IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.25075/2016 (BDA) BETWEEN Sri. K. Manjunath S/o. Late Sri. R. K. Murthy Aged about 57 years No.603, “Sri Sai Nilaya” Sri Sai Baba Road 30th Main, 1st Cross Banagirinagar Bangalore – 560085. ... Petitioner (By Sri. K. N. Phanindra, Sr. Adv. for Smt. Vaishali Hegde, Adv.) AND Bangalore Development Authority Rep. by its Assistant Executive Engineer No.3, South Sub- Division Banashankari 2nd Stage Bangalore – 560070. ... Respondent (By Sri. K. Krishna, Adv.) This writ petition is filed under Article 226 of Constitution of India praying to quash the notice dated 15.04.2016 vide Annexure- A issued by the respondent and all further proceedings / actions thereto and etc.
This writ petition coming on for Preliminary Hearing in ‘B’ Group this day, the Court made the following:
ORDER Petitioner has a short grievance against the impugned notice dated 15.04.2016 at Annexure-A which reads as under:
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2. The petitioner grieves that the intended content of this notice pose a potential threat to his settled occupation of the structure erected by him on the subject site and that the respondent-BDA and its officials are not justified doing the same, when he has acquired the property in question by a registered conveyance dated 22.02.2006 at Annexure-B and all the Property Records reflect him to be the owner thereof.
3. After service of notice, respondent-BDA having appeared through its learned Panel Counsel Sri. K. Krishna has filed the Statement of Objections resisting the petition.
4. Learned Senior Advocate Sri. K. N. Phanindra, appearing for the counsel on record for the petitioner submits that the petitioner has been in the settled occupation of the site on which he has built the structure; his ownership and possession are vouched by the registered sale deed of 2006 followed by Katha Certificate, uttara pathra and tax paid receipts; it has long been the settled position of law that in a State which is governed by the Rule of Law a statutory authority like the BDA cannot dispossess even a trespasser in settled occupation; the impugned notice coupled with the stand of the BDA in the Statement of Objections make out a prima-facie case of unauthorized interference warranting indulgence of writ Court to protect the poor citizen. He banks upon the Apex Court decision in the case of MEGHMALA AND OTHERS VS., G. NARASIMHA REDDY AND OTHERS REPORTED IN (2010) 8 SCC 383.
5. The learned Senior Panel Counsel for the respondent-BDA opposes the petition prayers stating that the entire property in which the suit site is situate was acquired by it in the land acquisition that culminated into a final award dated 12.12.1977; the BDA being the absolute owner of the said site, the version of the petitioner that he is the title holder to the same is apparently inadmissible inasmuch as the conveyance under which he claims to have acquired the property is of 2006 and thus the vendor had no title and therefore it is a case of nemo dat quod non habet; that being so the petitioner is liable to be non suited.
6. I have heard the learned Senior Advocate for the petitioner and the learned Senior Panel Counsel for respondent-BDA. I have perused the petition papers and the Statement of Objections. I have read relevant paragraphs of the ruling of the Apex Court in Megamala’ case (supra).
7. The petitioner has produced a registered sale deed dated 22.02.2006 at Annexure-B, Uttara Patra dated 17.03.2006 issued by the BBMP at Annexure-B1 and Khatha Certificate dated 03.12.2012 at Annexure-C which specifically mention his name as being the owner of the property in question. Annexure-E and E1 are the original photographs which prima-facie show that a small shed does exist in the said site. Petitioner has also produced the title deeds of his predecessors in interest. All these prima-facie establish t least one fact that the petitioner gained entry to the property in question years ago; he has put up a small structure and that he has been in a settled occupation thereof with some semblance of rights.
8 The text and context of the impugned notice coupled with the stand of the respondent-BDA in its pleadings prima-facie justify the formation of a considered opinion that there is a potential threat of dispossession of the petitioner from the property in question by the respondent- BDA and its officials, which appears to be the lawful owner of the same having acquired it decades ago. Be that as it may, settled legal position is that even a trespasser in the settled possession of the property cannot be thrown out by the State or its instrumentalities except by a course of action in accordance with law. The removal of such trespassers by extra judicial methods strikes at the law, reason and justice.
9. The Division Bench of this Court in the case of M/S. PATIL EXHIBITORS (PVT) LTD. VS. THE CORPORATION OF THE CITY OF BANGALORE reported in ILR 1985 KAR 3700 has observed as under:
“10. The second aspect is this. It is part of the concept of “Rule of Law” that no claim to a right to dispossess by the use of force without recourse to procedure in accordance with law is recognized or countenanced by Courts. Such a right in the Respondent cannot be recognized regardless of the question whether or not the appellant itself has any subsisting right to remain in possession. the protection that the Court affords is not of the possession – which in the circumstances is litigious possession and cannot be equated with lawful possession – but a protection against forcible dispossession. The basis of relief is a corollary of the principle that even with the best of title there can be no forcible dispossession.”
10. The Apex Court in the aforesaid Meghmala’s case, at paragraph Nos.46 to 48 has observed as under:
“46. Even a trespasser cannot be evicted forcibly. Thus a person in illegal occupation of the land has to be evicted following the procedure prescribed under the law. Xxxxxxxx 47. In Nagar Palika, Jind v. Jagat Singh this Court observed that Section 6 of the Specific Relief Act, 1963 is based on the principle that even a trespasser is entitled to protect his possession except against the true owner and purports to protect a person in possession from being dispossessed except in due process of law.
48. Even the State Authorities cannot dispossess a person by an executive order. The authorities cannot become the law unto themselves. It would be in violation of the rule of law. The Government can resume possession only in a manner known to or recognized by law and not otherwise. xxxxxxxx”
(only such portion of the paragraphs as are relevant to the fact matrix of the case are quoted, others being left out) 11. In the above circumstances, this writ petition succeeds in part; a writ of mandamus issues restraining the respondent-BDA and its officials from forcibly dispossessing the petitioner except in accordance with law.
12. This judgment shall not come in the way of the respondent-BDA taking of appropriate proceedings under the provisions of the Karnataka Public Premises (Eviction of Unauthorized Occupants) Act, 1974 or such other course before appropriate forum, in accordance with law.
Sd/- JUDGE SN