Result: Writ Petitions are allowed.

N. Kumar, J.

In all these Writ petitions the petitioners are seeking the relief of quashing the complaint filed by the Tahsildar against them with the jurisdictional Station House Officer and the proceedings initiated against the petitioners before the Chief Metropolitan Magistrate/Chief Judicial Magistrate as well as the charge sheets filed against them.

2. The main grievance of the petitioners in all these cases is, they are in occupation of the disputed land in question in their own right. It is not a Government land. They have not encroached upon any portion of the Government land. In fact some of them are purchasers of such lands. They are put in possession by their vendors, on the basis of documents handed over to them at the time of purchase. They are not aware of the factual position and may be innocent also. In spite of the same these proceedings are initiated against them as if they have encroached the Government land which is made an offence now by amendment of the Karnataka Land Revenue Act by introducing Section 192A. Some of them contend if any survey had been conducted with any notice to them and if it was shown to them that the land which is in their occupation or any portion of it is a Government land, they would have surrendered the said land. However, without giving any such oppurtunity, without conducting any survey in their presence, on the basis of Mahazars conducted, on the basis of documents to which they are not parties, a complaint is lodged by the Tahsildar with the jurisdictional police who in turn has initiated criminal proceedings and charge sheets are filed. Therefore, they seek for quashing of the entire proceedings.

3. After notice the Government entered appearance and supported their action. After hearing the matter at length when it was suggested to the Government that an oppurtunity ought to have been given to these petitioners and persons who are similarly placed, who if they are convinced that they are in occupation of a Government land, without any intention of entering upon the said land or continued to occupy the said land, they may voluntarily give up such possession. Time was taken to consider whether a provision could be made to adjudicate these aspects before initiation of proceedings. Today a memo is filed on behalf of the Government enclosing a circular dated 8.9.2008. The said circular reads as under:-

4. From the aforesaid circular it is clear the Government is now convinced that an oppurtunity should be given to all those alleged encroachers of Government land before any proceedings are initiated under Section 192A of the Act. In fact it stipulates a procedure under which is a show cause notice is to be given calling upon those alleged encroachers to file their objections within 15 days. If no objections are received authorities are called upon to visit the spot, conduct a Mahazar in the presence of the villagers, obtain their signatures and thereafter to initiate criminal proceedings if they are satisfied that there is encroachment. In the event of alleged encroachers producing documents to examine the same and only in the event of the said documents are found to be fabricated or duplicate, to initiate proceedings under Section 192A of the Act. In fact the said procedure contemplated by the Government satisfy the requirement of principles of natural justice, an oppurtunity is given to these persons to realise whether they have occupied a Government land and if they are convinced to surrender possession to avoid criminal prosecution. That would meet the ends of justice. In that view of the matter, as the criminal prosecution is launched against all these petitioners without affording an oppurtunity to have their say and in the light of the circular which is passed by the Government, these proceedings cannot be sustained.

5. In W.P. Nos. 3969/2007, 1023/2008 and 3550/2008 the petitioners have also challenged the constitutional validity of the said circular. However, for th