IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE G.NARENDAR WRIT PETITION Nos.2957-2962/2015 (LB-RES) BETWEEN 1. SRI.CHANDRAHASA S/O AMMU MADIVALA AGED ABOUT 41 YEARS, R/AT “PERUVAI SHARADA NIALAYA” NEAR P H C, PERUVAI POST BANTWAL TALUK 574260 D K DISTRICT 2. SRI K MUSTAFA S/O ABBU @ MIDU KUNHI AGED ABOUT 58 YEARS, RESIDING AT KALLANDADKA HOUSE, KULA POST, BANTWAL TALUK-574220 D K DISTTRICT 3. SRI MOHAMMED KUNHI S/O IBRAHIM AGED ABOUT 53 YEARS, RESIDING AT KALLANDADKA HOUSE, KULA POST, BANTWAL TALUK-574220 D K DISTRICT 4. SRI SULAIMAN S/O ISMAIL HAJI AGED ABOUT 53 YEARS, RESIDING AT VITTAL MEGINA PETE POST VITTLA, PUTTUR TALUK-574243 5. SRI SATHISH S/O KESHAVA NAIKA AGED ABOUT 27 YEARS, RESIDING AT VIDYAPURA HOUSE, POST KABAKA, PUTTUR TALUK, D K DISTRICT-574220 6. SRI BADRUDDIN S/O IDDI KUNHI AGED ABOUT 28 YEARS, RESIDING AT POOLYA HOUSE POST KABAKA, PUTTUR TALUK, D K DISTRICT-574220 ... PETITIONERS (BY SRI RANJAN KUMAR K, ADV.) AND 1. STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY DEPARTMENT OF RURAL DEVELOPMENT AND PANCHAYATH RAJ M S BUILDING, BANGALORE-560001 2. THE CHIEF EXECUTIVE OFFICER TALUK PANCHAYATH PUTTUR, D K DISTRICT 574201 3. THE PANCHAYATH DEVELOPMENT OFFICER GRAMA PANCHAYATH KABAKA, KABAKA POST & VILLAGE, PUTTUR TALUK D K DISTRICT-574220 ... RESPONDENTS (BY SRI KIRAN KUMAR T.L, AGA FOR R1, SRI HAREESH BHANDARY, ADV. FOR SRI S.VISHWAJITH SHETTY, ADV. FOR R3, R2 – SERVED.) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER / RESOLUTION DATED 25.4.2012 PASSED BY THE R-3 IN DECISION NO. 5/2012-13 TO CLEAR THE UNAUTHORIZED BUILDING BY THE SIDE OF THE MANGALORE PUTTUR STATE HIGHWAY IN SY.NO. 23 OF KABAKA VILLAGE VIDE ANN-F.
THESE WRIT PETITIONS COMING ON FOR ‘ORDERS’ THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard the learned counsel for the petitioners, learned AGA for respondent No.1 and learned counsel for respondent No.3.
2. It is the case of the petitioners that they are in rightful occupation and possession of certain lands abutting to the State Highway and that they have been carrying on business after obtaining appropriate license from respondent No.3-Panchayat and that despite the same, respondent No.3 has passed a resolution to remove the structure put up by the petitioners and that the said resolution is actuated by a malafide intention and some of the members of the Panchayat having putting up commercial complex opposite to the land of the petitioners, the resolution came to be passed as the business of the petitioners detracted from the development of the said commercial complex.
3. Be that as it may, it is fairly admitted that the land in occupation of the petitioners is a Government Land and the same measures about 31 cents. If that is so, then the provisions of Section 72 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (hereinafter referred to as ‘the Act’ for short) comes into play as the same empowers the Panchayat to remove such obstructions and encroachments upon the public street and sites.
4. In the instant case, it is seen that the action has been initiated solely on the resolution passed by the Panchayat. No opportunity appears to have been afforded to the petitioners. Further, the respondent-Panchayat does not appear to have taken steps to measure the area earmarked. If that be so, then ends of justice would require that the petitioners be heard in the matter and thereafter, the Panchayat ought to arrive at a conclusion that the petitioners have indeed caused obstructions or encroachments in terms of Section 72 of the Act and after arriving at such conclusion, it would be open for the Panchayat to take steps in accordance with the statute more particularly Section 72 of the Act. Hence, it is appropriate to direct a joint survey and measurement of the property prior to the Panchayat- respondent No.3 arriving at a conclusion that the petitioners are guilty of encroachments and obstructions as per sub- section 1 of section 72 of the Act. Thereafter, the opportunity of hearing ought to be accorded to the parties.
5. The Tahsildar, Puttur along with the ADLR, Puttur shall carry out the survey and demarcation of the area alleged to have been encroached. The petitioners and respondent No.3 shall be present at the spot on 03.08.2019. The Tahsildar, Puttur along with ADLR, Puttur shall conduct the survey and measurement work on 03.08.2019. Parties to be present at the spot by 10.00 a.m. without awaiting any notice from the Tahsildar with regard to the survey work.
It is clarified that the respondents shall not initiate any precipitate action till completion of the survey work.
Accordingly, the petitions stand disposed of in the above terms.
Sd/- JUDGE VM CT:HR