(Prayer: This Writ Petitions are filed under Articles 226 and 227 of the Constitution of India with a prayer to quash the orders dt.10.3.11 which are produced as Ann-A to K notice issued by R5 to the above WP. Restrain the respondent authorities from interfering with the peaceful possession and enjoyment of the schedule immovable properties described in the schedule of WP.)
1. Subject matter of these writ petitions are notices dated 10.3.2011 issued by the 5th respondent-Tahsildar, Bangalore South Taluk, Bangalore, as per Annexures A to K, which are notices purporting to be issued under the provisions of Section 94 of the Karnataka Land Revenue Act, 1964 (for short ‘the Act’) to be precise under 94(3) and Section 39 of the Act.
2. Writ petitioners have approached this Court seeking the following prayer:-
“a. Issue a writ in the nature of certiorari, quashing the Order bearing Nos.NCR/CR/449/10-11 dated 10.3.2011 which are produced as Annexures A to K notice issued by 5th respondent to the above writ petition;
b. a writ of mandamus restraining the respondent authorities from interfering with the peaceful possession accused enjoyment of the scheduled immovable properties described in the schedule given hereunder.”
with the pleading that petitioners are all persons who are members of the 1st petitioner-Society, Food Corporation of India Employees Housing Co.op. Society Limited; that the Bangalore Development Authority (BDA) a statutory authority under the Bangalore Development Authority Act, 1976, had allotted an extent of 4 acres of land in favour of the 1st petitioner-Society, but on the other hand, had executed sale deeds to a large extent viz., 4 acres 15 guntas of land in Sy.No.31/2 of Devatyere Ramanagara Village, Bangalore South Taluk; that thereafter the Society has allotted sites to individual members and the individual members have put up construction of residential units from the years 1988 onwards and they have all been residing there without any disturbance hitherto, are now slapped with notices as per Annexures A to K all dated 10.3.2011 under which it is not only proposed to take action for removing them from the encroached land on the premise that even while the petitioners purporting to have constructed houses within allotted land in favour of the 1st petitioner-Society have nevertheless encroached upon 25.6 guntas of land in Sy.No.32 which is a government tank bed area; that it is therefore, required to remove them from such encroachment by taking action under the provisions quoted and also proposed notices issued by the Tahsildar, Bangalore South Taluk, has threatened for launching prosecution under Section 192(A) of the Act; that a wholesale threatening notices of this kind with dire consequences as indicated in the very notices has caused great anxiety and anguish to the petitioners and it is under such circumstances, the petitioners have approached this Court seeking quashing of notices at Annexures A to K and for consequential relief.
3. Notices had been issued to the respondents and respondents 1, 2, 5 and 6, State and its Officials in the Revenue Department are represented by Sri. Chittappa, learned Special Government Advocate. Though the Bruhat Bangalore Mahanagara Palike (BBMP) figures as respondents 3 and 4, it is submitted at the bar that the impugned notices are in no way connected with the action or proceedings of the BBMP and therefore they are only formal parties.
4. A very detailed statement of objections have been filed on behalf of respondents 1, 2, 5 and 6. It is indicated inter alia that the notices as indicated are only in respect of the encroachment of land located in Sy.No.32 and therefore, action is warranted, as it is the duty of the revenue officials to remove such people from encroachment on any community lands and such action is also inevitable on the part of the State Government in view of the directions issued in W.P.No.817/2008 and connected matters.
5. Mr. Chittappa, learned Special Government Advocate submits that notices are quite valid within the provisions of law; that a notice of this nature is quite possible even as per judgment of the Division Bench of this Court rendered in the case of KEMPANNAGOWDA Vs. STATE OF KARNATAKA dated 24.2.1982 reported in 1982 (2) KLJ SN 8 and therefore, submits that no interference is warranted by this Court at this state. All the petitioners have filed their objections and the respondents should be allowed to adjudicate the matter and the present writ petitions be dismissed.
6. This Court does not normally interfere with a show-cause notice and more often than not, persons who are in receipt of such show-cause notices are permitted to respond to the show-cause notices to putforth their case. When show-cause notices are issued within the limits of law in a proper and bona fide manner of exercise of statutory powers and there is assurances on the part of the respondents that all safety procedures will be adhered to and safeguards provided to persons against whom adverse action is proposed, but in the instant cases it is not very definite whether all such possibilities are available in the present situation.
7. In the first instance, a notice combining the provisions of Sections 39 and 94(3) of the Act is not either a valid notice in law or a bona fide exercise of the statutory power.
8. I say so, for the reason that Section 39 notice is a sequel to a determination in terms of Section 67 and in respect of persons who are found to be in wrongful possession of properties which are 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 etc., though the notices do indicate the present action in the wake of encroachment on the Tank Bed area in terms of the provisions of Sections 39 and 67 of the Act, is possible in the first instance, unless there is a determination that a person is in wrongful possession of the land, the land which is referred to in Section 67 is determined factually by a competent authority in terms of provisions of Section 39 of the Act, which is in the nature of execution proceedings are not reached. An execution is only of a decree or an award which is the operative portion of a determination and not without a determination and an operative portion, an execution proceedings can arise.
