S.G. Pandit, J.
1. Aggrieved by the order dated 3.12.2015 passed by the learned Single Judge in Writ Petition Nos.46729 and 48690 - 705 of 2015, by which the petitions were allowed, the respondents therein are in appeal.
2. The petitioner, a Company incorporated under the Companies Act filed writ petition under Articles 226 and 227 of the Constitution of India praying to quash the order bearing No.LND/CR:49/15-16 dated 8.10.2015 and for a direction restraining the 2nd respondent or any person claiming through or under him from encroaching upon the lands in Survey Nos.98, 99/1, 99/2, 100, 101/1, 101/2, 101/3, 101/4, 101/5, 101/6, 101/7, 101/8, 102, 103, 104, 126 and 127 situated in Benniganahally Village, Krishnarajapura Hobli Bangalore. The petitioner states that the lands in the above survey numbers were subject matter of acquisition by the State Government under the Land Acquisition Act, 1894 (for short 'the Act') to an extent of 113 acres for DRDO Complex. The land owners had challenged the acquisition. During the pendency of the proceedings before the Court the State Government de-notified certain lands. The said de-notification was challenged by the Ministry of Defence, in whose favour land was notified for acquisition, by filing writ petitions. The writ petitions came to be dismissed, against the dismissal of the writ petitions the Ministry of Defence filed Writ Appeal Nos.2002-2010 of 2000. The said writ appeals were allowed quashing the de-notifications. The land owners aggrieved by the order passed in the writ appeals, filed appeals before the Hon'ble Apex Court. It is stated that during the pendency of the appeals before the Hon'ble Apex Court, the Ministry of Defence and the land owners entered into a compromise, agreeing to retain 50% of the land and to hand over 50% of the land in one contiguous block to the land owners. Accordingly a joint memo was filed and an order dated 07.04.2004 came to be passed by the Hon'ble Apex Court. Accordingly, land owners got land measuring 12 acres 1 gunta in the above stated survey numbers, which was the subject matter of acquisition. The petitioners made application for conversion and an endorsement dated 24.12.2005 was issued stating that the lands are non-agricultural lands as the lands were acquired for non-agricultural purpose, which has lost agricultural character. Subsequently N.H. Rushthumji, B.S.N. Hari and D. Ravi Shankar acquired title in respect of 12 acres 1 gunta of land. It is stated thereafter they entered into joint development agreement and obtained necessary sanctions and permissions for construction of multi-storeyed residential complex.
3. The petitioner states that after completion of construction of 630 dwelling units, they received a notice dated 06.08.2015 alleging encroachment of Government Land in Survey Numbers 95, 134, 97, 98 and other survey numbers, of Benniganahalli Village, K.R. Puram Hobli and called upon the petitioner to vacate the encroachment. In the said notice, the petitioner was given an opportunity to produce documents and to appear before the Tahsildar. It is stated that the petitioner replied to the said notice enclosing the necessary documents. In its reply the petitioner stated that as per the sanctioned plan, to the western side of survey No.98, 14 feet walking path has been left and denied the alleged encroachment. The Tahsildar by his order dated 08.10.2015 ordered to vacate the encroached portion of the land in survey No.125 to an extent of 0.01 gunta, survey No.126 - 0.02 guntas and survey No.127 - 0.03 guntas and directed registration of the proceedings under Section 192(A) of the Act. Aggrieved by the said order, the petitioner filed the instant writ petitions contending that the impugned order passed by the Tahsildar is contrary to the details mentioned in the notice dated 06.08.2015. It was also contended that the impugned order passed by the Tahsildar is contrary to Section 67 of the Act and no enquiry is conducted before passing the impugned order. The learned Single Judge after hearing the parties to the lis allowed the writ petitions and quashed the order dated 08.10.2015. Further the learned Single Judge observed that if any damage is caused to the immovable property of the petitioner, it is open for the petitioner to institute such legal proceedings as is available in law for recovery of damages as also cost of restoration. The learned Single Judge also permitted the petitioner to erect the compound wall to protect its properties with police protection. Aggrieved by the said order, the State is in appeal contending that the learned Single Judge exceeded his jurisdiction in passing the impugned order and further contended that the petitioner has encroached public property to an extent of 6 guntas.
4. Heard the learned AGA for the appellants and learned Senior counsel for the respondent. Perused the appeal papers.
5. The learned AGA for the appellants contend that the learned Single Judge committed an error in allowing the writ petitions and further exceeded his jurisdiction in observing that petitioner to recover damages if any caused to the immovable property and permitting to erect compound wall to protect its properties with police protection. The learned Single Judge having come to the conclusion that no proper enquiry is held before passing the impugned order ought to have directed the respondents to hold enquiry in accordance with law with regard to the encroachment of 6 guntas of government land by the petitioner.
6. Per contra, the learned Senior Counsel appearing for the respondent herein would support the order of the learned Single Judge contending that the impugned order passed is contrary to the notice dated 06.08.2015. Further it is contended that there was no survey by the Taluka Surveyor with regard to the encroachment and there was no spot inspection. Further the learned Senior Counsel would submit that the impugned action of the respondents therein is violative of principles of natural justice.
