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2011 Supreme(Kar) 426
High Court of Karnataka
D.V. SHYLENDRA KUMAR
Food Corporation of India Employees Housing Coop Society Limited, Bangalore, rep. by Shri K V Srinivasan, Founder President & Others
Versus
State of Karnataka by its Chief Secretary & Others
Writ Petition Nos.15153-15165 of 2011 (KLR RES)
Decided on : 06-07-2011
For the Petitioners:V.B. Shiva Kumar, Advocate.
For the Respondents:R1, R2, R5 & R6 - Chittappa Spl. Govt. Advocate, R3 & R4 - M/s. Giridhar and Co., Advocates.
The main legal point established is that a combined notice under Sections 39 and 94(3) of the Karnataka Land Revenue Act, 1964, without independent determination, is not valid in law.
Headnote:
Karnataka Land Revenue Act - Notices - Section 94, Section 39 - Summary of Acts and Sections: The court discussed the provisions of Section 39 and Section 94(3) of the Karnataka Land Revenue Act, 1964. It highlighted the requirements for evicting unauthorized occupants and the procedure for such eviction. The court emphasized the need for independent determination before execution of eviction proceedings under these sections.
Fact of the Case:
The writ petitioners, members of a society, were issued notices by the Tahsildar under Section 94 and Section 39 of the Karnataka Land Revenue Act, 1964, for alleged encroachment on government land. They sought quashing of the notices and consequential relief.
Finding of the Court:
The court found that the combined notice under Sections 39 and 94(3) was not valid in law and not a bona fide exercise of statutory power. It emphasized the need for independent determination before execution of eviction proceedings and quashed the notices, reserving liberty for lawful action against encroachers.
Issues: The issues involved the validity of the notices issued under Section 94 and Section 39 of the Karnataka Land Revenue Act, 1964, and the propriety of combining these provisions in the notice.
Ratio Decidendi: The court held that a combined notice under Sections 39 and 94(3) without independent determination was not valid in law. It emphasized the importance of following proper procedure and principles of natural justice before taking action against encroachers.
Final Decision: The writ petitions were allowed, and the impugned notices were quashed by the issuance of a writ of certiorari, with liberty reserved for lawful action against encroachers.
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 t
