Karnataka High Court
Sri K Harish vs The State Of Karnataka By Its Secy ... on 26 July, 2022
Bench: Acting Chief Justice, S Vishwajith Shetty
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY 2022
PRESENT
THE HON'BLE MR. ALOK ARADHE
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE S. VISHWAJITH SHETTY
W.P. NO.25444 OF 2005 (GM-RES)
BETWEEN:
1. SRI. K. HARISH
SON OF SRI. G.S. KRISHNA MURTHY
AGED ABOUT 40 YEARS
R/AT HARI NIVAS
VIVEKANANDA ROAD
RAMAMURTHY NAGAR
BANGALORE-16.
2. SRI. V.V. SUBRAMANIAN
SON OF SRI. V. NARASAIAH
AGED ABOUT 67 YEARS
R/AT 5TH CROSS, VIVEKANANDA ROAD
RAMAMURTHY NAGAR
BANGALORE-16.
3. SRI. H.S. SACHIDANANDA MURTHY
SON OF SRI. H.B. SHAMANNA
AGED ABOUT 45 YEARS
R/AT 42A, POST OFFICE ROAD
K R PURAM, BANGALORE-36.
... PETITIONERS
(BY MR. VINOD PRASAD, ADV.,)
2
AND:
1. THE STATE OF KARNATAKA
BY ITS SECRETARY TO REVENUE
DEPARTMENT, M S BUILDING
BANGALORE-01.
2. THE DEPUTY COMMISSIONER
BANGALORE RURAL DISTRICT
BANGALORE.
3. BANGALORE DEVELOPMENT AUTHORITY
BY ITS COMMISSIONER
KUMARA PARK WEST,BANGALORE-20.
4. ST. ANNE'S EDUCATION SOCIETY
NO 4, MILLER ROAD, BANGALORE
BY ITS PRESIDENT
SISTER PRESENTATION.
5. ST. ANNE'S INDEPENDENT JUNIOR
COLLEGE FOR GIRLS
RAMAMURTHY NAGAR
DOORAVANINAGAR POST
BANGALORE-16
BY ITS PRINCIPAL.
6. SMT. LAKSHMI
AGED ABOUT 75 YEARS
R/AT LAKSHMI ESTATE
RAMAMURTHY NAGAR, BANGALORE-16.
7. B. SRIRAMULU
NO.53, A.T. CROSS ROAD
BANASHANKARI III STAGE
BHAVANI LAYOUT
BANGALORE-85.
(AMENDED V.O. DATED 21.04.2006)
... RESPONDENTS
3
(BY MR. S. RAJASHEKAR, AGA FOR R1 & R2
MR. K. KRISHNA, ADV., FOR R3
MRS. NALINI MOHAN, ADV., FOR
MR. N.C. MOHAN, ADV., FOR R4 & R5
MR. ASHOK HARANAHALLI, SR. COUNSEL
FOR R7 ABSENT)
---
THIS W.P. IS FILED UNDER ARTICLE 226 AND 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE
GOVERNMENT TO MAINTAIN THE TANK IN LAND BEARING
SURVEY NO.27 OF KOWDENAHALLI VILLAGE BY CLEARING
ALL THE ENCROACHMENTS AND FURTHER, DIRECT THE
GOVERNMENT TO INITIATE APPROPRIATE ENQUIRY TO
KNOW AS TO HOW AND WITH WHOSE ACTIVE HELP AND
SUPPORT THE DOCUMENTS PRODUCED BY THE R6 IN
ORIGINAL SUIT HAVE BEEN FORGED AND FABRICATED.
DECLARE THAT THE ORDER DATED 29.03.1966 PASSED BY
THE SPECIAL DEPUTY COMMISSIONER VIDE ANX-G AND
ALL FURTHER ORDERS OBTAINED BY THE R6 IN
PURSUANCE TO THE ALLEGED GRANT AS VOID AND
ILLEGAL. GRANT INTERIM ORDER TO DIRECT THE
GOVERNMENT AND SPECIAL DEPUTY COMMISSIONER, R1
AND R2 RESPECTIVELY, TO MAINTAIN STATUS-QUO IN
RESPECT OF THE TANK AND PARK IN LAND BEARING
SURVEY NO.27 OF KOWDENAHALLI VILLAGE, BANGALORE
SOUTH TALUK.
THIS W.P. COMING ON FOR FINAL HEARING, THIS
DAY, ACTING CHIEF JUSTICE MADE THE FOLLOWING:
4
ORDER
This writ petition has been filed as public
interest litigation, in which petitioners inter alia seek a
writ of mandamus directing the Government to
maintain the Tank in land bearing Sy.No.27 of
Kowdenahalli Village, by clearing all the
encroachments on the land in question.
2. We have learned counsel for the parties.
3. The right of respondent No.4 viz., St.Ann's
Education Society in respect of land bearing Sy.No.27
of Kowdenahalli Village, K.R.Puram Hobli has already
been adjudicated by Hon'ble Supreme Court by an
order dated 23.01.2018 in Civil Appeal
No.1303/2008. The reliefs sought in this petition and
the order of the Supreme Court dated 23.01.2018
passed in Civil Appeal No.1303/2008 read as under:
"i) Issue a writ of mandamus, directing
the Government to maintain the tank in land
bearing Survey No. 27 of Kowdenahalli
Village by clearing all the encroachments
and further, direct the Government to initiate
appropriate enquiry to know as to how and
with whose active help and support the
documents produced by the 6th respondent
in original suit have been forged and
fabricated.
ii) Issue an order declaring that the
order in No. INA PR 71/65-66 dated
29.03.1966 passed by the Special Deputy
Commissioner vide Annexure-G and all
further orders obtained by the 6th
respondent in pursuance to the alleged grant
as void and illegal.
iii) Issue any other writ or order or
direction."
