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2023 Supreme(Online)(KAR) 2610
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NC: 2023:KHC:36174
WP No. 18157 of 2023
C/W WP No. 2664 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S SUNIL DUTT YADAV
WRIT PETITION NO. 18157 OF 2023 (KLR-RES)
C/W
WRIT PETITION NO. 2664 OF 2023 (LB-RES)
IN W.P.NO.18157/2023
BETWEEN:
M/S. KRISHNA ROYALE APARTMENT OWNERS
ASSOCIATION,
KRISHNA ROYALE APARTMENT,
SY NO. 19/3, SITE NO. 4 AND 5,
BBMP KATHA NO. 2370/97,
MUNNEKOLALU VILLAGE, VARTHUR MAIN ROAD,
MARATHAHALLI, BENGALURU - 560 037.
AS SOCIETY REGISTERED UNDER THE
KARNATAKA SOCIETIES REGISTRATION ACT, 1960
REPRESENTED BY ITS SECRETARY
MR. SHAILESH JAGANATH RAO.
…PETITIONER
(BY SRI. GIRISH K. V., ADVOCATE)
AND:
1.
THE STATE OF KARNATAKA,
REVENUE DEPARTMENT,
M. S. BUILDING,
DR. B. R. AMBEDKAR VEEDHI,
BENGALURU - 560 001.
REPRESENTED BY ITS SECRETARY.
Digitally signed
by REKHA
ANKAIAH
Location:
HIGH COURT
OF
KARNATAKA
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NC: 2023:KHC:36174
WP No. 18157 of 2023
C/W WP No. 2664 of 2023
2.
TAHSILDAR,
BENGALURU EAST,
K. R. PURAM, BENGALURU - 560 016.
3.
THE DEPUTY COMMISSIONER,
BENGALURU URBAN DISTRICT,
KANDAYA BHAVAN, K. G. ROAD,
BENGALURU - 560 009.
4.
THE ASSISTANT COMMISSIONER,
BENGALURU SOUTH SUB-DIVISION,
KANDAYA BHAVAN, K. G. ROAD,
BENGALURU - 560 009.
5.
THE COMMISSIONER,
BBMP, N. R. SQUARE, JC ROAD,
BENGALURU - 560 002.
…RESPONDENTS
(BY SRI. C.N. MAHADESHWARAN, AGA FOR R1 TO R4;
SRI. N.R. JAGADEESHWARA, ADVOCATE FOR R5)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE COSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED NOTICE DATED 31ST OCTOBER 2022 BEARING
NO.DMA(N.C.R)C.R:32/2022-23 ISSUED UNDER SECTION 104
OF KARNATAKA LAND REVENUE ACT, 1964 BY R2 WHICH IS
PRODUCED HERETO AS ANNEXURE-A AND ETC.,
IN W.P.NO.2664/2023
BETWEEN:
1.
M. K. THYAGARAJU,
S/O LATE M. T. KRISHNA REDDY,
AGED ABOUT 73 YEARS,
RESIDING AT NO.653 FERNS PARADISE,
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NC: 2023:KHC:36174
WP No. 18157 of 2023
C/W WP No. 2664 of 2023
DODDANEKKUNDI, OUTER RING ROAD
MARATHAHALLI,
BENGALURU - 560 037.
2.
M. K. AMARNARAYANA,
S/O LATE M. T. KRISHNA REDDY,
AGED ABOUT 63 YEARS,
RESIDING AT NO.330 FERNS CITY,
DODDANEKKUNDI, OUTER RING ROAD
MARATHAHALLI,
BENGALURU - 560 037.
3.
M. K. LOKESH,
S/O LATE M. T. KRISHNA REDDY,
AGED ABOUT 60 YEARS,
RESIDING AT NO.401 KRISHNA DHAM,
OUTER RING ROAD, MARATHAHALLI,
BENGALURU - 560 037.
4.
M. K. KODANDARAM,
S/O LATE M. T. KRISHNA REDDY,
AGED ABOUT 58 YEARS,
RESIDING AT NO.2/1,
DAMODARA MUDALIAR STREET,
1ST CROSS, ULSOOR
BENGALURU - 560 008.
…PETITIONERS
(BY SRI. P. B. RAJU, ADVOCATE)
AND:
1.
STATE OF KARNATAKA,
DEPARTMENT OF REVENUE,
VIDHANA SOUDHA,
DR. AMBEDKAR VEEDHI,
BANGALORE - 560 002.
