1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE Dr.JUSTICE VINEET KOTHARI WRIT PETITION No.33843 OF 2017 (LB-RES) BETWEEN:
SHREE ADI MASTYAMBIKA TEMPLE REPRESENTED BY ITS DHARMADASHEE SHRI.A.JAYAVELU SWAMIJI S/O.G.LINGAPPA AGED ABOUT 62 YEARS R/O.INDIRANAGAR VARAMBALLI VILLAGE TALUK AND DISTRICT UDUPI-576213.
... PETITIONER (BY SRI:N S BHAT, ADV FOR SRI:RAVINDRA B DESHPANDE, ADV) AND:
1. THE PRINCIPAL SECRETARY (PANCHAYAT RAJ) RURAL DEVELOPMENT AND PANCHAYAT RAJ M.S.BUILDING, AMBEDKAR VEEDHI BENGALURU-560001.
2. CHIEF EXECUTIVE OFFICER ZILLA PANCHAYAT UDUPI AT UDUPI-576213.
3. EXECUTIVE OFFICER TALUK PANCHAYAT UDUPI UDUPI-576213.
4. THE SPECIAL TAHASILDAR BRAHMAVARA TALUK AND DISTRICT:UDUPI-576213.
5. PANCHAYAT DEVELOPMENT OFFICER VARAMBALLI GRAM PANCHAYAT TALUK AND DISTRICT UDUPI-576213.
... RESPONDENTS (BY SRI:A K VASANTH, AGA FOR R1 & R4) THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED LETTERS DATED 8.5.2017 ISSUED BY PRINCIPAL SECRETARY (PANCHAYAT RAJ) THE RESPONDENT NO.1 AT ANNEXURE-F LETTER DATED 1.6.2017 ISSUED BY CEO., Z.P.- UDUPI RESPODNENT NO.2 AT ANNEXURE-G LETTER DATED 14.6.2017 ISSUED BY RESPONDENT NO.3. AT ANNEXURE-H, LETER DATED 24.6.2017 ISSUED BY RESPONDENT NO.4 AT ANNEXURE-J AND NOTICE DATED 12.7.2017 ISSUED BY RESPONDENT NO.5 AT ANNEXURE-K AND ETC., THIS WP COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Mr.N S Bhat, Adv. for Mr.Ravindra B Deshpande, Adv for the Petitioner. Mr.A K Vasanth, AGA for the Respondent Nos.1 and 4.
1. The petitioner – Shri.Adi Mastyambika Temple, represented by its Dharmadarshee - Shri.A.Jayavelu Swamiji, Varamballi Village, Udupi Taluk and District has filed this petition in this Court on 25.07.2017 aggrieved by the action taken by the respondent – Panchayat Development Officer of Varamballi Gram Panchayat to direct the petitioner-Trust to remove the encroachment by way of construction of Temple in excess of 900 square feet permitted as per the license permission given to the licencee - Shri.Thimma Poojari, who is said to have given his consent to the petitioner-Trust under an Agreement Annexure-A dated 30.01.2009 for construction of the said Temple.
2. Upon the complaint filed by one Shri.Prasad Bhandari, son of Nilappa Bangera, the Upa-Lokayukta of Karnataka State, Bengaluru, Justice Subhash B Adi, the former Judge of this Court holding an enquiry under Section 12(1) of the Karnataka Lokayukta Act, 1984 and after giving an opportunity of hearing to the petitioner- Trust also, it was found that the petitioner-Trust had encroached the Government land of Sy.No.199 even though the allotment in favour of Thimma Poojari was in Sy.No.197/44 and the encroachment was made in Sy.No.199 which was adjacent to the Sy.No.197/44 of its southern side of Varamballi Village.
3. The relevant finding of the Upa Lokayukta, Karnataka State vide Annexure-E dated 23.01.2017 is quoted below for ready reference:
“REPORT UNDER SECTION 12(1) OF THE KARNATAKA LOKAYUKTA ACT, 1984 Sub: Complaint filed by Sri.Prasad Bhandari – S/o NIlappa Bangera, Shanthinagar, 5th Cross, Varamballi Village, Brahmavara Post, Udupi District – reg.
******** “A complaint was registered on the basis of complaint filed by one Sri.Prasad Bhandari – S/o Nilappa Bangera, Shanthinagar, 5th Cross, Varamballi Village, Brahmavara Post, Udupi District (hereinafter referred to as complainant for short) against Sri.Raghav Shettigar – Revenue Inspector, Bhramavara, Udupi District 2) Sri.Ravikumar – Special Tahasildar, Brahmavar, Udupi District and 3) Sri.Shrikanth – PDO, Varamballi Village, Brahmavara, Udupi District (hereinafter referred to as respondent Nos.1 to 3 respectively for short) alleging that, being Public/Government servant, has committed misconduct, an investigation has been taken up u/s 9 of the Karnataka Lokayukta Act, 1984.