7. On the hearing the learned counsels for the parties and on going through the appeal papers, we are of the view, that the order of the learned Single Judge requires interference inasmuch as the learned Single Judge could not have permitted the petitioner to institute legal proceedings for recovery of damages as also cost of restoration, apart from permitting erection of compound wall to protect its properties with police protection. The petitioner claims that they have acquired title over Survey Nos.98, 99/1, 99/2, 100, 101/1, 101/2, 101/3, 101/4, 101/5, 101/6, 101/7, 101/8, 102, 103, 104, 126 and 127 situated at Benniganahalli Village, Krishnarajapuram Hobli and they have developed the land by constructing 630 dwelling units on obtaining necessary permissions from the concerned authorities. The Tahsildar issued notice vide Annexure-G. On going through the notice, it could be seen that the notice is issued in respect of Survey Nos.95, 134, 97, 98, and other survey numbers. When the notice includes specifically mentioned survey numbers as well as other survey numbers, the contention of the petitioner that the impugned order is contrary to the details mentioned in the notice dated 06.08.2015, is liable to be rejected.
8. The learned Single Judge having come to the conclusion that the Deputy Commissioner ought to have conducted enquiry under Section 67 (2) of the Karnataka Land Revenue Act, 1964, (for short 'the KLR Act') after following the principles of natural justice and having come to the conclusion that Tahsildar had no jurisdiction, ought to have directed the competent authority to hold enquiry with regard to alleged encroachment, but could not have permitted the petitioner to claim damages and to erect compound wall to protect its properties with police protection. The learned Single Judge exceeded his jurisdiction in observing that it is open for the petitioner to institute such legal proceedings as is available in law for recovery of damages, as also cost of restoration and to erect compound wall to protect its properties with police protection. The petitioner was issued with notice by the Tahsildar alleging encroachment to an extent of 6 guntas of Government land. The Tahsildar based on the report of the revenue officer had initiated proceedings by issuing notice.
9. Section 67 of the Act reads as follows :-
"67. Public Roads, etc., and all lands which are not the property of others belong to the Government.- (1) All public roads, streets, lanes and paths, bridges, ditches, dikes and fences, on or beside the same, the bed of the sea and of harbours and creeks below high water mark and of rivers, streams, nallas, lakes and tanks and all canals and water courses and all standing and flowing waters, and all lands wherever situated which are not the property of individuals or of aggregate of persons legally capable of holding property, and except in so far as any rights of such persons may be established, in or over the same, and except as may be otherwise provided in any law for the time being in force, are and are hereby declared to be with all rights in or over the same or appertaining thereto, the property of the State Government.
Explanation.- In this Section, "high-water mark" means the highest point reached by ordinary spring tides at any season of the year.
(2) Where any property or any right in or over any property is claimed by or on behalf of the State Government or by any person as against the State Government, it shall be lawful for the Deputy Commissioner or a Survey Officer not lower in rank than a Deputy Commissioner, after formal inquiry to pass an order deciding the claim.
(3) Any person aggrieved by an order made under sub-section (2) or in appeal or revision therefrom may institute a civil suit contesting the order within a period of one year from the date of such order and the final decision in the civil suit shall be binding on the parties."
The above provision requires enquiry. As contended by the petitioner no enquiry was held as required under the provisions of the Act. The notice issued to the petitioner is under Section 94 and Section 104 of the Act for eviction of unauthorized encroachment of Government lands in Sy.Nos.95, 134, 97, 98 and other Sy.Nos of Benniganahalli Village, K.R.Puram Hobli. In their reply to the notice the petitioner stated that the land in Sy.No.98 was transferred in the name of Sri. Rustomji and the same is registered. Further it is stated that the said Sri. Rustomji entered into joint development agreement with the petitioner for building residential apartment. The reply also states that as per sanctioned plan to the western side of Sy.No.98, 14 feet pathway has been left. Thus they denied any encroachment in Sy.No.98. But the reply is silent about other survey numbers mentioned in the notice. The Tahasildar was of the view that there exists cart road for villagers to go to Muneeshwaraswamy Temple, which is unauthorisedly encroached by the petitioners. If the petitioners have encroached cart road as opined by the Tahsildar, Section 67 of the Act, which is extracted above requires, the Deputy Commissioner or a Survey Officer not lower in rank than a Deputy Commissioner, after formal enquiry, pass an order. The facts of the present case wherein the Government claims that there is a ca
Please Login To View The Full Judgment!
rt road in survey number stated in the notice which is encroached by the petitioners, would require an enquiry by the Deputy Commissioner as required under Section 67 of the Act. If such an enquiry is held, truth would come out as to whether there is any encroachment of cart road by the petitioners or not. Hence, we are of the view, that the writ appeals require to be allowed by setting aside the order passed by the learned Single Judge and remitting the matter to the competent authority i.e., the Deputy Commissioner, to proceed in accordance with law with regard to alleged encroachment of government land by the petitioner. 10. Accordingly, the writ appeals are allowed. The impugned order dated 03.12.2015 passed by the learned Single Judge in W.P.Nos.46729 and 48690-705 of 2015 is set aside remitting the matter to the Deputy Commissioner for a fresh enquiry in accordance with law with regard to alleged encroachment of Government Land by the petitioner of Benniganahalli Village, K.R. Puram Hobli, Bangalore East Taluk. The enquiry shall be completed within a period of six months from the date of receipt of a copy of this order. Consequently I.A.No.2/2016 filed for stay does not survive for consideration, hence the application is dismissed.