9. Sections 39 and Section 94(3) of the Act are like provisions viz., execution proceedings reading as under:-
“39. Manner of evicting any person wrongfully in possession of land.- Whenever it is provided by this Act or any other law for the time being in force that the Deputy Commissioner may or shall evict any person wrongfully in possession of land or where any order to deliver possession of land has been passed against any person under this Act, such eviction shall be made or such order shall be executed, as the case may be, in the following manner, namely.-
(i) by serving a notice on the person or persons in possession requiring them within such time as may appear reasonable after receipt of the said notice to vacate the land; and
(ii) if such notice is not obeyed, by removing or deputing a subordinate Officer to remove any person who may refuse to vacate the same; and
(iii) if the Officer removing any such person is resisted or obstructed by any person, the Deputy Commissioner or the Revenue Officer, as the case may be, shall hold a summary inquiry into the facts of the case and, if satisfied that the resistance or obstruction was without any just cause and that such resistance and obstruction still continues, may, without prejudice to any proceedings to which such person may be liable under any law for the time being in force for the punishment of such resistance or obstruction, take or cause to be taken, such steps and use or cause to be used, such force as may, in the opinion of such Officer, be reasonably necessary for securing compliance with the order.
94(3) Notwithstanding anything contained in the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1961 (Karnataka Act 3 of 1962), the person unauthorisedly occupying any such land shall also be summarily evicted by the Deputy Commissioner and any crop including tress, raised in the land shall be liable to forfeiture, and any building or other construction erected thereon shall also, if not removed by him after such written notice as the Deputy Commissioner may deem reasonable, be liable to forfeiture or to summary removal.”
10. A cursory reading of Section 94(3) of the Act indicates that this is amounting to evicting an unauthorized occupant of a land of the nature referred to in Section 67 is a provision which is provided by way of supplementary proceedings to the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, come up for evicting the unauthorized occupants of public premises.
11. While the lands of the nature referred to in Section 67 of the Act and contemplated under Section 94 of the Act for penal and other consequential action are all public premises and could be within the scope of the Public Premises (Eviction of Unauthorised Occupants) Act, also it is a specie to the lands specifically referred to in Section 67 of the Act and in respect of which the proceedings under the Karnataka Land Revenue Act, 1964, is a follow-up action and not under Section 39 of the Act. Therefore, on a reading of Section 94(3) of the Act, what can be inferred is that in respect of such lands which though nevertheless in the nature of public premises and on a determination that any person who is in unauthorized occupation of this land, such a person can also be evicted by making use of the procedure contemplated under Section 94(3) of the Act, apart from the possibilities under the Public Premises (Eviction of Unauthorized Occupation) Act, 1971.
12. It does not mean that a determination as to whether a person is in unauthorized occupation or otherwise which can be done so under the Public Premises Act has already been done, which is because Section 94(3) is quoted.
13. Until and unless a determination that a person is in either unauthorized occupation of public premises or is in wrongful possession of the land of the nature referred to in Section 67 of the Act has been made, the execution as such or Section 94(3) or even in Section 39 does not arise.
14. When such is the legal position a combined notice combining the provisions of Section 39 with section 94(3), the possibility of which is very much in doubt even in law, can only spell doom for petitioners, particularly, as, if they are permitted to be operated together. There is every likelihood of denial of proper opportunity to the petitioners, as a determination of unauthorized occupation by either wrongful possession or in unauthorized occupation is not contemplated in either of these provisions. They are to be independently determined, such independent determination having not been done so far, even as conceded by the respondents, it is only proper that the combined show-cause notices should not be permitted to be worked out to the detriment of the petitioners, particularly, when there are possibilities of the continuance of action pursuant to notices resulting in deprivation of a proper opportunity to the writ petitioners.
15. Though Mr. Chittappa, learned Special Govt. Advocate assures the Court now that the petitioners have filed their objections, it will be adjudicated by the respondents-State as to whether the petitioners are encroachers or otherwise, I am of the opinion, this is not acceptable, as an assurance by a counsel before the Court submitting that procedure will be followed independent of statutory provisions quoted in the notices may not be of much value in law. Any action to be taken by a public authority can only be in accordance with law and as per the procedure, there cannot be any permission, and it is the bounden duty of the state to ensure that rule of law prevails and not to resort other bypass methods. It is for this reason combined notices issued under Sections 39 and 94(3) of the Act are required to be quashed.
16. However, liberty is reserved to take such action as is warranted in law against such encroachers even if it factually found to be so and by following principles of natural justice, proper procedure and by calling in aid a corresponding statutory provision. It is for this reason mere quoting of wrong provisions is not one for providing the jurisdiction, is not accepted as it cannot be permitted from the very beginning and there is no point in this Court allowing some proceedings which are per se bad in law and to allow like proceedings to be concluded and later on by relying upon judgments as though this Court or the Supreme Court on noticing irregularity or illegality cannot be permitted by Courts just because in some given situation any irregularity or illegality had been saved.
17. Writ petitions are accordingly allowed. The impugned notices at Annexures A to K are quashed by issued of a writ of certiorari, but liberty is reserved as indicated above.
Rule made absolute.