1/11 IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 15TH DAY OF DECEMBER, 2017 BEFORE THE HON'BLE Dr.JUSTICE VINEET KOTHARI WRIT PETITION No.52927/2017 (LB-RES) Between:
Sri. V. Purushotham S/o Venkatesh Murthy Aged about 35 years Behind Venkateshwara Temple Vidya Nagar, Kadur Town Kadur Taluk Chikkamagaluru District-577478.
(By Mr. BhaskarbBabu H.J, Advocate) And:
1. The Chief Officer Town Municipality, Kadur Chikkamagaluru Dist-577548.
2. The Deputy Commissioner Chikkamagaluru Dist Chikkamagaluru District-577 748.
3. The Deputy Commissioner of Excise Chikkamagaluru Dist Chikkamagaluru District-577748.
**** …Petitioner …. Respondents This Writ Petition is filed under Articles 226 & 227 of the Constitution of India, praying to call for the entire records from 1st respondent pertaining to Annexure-A endorsement dated 21/10/2017 bearing No.KAA.PU/UU.PA/C.R./56/2017-18 & etc., This Writ Petition coming on for Preliminary Hearing this day, the Court made the following:-
O R D E R Mr. Bhaskar Babu H.J, Advocate for Petitioner 1. Mr. V. Purushotham, S/o. Venkatesh Murthy has filed this petition in this Court on 20/11/2017 with the following prayers:
“(a) Call for the entire records from 1st respondent pertaining to ANNEXURE A endorsement dated 21/10/2017 bearing No.KAA.PU/UU.PA/ C.R/56/2017-18;
(b) Call for the entire records from 2nd respondent pertaining to ANNEXURE B endorsement dated 01/07/2016 bearing No.EXE/KDR/CL7/190/2015-16;
(c) Set aside ANNEXURE A endorsement dated 21/10/2017 bearing No.KAA.PU/UU.PA/C.R/56/17-18 issued by Respondent No.1;
(d) Set aside ANNEXURE B endorsement dated 01/07/2016 bearing No.EXE/KDR/ CL7/190/2015-16;
(e) Direct the 1st respondent to renew the trade licence of the petitioner in respect of the subject matter building from the year 2016-17 and 2017-18;
(f) Direct the 2nd respondent to renew liquor vending licence under FORM – CL-7 of the petitioner from the year 2016-17 and 2017-18.”
2. In the impugned Endorsement, Annexure A dated 21/10/2017, the Respondent – Chief Officer, Town Municipal Council, Kadur has rejected the Application of the petitioner for renewal of the Trade Licence for carrying on the business of a Lodging House of the petitioner on the ground that the Building of the petitioner has been constructed encroaching upon the National High Way No.206 and an order has been issued against the petitioner to evict him from the encroached portion of Building and in that regard a Notice is also issued to him and therefore subject to pendency of those proceedings, the Trade Licence in question cannot be renewed and issued to the petitioner.
3. The learned counsel for the petitioner has vehemently submitted before the Court that in pursuance of the directions given by this Court in earlier Writ Petition No.37932/2016(V. Purushotam Vs. The Excise Commissioner in Karnataka and others), a learned Single Judge of this Court had directed on 03/08/2016 vide Annexure X that the request of the petitioner for grant of renewal of CL-7 licence under the Karnataka Excise Act, 1965, cannot be granted and thereafter, an additional submission was also made regarding the Trade Licence to be granted by the Chief Officer of the TMC.
4. The learned Single Judge observed in para.2 of the said order dated 03.08.2016 that if the said Application is pending and not yet disposed of, the Chief Officer of TMC shall consider the same and pass appropriate orders within a period of two weeks.
5. The learned counsel for the petitioner has also brought to the notice of the Court that another person, Mr.H.L Shekarappa with whom the present petitioner, Mr.V. Purushotham had jointly developed the land belonging to both of these persons and had jointly constructed the Building in which the said business of Lodging House was being run in the name and style of M/s. SAI COMFORTS, the TMC had already been granted the Trade Licence, by the same Chief Officer, Town Municipal Council, Kadur vide Annexure AA on 12/05/2017 for the period 12/05/2017 to 31/03/2018 and therefore, the petitioner was also equally entitled to such renewal of his Trade Licence for the part of the Building in which, the petitioner carried business of Lodging House.
