IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA WRIT PETITION NOS.2886-2902 OF 2017(GM-RES) BETWEEN:
1. SRI. VISVESHWARA UPADYAYA S/O. K. SUBRAMANYA UPADYAYA, AGED ABOUT 55 YEARS, RESIDING AT NO.83, CLASSIC ORCHARDS LAYOUT, BEHIND MEENAKSHI TEMPLE, B.G. ROAD, BENGALURU-560 076.
2. SMT. PALLAVI KELAGERI W/O. RAVI KELEGERI, AGED ABOUT 35 YEARS, RESIDING AT NO.36, CLASSIC ORCHARDS LAYOUT, BEHIND MEENAKSHI TEMPLE, B.G. ROAD, BENGALURU-560 076.
3. SRI. SRINIVAS RAO S/O. SAMBASIVA RAO, AGED ABOUT 45 YEARS, RESIDING AT NO.172, CLASSIC ORCHARDS LAYOUT, BEHIND MEENAKSHI TEMPLE, B.G. ROAD, BENGALURU-560 076.
4. SRI. CHANDRAKANTH DESAI S/O. JEEBALARAO DESAI, AGED ABOUT 50 YEARS, RESIDING AT NO.172, CLASSIC ORCHARDS LAYOUT, BEHIND MEENAKSHI TEMPLE, B.G. ROAD, BENGALURU-560 076.
5. SRI. VINAYAKA RAJANAHALLY S/O. BHIMANAND, AGED ABOUT 48 YEARS, RESIDING AT NO.97, CLASSIC ORCHARDS LAYOUT, BEHIND MEENAKSHI TEMPLE, B.G. ROAD, BENGALURU-560 076.
6. SRI. SUBBU HEGDE S/O. MAHABALESHWARA HEGDE, AGED ABOUT 60 YEARS, RESIDING AT NO.216, CLASSIC ORCHARDS LAYOUT, BEHIND MEENAKSHI TEMPLE, B.G. ROAD, BENGALURU-560 076.
7. SMT. VANDANA RAGHUNATH W/O. RAGHUNATH.D, AGED ABOUT 51 YEARS, RESIDING AT NO.8/A, CLASSIC ORCHARDS LAYOUT, BEHIND MEENAKSHI TEMPLE, B.G. ROAD, BENGALURU-560 076.
8. SMT. CHANDRIKA VINAYAK W/O. VINAYAK RAJANAHALLY, AGED ABOUT 37 YEARS, RESIDING AT NO.97, 1ST PHASE CLASSIC ORCHARDS LAYOUT, BEHIND MEENAKSHI TEMPLE, B.G. ROAD, BENGALURU-560 076.
9. SMT. AMITHA W/O. DEEPAK NARAYAN HOSHING, AGED ABOUT 37 YEARS, RESIDING AT NO.206, 1ST PHASE CLASSIC ORCHARDS LAYOUT, BEHIND MEENAKSHI TEMPLE, B.G. ROAD, BENGALURU-560 076.
10. SRI. RAVI KELAGERI S/O. GUNDAPPA, AGED ABOUT 48 YEARS, RESIDING AT NO.136, 2ND PHASE CLASSIC ORCHARDS LAYOUT, BEHIND MEENAKSHI TEMPLE, B.G. ROAD, BENGALURU-560 076.
11. SMT. JYOTHI SAVADATTI W/O. MANOJ KUMAR SAVADATTI, AGED ABOUT 49 YEARS, RESIDING AT NO.130, 2ND PHASE CLASSIC ORCHARDS LAYOUT, BEHIND MEENAKSHI TEMPLE, B.G. ROAD, BENGALURU-560 076.
12. SMT. SUJATHA RAJU W/O. N. VENKATARAMA RAJU, AGED ABOUT 42 YEARS, RESIDING AT NO.82, CLASSIC ORCHARDS LAYOUT, BEHIND MEENAKSHI TEMPLE, B.G. ROAD, BENGALURU-560 076.
13. SRI. SUDARSHAN RAO S/O. K. RAMACHANDRA RAO, AGED ABOUT 65 YEARS, RESIDING AT NO.174A, CLASSIC ORCHARDS LAYOUT, BEHIND MEENAKSHI TEMPLE, B.G. ROAD, BENGALURU-560 076.
