DATED

18/07/2023

IN

CASE

NO.

LND/NCR/CR/54/2022-23

PASSED

BY

THE

TAHASILDAR,

YELAHANKA TALUK, BENGALURU, VIDE ANNEXURE-E, BY

ISSUE OF WRIT OR CERTIORARI, IN SO FAR AS PETITIONER'S

CONCERNED AND ETC.

THIS W.P. COMING ON FOR PRELIMINARY HEARING,

THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

The petitioner has sought for setting aside of the

order dated 18.07.2023 at Annexure-'E' insofar as the

petitioner is concerned.

2. In terms of Annexure-'E', the Tahsildar has

recorded a finding that the petitioner has encroached upon

the Government land in Sy.No.42 of Hoovinayakanahalli,

Jala Hobli, Yelahanka Taluk, as is made out from the Taluk

Surveyor and accordingly further directions be passed for

restoration of land to the Government.

3. The learned counsel for petitioner would contend

that the order of the Tahsildar is without jurisdiction as

Tahsildar has no jurisdiction to have initiated proceedings

under Section 104.

- 3 -

4. Learned AGA submits that in terms of order

passed in W.P.No.18157/2023 c/w W.P.No.2664/2023

disposed off on 05.10.2023, the present writ petition could

be disposed off on the same terms.

5. Heard both sides.

6. Noticed that in the notice at Annexure-C1, there

is an allegation regarding encroachment of road as well as

'Kaluve'.

7. Perused the order in W.P.No.18157/2023 c/w

W.P.No.2664/2023. Para 3 to 6 reads as follows:

3.

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.

- 4 -

4.

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

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.

5.

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:

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(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 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.

In light of the same, noticing that the assertion of

the State is regarding encroachment of road as well as

'Kaluve',

an

identical

order

as

made

in

- 6 -

W.P.No.18157/2023 c/w W.P.No.2664/2023 could be

passed.

8. It is the contention of learned counsel for

petitioner that the proceedings impugned in the present

writ petition are based on survey report and sketch which

has been prepared behind the back of the petitioner. The

said submission is taken note