come to his knowledge. So far as petitioner No.1 is concerned, he would state that he did his identification parade with reference to a criminal case.
5. The Tahsildar of Belthangadi Taluk who is present before the Court, would state that he has cleared all the encroachment. However, learned counsel for petitioners in W.P. No.27731/2019 would state that there was already an inspection done by Revenue Inspector of Belthangadi Taluk on 19.11.2018 in IR 1280/18-19, 1293/18-19 in Ottuvari CR:38/2018-19 where he would refer to four parts of encroachment of Government land in Sy. No.554/1C1 i.e., Sy.No.554/1C1P2, Sy.No.554/1C1P3, Sy.No.554/1C1P4, Sy.No.554/1C1P5. According to the said report of the Revenue Inspector, 0.13 acre is encroached by Hemant Gowda in Sy.No.554/1C1P2, 0.01¾ acre is encroached by Smt. Geetha in Sy.No.554/1C1P3, 0.05 acre encroached by Suresh Gowda and 0.17 acres encroached by Mahesh Shetty Thimarody respectively.
6. He would state that, the petitioner in W.P. No.24692/2019 Smt.Saroja is wife of Mahesh Shetty Thimarody who is claiming regularization of not only 17 cents but entire 1 acre 26 guntas of Sy. No.554/1C1 which includes the land said to have been encroached by other persons namely Hemant Gowda, Geetha, Suresh Gowda also. He would also bring to the notice of this Court that notice was issued by the then Tahsildar, Belthangadi Taluk on 21.11.2018 to Hemant Gowda, Geetha, Suresh Gowda and Mahesh Shetty with reference to their attempt to encroach the land bearing Sy. No.554/1C1P2, 554/1C1P3, 554/1C1P4 and 554/1C1P5 and the said notice is issued pursuant to an application received from the citizens of Panyalu, Thimarodi, Billarodi, Kalasadabettu of Ujire village dated 26.09.2018 and also the inspection report of Revenue Inspector dated 19.11.2018. Though it is stated that reply is given by all persons, it is the reply of one Mahesh Shetty is produced in W.P. No.27731/2019.
7. It is further seen that on 15.12.2018, the Tahsildar of Belthangadi Taluk has passed an order directing the Revenue Inspector to remove the encroachment of the road in Sy. No.554/1C1 and to register criminal prosecution against the said four persons namely Hemant Gowda, Geetha, Suresh Gowda and Mahesh Shetty under S.192A of the Karnataka Land Revenue Act, 1964. The Revenue Inspector Sri Ravikumar who is present before the Court along with Tahsildar would state before the Court that after such order was passed on 15.12.2018 in Ottuvari C.R:38/18-19, knowing that Tahsildar is proceeding with the work of removal of encroachment of the road, Mahesh Shetty Thimarody who is 4th respondent in W.P. No.27731/2019, challenged the order dated 15.12.2018 before the Court of Assistant Commissioner, Puttur in ADS R.E.V.S.R:111/2018-19. The said appeal came to be rejected on 10.05.2019 by withdrawing the interim order granted by the Assistant Commissioner in implementation of the order of the Tahsildar dated 15.12.2018 in Ottuvari C.R:38/18-19. It is thereafter the Tahsildar issued a notice on 06.06.2019 to Mahesh Shetty Thimarody for removal of encroachment in Sy. No.554/1C1 and subsequently an order is also passed by Tahsildar on 10.06.2019 against Mahesh Shetty Thimarody, Hemant Gowda, Suresh Gowda and Geetha in the same proceedings Ottuvari C.R:38/18-19.
8. It is seen that by order dated 10.06.2019 the very same Tahsildar who took heroic steps to remove the encroachment has later withdrawn his order. To this Sri K. Chandranath Ariga learned counsel would state that the order dated 10.06.2019 withdrawing the earlier order for removal of encroachment is the result of Tahsildar being buckled under pressure. In reply Sri Ganapati Shastri, Tahsildar, Belthangadi Taluk who is present before the Court would state that the order was withdrawn not for being under pressure but because it was later realised that the same does not come under his jurisdiction.
9. Further, it is seen that thereafter the Assistant Commissioner himself has taken steps to pass an order in L.N.D.C.R:578/2018-19 dated 28.06.2019 in directing the Tahsildar of Belthangadi Taluk who is present before the Court to register in Column No.11 of Pahani record of Sy.
No.554/1C1, an extent of 20 links wide road and to remove encroachment with reference to the road passing through Sy. No.554/1C1 pursuant to order dated 15.12.2018 passed in Ottuvari C.R:38/2018-19 by Tahsildar of Belthangadi Taluk and the sketch of Sy. No.554/1C1 already prepared by the Department. The Government road which is passing through Sy. No.554/1C1 was directed to be described as public road and thereafter to transfer the same to Gram Panchayat of Ujire Village. While passing said order, the Assistant Commissioner has also noticed certain discrepancies committed by Smt. Saroja Shetty, who is wife of Mahesh Shetty Thimarody. An application is filed by her in Form 57 on 02.03.2019 which is subsequent to the order dated 15.12.2018 passed by the Tahsildar in holding that there is encroachment by four persons i.e. Hemant Gowda, Geetha, Suresh Gowda and Mahesh Shetty Thimarody. This would clearly indicate that Smt. Saroja was not in unauthorised cultivation of said land, instead, it was her husband who had encroached the said land. Therefore the application in Form No.57 is filed by her only with an intention to regularise the illegal encroachment into said land by her husband. It is in this background she is seeking regularization of the said extent in her name, misusing the benevolent provisions of the State provided under the Karnataka Land Revenue Act. Admittedly the said provision is meant to help the landless people who cultivate land for livelihood but it is definitely not meant to aid people with criminal background to encroach Government land by taking law into their hands.