14. SRI. NARASIMHA KARANTH S/O. NARASIMHA KARANTH, AGED ABOUT 70 YEARS, RESIDING AT NO.70, CLASSIC ORCHARDS LAYOUT, BEHIND MEENAKSHI TEMPLE, B.G. ROAD, BENGALURU-560 076.
15. PRAVEEN CHANDRA BOLAR S/O. SACHENDRANATH BOLAR, AGED ABOUT 45 YEARS, RESIDING AT NO.12A, CLASSIC ORCHARDS LAYOUT, BEHIND MEENAKSHI TEMPLE, B.G. ROAD, BENGALURU-560 076.
16. LATHA PRAVEEN S/O. PRAVINCHANDRA BOLAR, AGED ABOUT 52 YEARS, RESIDING AT NO.12A, CLASSIC ORCHARDS LAYOUT, BEHIND MEENAKSHI TEMPLE, B.G. ROAD, BENGALURU-560 076.
17. SUNIL DATTATREYA SHELAR S/O. DATTATREYA GANGARAM SHELAR, AGED ABOUT 57 YEARS, RESIDING AT NO.96, CLASSIC ORCHARDS LAYOUT, BEHIND MEENAKSHI TEMPLE, B.G. ROAD, BENGALURU-560 076.
... PETITIONERS (BY SRI: B.V. ACHARYA SENIOR ADVOCATE A/W SRI: H. SRINIVAS RAO, ADVOCATE) AND 1. STATE OF KARNATAKA REP. BY HULIMAVU POLICE STATION, HULIMAVU, BANGALORE-560 076.
2. B. P. PARAMESH AGED ABOUT 55 YEARS, ASSISTANT ENGINEER, ANJANAPURA SUB DIVISION, BBMP OFFICE, RBI LAYOUT, BANGALORE-560 078.
... RESPONDENTS (BY SRI: VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R1; R2-SERVED AND UNREPRESENTED) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA READ WITH SECTION 482 OF CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO QUASH THE CHARGE SHEET FILED IN CC NO.26734/2016 ON THE FILE OF THE V ADDITIONAL CHIEF METROPOLITAN MAGISTRATE AT BANGALORE, AGAINST THE PETITIONERS FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 143, 147, 341, 353, 504 READ WITH SECTION 149 OF INDIAN PENALCODE AT ANNEXURE-A THESE WRIT PETITIONS ARE COMING ON FOR HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
COMMON ORDER In this batch of petitions, petitioners claim to be the owners of respective sites in the layout formed by the developer by name “M/s.Amalgamated Property Developers”. A charge sheet came to be laid against the petitioners alleging that on 7.10.2015 when BBMP officials were involved in opening the gates erected at the said Layout, namely, Classic Orchards Layout, petitioners herein obstructed the public servants from discharging their duties and also abused and used criminal force against the public servants.
2. Learned Senior counsel appearing for the petitioners has drawn my attention to the complaint filed by the Assistant Engineer, BBMP wherein it is stated that on the date of the incident, the Assistant Engineer along with his team had been to Classic Orchards Layout Association pursuant to the order passed by this Court in W.P.Nos.56798/2014 & 56867-69/2014 (BDA) in order to open the gates so as to make it accessible to the general public. The petitioners herein are alleged to have formed themselves into an unlawful assembly and obstructed the complainant as well as other public servants from discharging their lawful duties.
3. Learned counsel has referred to the orders passed by this Court in W.P.Nos.56798/2014 & 56867-69/14 dt.28.9.2015, the relevant portion at paragraph No.2 thereof reads as under :-
“Learned Counsel for the petitioners files a memo stating that the Bangalore Development Authority- respondent No.2 has since considered the petitioners’ representations and issued endorsement dated 04.02.2015, therefore, the first relief does not survive for consideration. Learned counsel further submits that, second relief is consequential and therefore, seeks leave of the Court to withdraw the writ petitions with liberty to challenge the endorsement, if aggrieved before a competent Court of law.”