Order passed in Civil Appeal No.1303 of 2008
"We have heard learned counsel for the
parties in respect of the impugned judgment
and order dated 20th January, 2004 passed
by a learned Single Judge of the Karnataka
High Court in RFA No.846 of 1999 as well
as the order dated 22nd November, 2005 in
review petition No.510 of 2005.
The proceedings arise out of a civil suit
having been filed by Smt.Lakshmi through
her General Power of Attorney,
Shri.V.Sreeramalu.
One of the issues framed in the civil
suit was whether Smt.Lakshmi is a fictitious
person or not. There was no final
determination in this regard either by the
Trial court or by the First Appellate Court
(High Court).
As far as the present appeal is
concerned, it may only be stated that the
suit was for a decree seeking permanent
injunction against the appellant (St.Ann's
Educational Society) in respect of 10 acres of
land in Survey No.27 in Village
Kowdenahalli, Bangalore. While the civil suit
filed by Smt. Lakshmi was dismissed, the
First Appellate court (High Court) decreed
the suit in her favour.
It is under these circumstances that the
appellant is now before us.
In the present appeal, Smt.Lakshmi
has been served through her General Power
of Attorney Shri.v.Sreeramulu. Neither of
them has put in appearance in this court.
When Smt.Lakshmi filed the suit, she
was about 60 years of age in 1989. In the
normal course, Smt.Lakshmi would now be
about 97 years of age.
As far as Shri V.Sreeramulu is
concerned, he was about 80 years of age
when certain proceeding for contempt being
CCC (Criminal) No.12 of 2006 were initiated
against him by the Karnataka High Court in
2009. He would, therefore, be in the region
of 87years of age today.
We have no idea whether Smt.Lakshmi
is a fictitious person or not. If she is not a
fictitious person, she would be in the region
of about 97 years of age and we have no
idea whether she is still alive.
Similarly, we have no idea whether
Shri.V.Sreeramulu, her General Power of
Attorney is alive or not since no one has put
in appearance on their behalf.
Prima facie, on going through the
records of the case and after hearing
learned counsel for the parties, it does
appear to us that Smt.Lakshmi was a
fictitious person. Even her General Power of
Attorney Shri.V.Sreeramulu could not
produce her as is evident form the
proceedings for contempt being CCC
(Criminal) No.12 of 2006.
Under the circumstances, since it
appears that the civil suit filed by
Smt.Lakshmi being a non-existent person
was based on a complete fraud, the decree
granted in her favour is set aside.
We may note that insofar as the grant
of the land to the appellant is concerned,
that has been found against the appellant
right up to this court in SLP © No.1519-1520
of 2003 decided on 31st March, 2003.
We are informed that the appellant has
preferred some writ petition which is
pending in the Karnataka High Court being
W.P.No.23158 of 2008. We do not make any
comment or any observations with regard to
these proceedings.
It is also brought to our notice by
learned counsel for the appellant that the
civil suit being O.S.No.4709 of 2010 has
been filed by the appellant in the City Civil
Court, Bangalore for relief of permanent
injunction restraining the State of Karnataka
from interfering with the appellant's
possession of the suit scheduled property
without following due process of law.
It is submitted that an injunction has
been granted in favour of the appellant on
1st October, 2011.
In this context, we may note that all
the proceedings with regard to the grant of
the land to the appellant have attained
finality against the appellant by the
dismissal of SLP © No.1519-1520 of 2003
filed by the appellant in this court.
This may be taken note of by the High
Court and Civil Court as well.
The appeal stands disposed of."
4. Learned Additional Government Advocate
states before this Court that on an enquiry, the police
have found that respondent No.6 Smt.Lakshmi is a
fictitious and a non-existent person. It is further
stated that, on the basis of the survey carried out by
the Officers of the State Government, it is found that
Lake is situated on an area measuring 55 acres and 5
guntas, out of which, an area measuring 33 acres is
under encroachment. It is further stated that, the
Tahsildar shall take an action for removal of the
encroachment on the land /Tank in question.
5. The aforesaid submission made by learned
Additional Government Advocate is taken on record.
We therefore, issue the following directions:
(i) The Tahsildar shall carry out a survey
within a period of 30 days from the date of receipt of
copy of the order to ascertain the encroachment on
the lake / public property in question.
(ii) The Tahsildar shall take action for removal
of encroachments on lake / public properties with
utmost dispatch by following the due process of law
and by giving opportunity to all concerned.
(iii) The Tahsildar may request the
jurisdictional police to provide sufficient police force
for security arrangement. If such a request is made,
the jurisdictional police shall ensure that adequate
police force is deputed on the site, on the date and
time notified by Tahsildar for proceeding with removal
/ demolition of encroachment / unauthorised
structure on the public property.
(iv) Any person aggrieved by the decision /
action of the Tahsildar will be free to challenge the
same by way of an appropriate proceeding if so
advised before the court of competent jurisdiction.
(v) If any adverse order is passed by Tahsildar,
the affected person(s) will be given a week's time
before taking action on the basis of aforesaid order to
enable the concerned person(s) to assail that order by
way of appropriate proceeding before the court of
competent jurisdiction.
6. The action taken report shall be filed before
this Court on or before 30.09.2022. If such a report is
not filed before this court on or before 30.09.2022, let
the matter be listed on 12.10.2022 under the caption
"directions" for passing appropriate orders. Liberty is
also granted to the petitioners to move this Court if
the action taken report is deficient or discloses that
complete action has not been taken to remove all the
unauthorised occupant / structures.
Subject to aforesaid directions, the petition and
the pending applications if any are disposed of.
Sd/-
ACTING CHIEF JUSTICE
Sd/-
JUDGE
SS