10. At this juncture, it is also brought to the notice of the Court by Sri Ganapati Shastri, Tahsildar that 4th respondent Mahesh Shetty is a rowdy-sheeter and so also the first petitioner in W.P. No.27731/2019 Jayaprakash Shetty is an accused in a criminal case. He would state that, they were all members of same gang, it is out of their greed to claim all vacant land available in the locality which has resulted in this kind of street fight. In this the Officers of the State are mute spectators. He would also state that necessary action is required to be taken pursuant to the order of the Assistant Commissioner dated 28.06.2019. While implementing the same the order of this Court dated 02.07.2019 has also strengthened his hand. Accordingly he has completed the work of removal of encroachment of road portion seen in Sy. No.554/1C1. He would seek permission of this Court to remove the encroachment in the entire area of Sy. No.554/1C1 not only of Mahesh Shetty Thimarody but also others since all of them have collectively involved in the said criminal activity. Said submission of Tahsildar of Belthangadi Taluk is placed on record. This Court would observe that pursuant to order dated 28.06.2019, such power is also given to him by his higher Authority Assistant Commissioner which he shall exercise and make sure that entire extent of encroached land is secured to the State. In the light of aforesaid fact situation, this Court would observe that regularization of unauthorised occupation is only to protect the poor and destitute people eking their livelihood with the use of the land under their cultivation.
But this is definitely not to help people who are involved in criminal activities, thereby supporting them to usurp and assert their right over Government land as if it is their right and said lands are their property.
11. Accordingly, the order dated 28.06.2019 passed by the Assistant Commissioner, Puttur Sub Division, Puttur, in L.N.D.C.R:578/2018-19, granting necessary power and direction to Tahsildar of Belthangadi Taluk is confirmed by this Court. This Court would reserve liberty to him to carryout such exercise. While doing so, this Court would take on record eight photographs which are produced by the Tahsildar to demonstrate that he has completed the work of removal of encroachment of road portion along with a Compact Disc (CD) which would indicate the entire process of removal is recorded, the same are handed over to learned AGA this day who shall file the same along with a memo and the said documents shall be maintained in the record of these writ petitions.
12. In the light of the aforesaid discussions, the writ petitions are liable to be disposed of. The writ petition which is filed by Smt. Saroja seeking certain directions to respondent Nos.3 and 5 cannot be entertained in as much as even before an application is filed by her on 02.03.2019, there was already an order passed by the competent Authority to remove illegal encroachment committed by her husband Mahesh Shetty Thimarody, Suresh Gowda, Geetha, Hemant Gowda who are involved in similar act. Therefore the said application which is filed by her in Form 57 shall not be entertained. If it is entertained, it would only support the criminal activity of Mahesh Shetty Thimarody and hence, such application should therefore be rejected. With this observation, the writ petition filed by Smt. Saroja in W.P. No.24692/2019 is hereby rejected.
13. Now coming to W.P. No.27731/2019, learned counsel for petitioners would bring to the notice of this Court that 4th respondent Mahesh Shetty Thimarodi is a rowdy-sheeter as observed by this very Bench in Crl.P. No.3708/2014. The facts of said proceedings would disclose that there was an attempt by Mahesh Shetty Thimarodi to encroach into private land bearing Sy. No.124/4/B2 and Sy.No.501/3 of Ujire Village, Belthangadi Taluk, Dakshina Kannada District, in which, an order was passed by this Court on 30.07.2014 (reported in 2014(5) KCCR 873) pursuant to which criminal proceedings was launched against him by filing a complaint in Crime No.364/2014 on 11.09.2014 wherein, after investigation, charge-sheet is filed against him in Charge-sheet No.14/15 dated 02.02.2015 by Belthangadi Police of South Canara District. It is seen that though the complaint is registered by Belthangadi Police, since this Court expressed that said rowdy sheeter Mahesh Shetty Thimarody is having influence with the local police, Mangaluru Police were directed to investigate and file charge-sheet which was duly complied and the same is pending in C.C. No.110/2015 on the file of Prl. Civil Judge and JMFC, Belthangadi.
14. In that view of the matter, W.P. No.27731/2019 which is filed seeking direction to respondent Nos.2 and 3 to give effect to the order dated 15.12.2018 is allowed in as much as the same is already complied by the Tahsildar who is present before the Court and he shall also act pursuant to the direction of this Court and remove the entire encroachment in Sy. No.554/1C1 in as much as the said encroachment not being by persons who squat on land for livelihood but for criminal activities. Further with reference to the quashing of order dated 10.06.2019, same may not arise for consideration in view of the fact that subsequent to that, the Tahsildar has complied the order of his Senior Officer Assistant Commissioner, dated 28.06.2019. Therefore the question of quashing Annexure-K does not arise as it has already spent itself.
15. Pursuant to disposal of the writ petitions with aforesaid observations, Tahsildar, Belthangadi Taluk is hereby directed to complete removal of entire encroachment of Government land in Sy. No.554/1C1 within four weeks from today and in the meanwhile, he shall also handover the land which is meant to be used as road to Gram Panchayat, Ujire within two weeks therefrom. He shall also communicate this order to Gram Panchayat, Ujire to make sure that they would form a pakka road in that place within four weeks from that date.
Sri Ganapati Shastri, Tahsildar and Sri Ravi Kumar, Revenue Inspector of Belthangadi Taluk, D.K. District are directed to affix their signature in the order sheet of this proceedings and their signature shall be identified by learned Addl. Government Advocate Sri H. Venkatesh Dodderi.
Sd/- JUDGE sac*