6. The learned counsel for the petitioner also showed the Site photographs of the Building in question and submitted that there is no encroachment of National Highway No.206 by the petitioner and therefore the Trade Licence in question deserved to be renewed and the learned Chief Officer of the Town Municipal Council has wrongly refused to do the same in the aforesaid circumstances.
7. Upon the Court query about eviction order or notice given to him on the purported ground of encroachment of the National Highway No.206 as mentioned in the impugned Endorsement Annexure A dated 21/10/2017 on the basis of which the Respondent Chief Officer, Town Municipal Council, Kadur, has refused to renew the Trade Licence in favour of the petitioner, the learned counsel for the petitioner was unable to produce any such document before this Court. On the other hand, he submitted that such a notice was not issued to him.
8. The learned counsel for the petitioner also brought to the notice of the Court that previously issued Trade licence to the petitioner up to the period of 31/07/2016 are produced as Annexure Q to R to the writ petition.
9. Having heard the learned counsel for the petitioner, this Court is satisfied with the reason assigned by the Respondent - Chief Officer, Town Municipal Council, Kadur, for not renewing the Trade Licence of the petitioner for the current year 2017-18, cannot be said to be an unsustainable reason. While on the one hand, the Chief Officer, Town Municipal Council, Kadur intended to take action against the petitioner for the alleged encroachment by the building raised by the petitioner, may be along with another person Mr. H.L Shekarappa, is said to be encroaching upon the length and width of the National Highway 206 and proceedings for evicting the petitioner to that extent is envisaged as stipulated in the said impugned Endorsement Annexure A dated 21/10/2017, this Court cannot mandate the same Officer to renew the Trade licence of the petitioner despite such adverse proceedings envisaged against the petitioner.
10. The fate of such proceedings for the removal of the encroachment of the National Highway 206 land is not even in the present writ petition as the relevant documents have not been placed before the Court or may be those proceedings have not yet culminated against the petitioner so far. But that does not furnish any ground to the petitioner to seek a mandamus direction from this Court against the Respondent-TMC to renew the Trade Licence in question. The two proceedings are apparently at conflict with each other and this Court cannot exercise its mandamus Writ jurisdiction in favour of the petitioner, while the contrary proceedings for the removal of the encroachment and eviction for the purported encroachment of the National High way 206 is envisaged to be taken against him by the Chief Officer, Town Municipal Council, Kadur.
11. It is rather surprising for this Court to find that the Trade Licence has been renewed by the same Officer on 12/05/2017 in favour of Mr. H.L. Shekarappa, who is said to be the adjacent land owner and is even stated to be the joint owner of the Building in question itself.
12. The reason for such renewal in favour of the other person, Mr. H.L. Shekarappa cannot also enure to the benefit of the present petitioner unless the doubt or the cloud over the correct position about encroachment, which is the reason given by the Respondent that the Building in question encroaches upon the land of the National Highway 206 is cleared. Such clearance can be given or decided only in a properly instituted Civil Suit where the exact Title and the boundary of the land owned by the petitioner is established by the petitioner. The photographs showing the black tarred road away from Building cannot establish the fact that the Building does not encroach upon the ‘land’ reserved for National Highway.
13. The present writ petition is therefore disposed of with a liberty to the petitioner to establish his Title and exact boundary of the land in question owned by him in a competent Civil Court and adduce the relevant evidence before the Respondent - Chief Officer himself who can determine the question as to whether there is any encroachment of the National Highway of the petitioner or not and if so, to what extent.
14. If such a material is placed before the Respondent-TMC, the Respondent – Chief Officer is of course expected in law to decide the same by passing a speaking order after providing an opportunity of hearing to the petitioner.
15. Accordingly, the present writ petition stands disposed of. No costs.
Copy of this order be sent to the Respondents forthwith.
Sd/- JUDGE BMV*