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WP No. 18157 of 2023
C/W WP No. 2664 of 2023
REPRESENTED BY ITS
PRINCIPAL SECRETARY.
2.
THE DEPUTY COMMISSIONER,
BENGALURU URBAN DISTRICT,
KANDAYA BHAVAN, K. G. ROAD,
BENGALURU - 560 009.
3.
THE ASSISTANT COMMISSIONER,
BENGALURU SOUTH SUB-DIVISION,
KANDAYA BHAVAN, K. G. ROAD,
BENGALURU - 560 009.
4.
THE TAHSILDAR,
BENGALURU EAST,
K. R. PURAM, BENGALURU - 560 016.
5.
THE COMMISSIONER,
BBMP, N. R. SQUARE,
JC ROAD, BENGALURU - 560 002.
…RESPONDENTS
(BY SRI. C.N. MAHADESHWARAN, AGA FOR R1 TO R4;
SRI. N.R. JAGADEESHWARA, ADVOCATE FOR R5)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
NOTICE
DATED
31.10.2022
BEARING
NO.DMA(N.C.R)
C.R:32/2022-23 ISSUED BY THE R4 - TAHSILDAR VIDE
ANNEXURE-A AND ETC.,
THESE PETITIONS, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC:36174
WP No. 18157 of 2023
C/W WP No. 2664 of 2023
The
petitioner
in
W.P.No.18157/2023
is
M/s. Krishna Royale Apartment Owners Association and
has challenged the notice at Annexure-'A' issued by the
Tahsildar dated 31.10.2022 under Section 104 of the
Karnataka Land Revenue Act, 1964 (for short ‘the Act’). It
is submitted that the virtue of the sketch prepared by the
Taluk Surveyor, it appears that there is encroachment of
Government land in Sy.No.19/1 of Munekolalu Village,
Varthur Hobli. The said notice states that there is
encroachment of the ‘Kaluve’.
In W.P.No.2664/2023, the land owners have
challenged with respect to the portion retained by the land
owners in Sy.No.19/3 of Munekolalu Village, Varthur Hobli,
Bengaluru East Taluk, whereby they have challenged the
notice at Annexure-'A' issued by the Tahsildar under
Section 104 of the Act dated 31.10.2022, whereby the
notice makes out the case of encroachment of the ‘Kaluve
Land’. As the subject matter of dispute relates to the
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adjacent land and the assertion made in the notices are
identical, both the Writ Petitions are taken up together and
disposed off by a common order.
Learned Additional Government Advocate fairly
submits that the Tahsildar has no jurisdiction to issue
notices under Section 104 of the Act in the present case,
as the present dispute relates to alleged encroachment of
‘Kaluve’. It is submitted that insofar as encroachment of
‘Kaluve’ is concerned, the appropriate enquiry is to be
made under Section 67(2) of the Act.
Learned counsel for the petitioners in both the
matters would further draw attention to the survey sketch
at Annexure-K in W.P.No.2664/2023 and submit that the
notice of the Tahsildar is based on the sketch prepared
which demarcates the encroachment. But, however such
sketch has been prepared in the absence of the petitioners
and accordingly, even if the proceedings are initiated by
the respondent authorities afresh, if they base it on the
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sketch at Annexure-'K' in W.P.No.2664/2023, it would
result in injustice caused to them. Accordingly, it is prayed
that the survey be prepared afresh in the presence of the
petitioners in both the Writ Petitions and on the basis of
the sketch prepared in such survey after notice to the
petitioners in both the matters, the proceedings as per law
may be permitted to be proceeded.
After hearing both sides in both the matters, in
light of the stand of the AGA, the notices at Annexure-'A'
are set aside.
6.
However insofar as further action to be taken, it
is ordered as follows:
(a) Survey be conducted in presence of the
petitioners in both the matters, wherein the
sketch to be prepared demarcating the
encroachment if any.
(b) Subsequently, once the survey process is
completed,
it
is
upon
the
Deputy
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Commissioner to take proceedings in terms
of Section 67(2) of the Act and follow the
procedure therein. Needless to state, upon
conclusion of the said enquiry, the petitioners
are at liberty to seek redressal, if they agree
in terms of Section 67(3) of the Act.
(c) The identification of the ‘Kaluve’ is to be
done on the basis of the records maintained
by the Assistant Director of Land Records.
Copy of the documents to be shared with the
petitioners.
(d) The BBMP also to be notified at the time of
survey.
7.
Accordingly, the petitions are disposed off.
Sd/-
JUDGE
MCR