2. According to the complainant: A site measuring 2.75 cents, approximately 1200 sq.ft bearing survey No.197/44 was allotted by government to one Thimma Poojari for construction of a house. The PDO Varamballi Gram Panchayat had issued license in favour of a person claiming to be a trustee of Sri.Adimasthikambika temple to construct temple building in the aforesaid site allotted for construction of house to Sri.Thimma Poojari. Even though, as per license permission was accorded to put up construction of 900 sq.ft. the temple has been built covering 1,930.50 sq.ft encroaching government land adjoining the said site. Inspite of representation submitted for taking action against encroachment of government land the respondents have not taken any action.
3. Comments were called for from and they have submitted their comments denying the allegations.
4. The complainant has submitted rejoinder stating that the encroachment of government land shall to be removed and action has to be taken against PDO who had accorded construction permission in favour of Jayavelu swamiji as a result of which illegal construction has been put up on a land not belonging to the said swamiji or the trust which has further led to encroachment of government land by putting up construction.
5. The replies of respondent Nos.1 and 2 are accepted and proceedings are dropped against them but reply of the respondent No.3 is found not convincing to drop the proceedings, hence, a report u/s 12(3) is sent against respondent No.3 recommending for initiation of disciplinary action.
6. The records show that construction has been put up in property No.197/44 by encroaching government land to the extent of 0.03 ¾th acre in Sy.No.199 of Varamballi Taluk Udupi to be got cleared by taking required steps by the officers of Revenue Department.
7. Hence, this report is made under Section 12(1) of the Karnataka Lokayukta Act, to the competent authority to take steps for removal of encroachment in government land Sy.No.199 by the present occupant of property bearing Sy.No.197/44 on it southern side of Varamablli village in accordance with law.
8. Further, as per Section 12(2) of the Karnataka Lokayukta Act, 1984, the Competent Authority shall intimate the action taken or proposed to be taken on this report.
Copies of connected records are enclosed.”
(JUSTICE SUBASH B ADI) Upalokayukta Karantaka State, Bengaluru 4. In pursuance of the said report of Upa Lokayukta which was accepted by the State Government, a communication was sent by the Principal Secretary, Department of Rural Development and Panchayat Raj to the Chief Executive Officer of Zilla Panchayat, Udupi District vide Annexure-F dated 08.05.2017 to take action in the matter for removal of encroachment and consequently the Chief Executive Officer of Zilla Panchayat, Udupi, sent a communication at Annexure-G dated 01.06.2017 to the Executive Officer of Taluka Panchayat, Udupi, who in turn, directed the Panchayat Development Officer, Varamablli Gram Panchayat to take action and consequently Annexure-K notice dated 12.07.2017 was issued by the concerned Panchayat Development Officer to the petitioner-Trust. The said notice is directed to the petitioner-Trust to remove the encroachment within 7 days, failing which, the same shall be removed at the expense of the petitioner-trust.
5. Aggrieved by the same, the petitioner has approached this Court by way of writ petition.
6. Learned Counsel for the petitioner urged before the Court that not only the report of Upa Lokayukta was accepted by the State Government, without any notice to the petitioner, the respondent – Panchayath Development Officer has also issued impugned notice for removal of alleged encroachment without giving any opportunity of hearing to the petitioner-Trust.
7. Having heard the learned Counsel for the petitioner-Trust, this Court is satisfied that the petitioner- Trust had ample opportunity to rebut and controvert the allegations against the petitioner-Trust that it had not encroached upon the land of the Government of Sy.No.199. The finding of the learned Upa Lokayukta is that the site measuring only 2.75 cents, approximately 1200 square feet in Sy.No.197/44 was allotted by the Government to one Thimma Poojari for construction of a house, for which, the said Thimma Poojari is said to have entered into an Agreement with the petitioner-Trust vide Annexure-A dated 30.01.2009 which clearly shows that the said site does not cover the land of Sy.No.199 which is a Government land. The construction permission was also given only for 900 square feet, but the Temple Trust has constructed on more than double of the area of construction permitted, namely, to an extent of 1930.50 square feet which resulted in the encroachment of Government Land in the adjacent to Sy.No.199 of Varamballi Village, Udupi Taluk and District, to the extent of 0.033/4 Acre of the land and consequently the learned Upa-Lokayukta had provided an opportunity to the petitioner-Trust as well, which fact is not disputed by the learned Counsel for the petitioner.
8. Once it is found that there was an encroachment of public land by the petitioner-Trust and the same was required to be removed in accordance with law, the consequential action taken by the learned Panchayat Development Officer is not a fresh proceedings which can be said to have been initiated or taken without any prior opportunity of hearing to the petitioner. The petitioner- Trust in fact was aware of the proceedings al-through right from the commencement of the proceedings before the Upa-Lokayukta. There is no controverting material placed on record which could even prima facie satisfy this Court that the petitioner-Trust has not encroached upon the Government land of Sy.No.199.
9. Thus, the petitioner-Trust, does not seems to have any legal right or equity in favour of it, if the encroachment of Government land is now sought to be removed by the concerned Panchayat Development Officer in discharge of his public duty.
The petition is therefore found to be devoid of merit and the same is liable to be dismissed. The same is accordingly dismissed. No costs.
Sd/- JUDGE *bgn/-