IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF APRIL 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION No.4644/2018(KLR-RES) BETWEEN THIMAMMA W/O MAYANNA (LATE) AGED ABOUT 62 YEARS, R/AT SRIRAMPURA VILLAGE, KASABA HOBLI, MYSORE TALUK, MYSORE – 570 001. ... PETITIONER (BY SRI B K MOHAN, ADVOCATE ) AND 1. DEPUTY COMMISSIONER MYSORE DISTRICT, MYSORE - 570 001.
2. THASILDAR MYSORE TALUK, MYSORE -570 001. ... RESPONDENTS (BY SRI VENKATESH DODDERI, ADDITIONAL GOVERNMENT ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED:17.11.2017 PASSED BY THE KARNATAKA APPELLATE TRIBUNAL IN APPEAL NO.283/2011 WHICH CONFIRMED THE ORDER PASSED BY THE 2ND RESPONDENT VIDE ANNEXURE-B AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner has sought for quashing of the order dated 17.11.2017 (Annexure ‘B’ to the petition) passed by the Karnataka Appellate Tribunal, Bengaluru, in Appeal No.283/2011 (Revenue), wherein the order dated 26.03.2011 (Annexure ‘A’ to the petition) passed by the first respondent – Deputy Commissioner, Mysuru District, Mysuru, in proceedings No.L.N.D.(1)C.R.719/2010-11 has been confirmed.
2. The petitioner herein is widow of one Mayanna.
According to her, her father-in-law, Basavaiah, had purchased land measuring to an extent of 01 Acre 16 guntas in Sy. No.73 of Srirampura village, kasaba hobli, Mysuru Taluk and District, under registered sale deed dated 04.03.1942. The said land was initially in possession and enjoyment of Basavaiah during his lifetime and after his death, his son, Mayanna, was in possession and enjoyment of the said land and after the death of Mayanna, the petitioner has been in possession of the said property. It is stated that the petitioner to eke out her living, got constructed shops in the said property after obtaining approval of the building plan.
3. The records would indicate that Mysuru City Survey planning officer has addressed communication dated 25.02.2011 to the Deputy Commissioner bringing to his notice that the petitioner herein and eight other persons had encroached on a portion of public road available in front of their respective property in Sy. No.73 and requested him to identify the extent of the said encroachment and take appropriate action in the matter. Based on the said communication, proceedings in No.LND(1)CR.719/2010-11 were initiated before the first respondent - Deputy Commissioner not only against the petitioner herein, who was arrayed as respondent No.7 in the said proceedings, but against eight other persons mentioned in the table stated at page No.2 of the order dated 26.03.2011 (Annexure ‘A’ to the petition). In column No.3 of the said table with reference to Smt. Thimmamma (petitioner herein), it is indicated that she has encroached to an extent of 136 square meters into Government land forming portion of public road while putting up commercial building on her property. It is seen that similar allegation is made against eight other persons that they have encroached various extents of Government land forming portion of public road.
4. In the said proceedings before the first respondent, petitioner and eight other persons were issued show cause notice under Sections 39, 67(2), 94(3) and (4) of the Karnataka Land Revenue Act, 1964 (hereinafter referred to as ‘the K.L.R. Act’) calling upon them to hand over the respective portion/s of the land encroached by them to Tahasildar within 15 days from the date of receipt of the said notice, failing which, they were intimated that criminal case would be registered against them under Section 192-A of the Act. In response to the said notice, the petitioner herein gave her reply stating that her father-in-law, Sri Basavaiah, had purchased the land measuring to an extent of 01 Acre 16 guntas in Sy. No.73 in the year 1945 and if there was any encroachment by herself and her family members, she would remove the same at her own cost. She has also referred to the suit filed by her against Tahasildar before the Civil Court and stated that temporary injunction was granted in her favour in the said suit.
5. The Deputy Commissioner after considering the material on record, passed an order on 26.03.2011 (Annexure ‘A’ to the petition) holding that the respondents therein including Smt. Thimmamma (petitioner herein) had encroached into Government land forming portion of public road and directed the Tahasildar of Mysuru Taluk, to remove the encroachment committed by the petitioner herein and either others in accordance with the provisions of Section 39 of the K.L.R Act and after taking into consideration the orders passed by other Courts in respect of removal of the said encroachment. Further, Tahasildar was directed to initiate legal proceedings under Section 192-A of the K.L.R. Act against the respondents therein and other persons if it was found that they without holding valid title to the property, had sold the same to third parties by playing fraud. While doing so, the Deputy Commissioner directed Tahasildar, Mysuru as well as Deputy Director of Land Records, Mysuru, to identify if any other person/s had committed encroachment in the area within the vicinity of the aforesaid land and to submit a report in that behalf.
6. The said order of Deputy Commissioner – respondent No.1 herein was the subject matter of challenge in Appeal No.283/2011 (Revenue) before the Karnataka Appellate Tribunal (for short, ‘the K.A.T’). The said appeal filed by the petitioner herein has been dismissed by K.A.T., by judgment dated 17.11.2017 (Annexure ‘B’ to the petition). As against the concurrent finding of both the first respondent and the K.A.T., the present writ petition is filed seeking quashing of the same.
7. Heard the learned counsel for the petitioner as well as learned counsel for contesting respondents represented by learned Additional Government Advocate. On going through the material available on record, it is clearly seen that though the petitioner is said to be owner of 01 Acre 16 guntas of land in Sy. No.73 of Srirampura village, kasaba hobli, Mysuru Taluk, besides the petitioner, Smt.Thimmamma, eight other persons are said to have encroached into some portion of the Government land, where public road is formed in front of their respective property. The said encroachment was brought to the notice of the first respondent by Mysuru City Survey Planning Officer and in that regard, the Deputy Commissioner has initiated proceedings in No.LND(1).CR.719/2010-11 against nine persons including the petitioner herein and the said proceedings has culminated in an order being passed on 26.03.2011. When the same is looked into, it is clearly seen that the Deputy Commissioner has rightly passed the order in directing Tahasildar to take necessary steps for removal of encroachment into Government land, which is forming part of the public road as the said encroachment would deprive the use of the said land by the general public. The said order of respondent No.1 – Deputy Commissioner was impugned in appeal No.283/2011 (Revenue) by the petitioner herein before the K.A.T. The K.A.T., after considering the contentions of the parties, framed appropriate points for consideration and considering the material available on record, has rightly upheld the order of the Deputy Commissioner. This Court find that no justifiable grounds are made out by the petitioner to interfere with the impugned orders.
8. Accordingly, this Writ Petition is dismissed.
9. Learned Additional Government Advocate is directed to file memo of appearance within two weeks from today.
Sd/- JUDGE sma