4. As is evident from the above order, this Court has not passed any orders permitting BBMP Official to open the gates erected at the said layout as contended in the FIR. Under the said circumstance, the very act of the complainant in resorting to demolish the gates erected by the Association being illegal and without authority of law cannot claim protection under official duties. That apart, the order passed by this Court in W.P.Nos.9882 & 10341-355/2014 (BDA) dated 5.11.2014 indicates that there was a dispute between petitioners viz. members of the Classic Orchards Property Owners Association and the erstwhile Developer viz. the Amalgamated Property Developers regarding the right of user of the roads formed in the layout. These orders demonstrate that after selling the plots developed in the said layout, the Developer made an attempt to create a right of access to the general public to make use of the road formed in the layout and the same was resisted by the members of the Classic orchards Property Owners Association and in that background, this Court in its order dated 5.11.2014 in W.P.Nos.9882 & 10341-355/2014 (BDA) at paragraphs 2 to 4 has observed as under :-
“2. It appears, the property was developed by the 3rd respondent as a developer by obtaining plan sanction from Gottigere Village Panchayath dated 13.5.1994. The members of the 1st petitioner have purchased the sites from the developer. The grievance of the petitioners is that the area reserved for civic amenity has to handed over to the BDA as per the rules. Accordingly, they have sought for the above said relief.
3. The learned counsel appearing for 3rd respondent submitted that he had already relinquished the land in favour of BBMP. The stand of the 2nd respondent-BDA is that without the knowledge and consent of the BDA, such action has been taken by the 3rd respondent. Actually the BDA has to exercise its right and to take over the area earmarked for civic amenity and maintain the same. It is also submitted that neither the 3rd respondent nor anybody approached the 2nd respondent seeking for approval of plan as well as extending any other benefits. Accordingly, it is submitted that question of compliance of directions may not arise.
4. So far as the development of the property is concerned, whether such property falls within the corporation limits or forms part of the BDA has to be examined. In the event property falls within the BDA limits, then necessarily the BDA has to verify and consider it for taking over possession and maintenance of civic amenity. If the property falls within the corporation limit, then after verification, it is for the corporation to take this responsibility and to do the needful. Before that, it is for the BDA to examine whether the property falls within the jurisdiction of BDA or corporation and thereafter, the grievance of the petitioners could be met if it is legal, otherwise, BDA would take appropriate action in accordance with law”.
6. Narration of facts noted in the above said order clearly indicate that neither the High Court nor any other Courts have passed any order empowering the BBMP officials to demolish the gates and to allow third party to make use of the road formed in the layout. Under the said circumstances, if for any reason the members of the Association have offered resistance to the unlawful acts of the complainant and B.B.M.P. officials, the same is within the legal rights of the petitioners to protect their interest and right over the properties. These acts, in my considered opinion, cannot give rise to any criminal offence as sought to be made out in the complaint.
7. Charge sheet has been laid against the petitioners, under Sections 143, 147, 341, 353, 504 r/w.149 of Indian Penal Code based on the above allegations. Undeniably, petitioners being the members of the Association are legally entitled to make use of the Association properties. The allegations made in the complaint therefore do not make out the offences under Sections 143, 147 or 341 of Indian Penal Code insofar as the petitioners are concerned. The complainant and the officials of the BBMP having resorted to unlawful acts in the properties of the petitioners, even Section 353 of IPC is not applicable to the facts of this case. The material on record clearly indicate that no order was passed authorizing the BBMP officials to open the gates or to allow any strangers to pass through the lands of the Association. In the said circumstance, it cannot be said that the complainant or the other public servants were engaged in any lawful public duty at the time of occurrence. In that view of the matter, ingredients of Sections 353 and 504 of the Code are also not attracted to the facts of the case. On the other hand, the circumstance discussed above would go to show that the BBMP officials as well as the police have yielded to the influence of the Developer and resorted to use force against the members of the Association under the guise of implementing the orders of the Court which did not exist. Thus, on consideration of all the above facts and circumstances, I am of the view that the proceedings initiated against the petitioners are malafide, illegal and amount to abuse of process of law. Therefore, the petitions deserve to be allowed.
Accordingly, the petitions are allowed. The proceedings pending against the petitioners in C.C.No.26734/2016 on the file of V Additional Chief Metropolitan Magistrate, Bengaluru, are quashed.
It is made clear that the observations made in this order are confined to the contentions raised in the petitions and the same shall not to be considered in any civil or other proceedings pending between the parties.
Sd/- JUDGE rs