Karnataka High Court
H. Mahesh S/O Huligemma vs The City Municipal Council on 27 September, 2022
Bench: Ashok S. Kinagi
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WP No. 103705 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 27TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
WRIT PETITION NO. 103705 OF 2022 (GM-PP)
BETWEEN:
H. MAHESH S/O HULIGEMMA
AGED ABOUT 39 YEARS, OCC. COOLIE
R/O K.SUGURU VILLAGE
TQ. SIRUGUPPA -583121
DIST. BALLARI
.....PETITIONER
(BY SRI. S G KADADAKATTI, ADVOCATE)
AND:
THE CITY MUNICIPAL COUNCIL
SIRUGUPPA - 583121
DIST. BALLARI
BY ITS COMMISSIONER
.....RESPONDENT
(BY SRI. B. SHARANABASAWA, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
MOHANKUMAR
B SHELAR OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT/ORDER
Digitally signed by
MOHANKUMAR B
IN THE NATURE OF CERTIORARI BY QUASHING THE ORDER DATED
SHELAR
Date: 2022.09.29
13:46:36 +0530 22.08.2022 PASSED BY THE IVTH ADDL. DISTRICT AND SESSION
JUDGE (COMMERCIAL COURT) AT BALLARI IN MISC. APPEAL NO.
44/2022, VIDE ANNEXURE-T BY CONFIRMING THE ORDER DATES
18/02/2022 PASSED BY THE RESPONDENT IN CASE NO.
NSASI/VINYASA/179/2021-22 U/S 5 OF THE KARNATAKA PUBLIC
PREMISES (EVICTION OF UNAUTHORIZED OCCUPANTS) ACT, 1974,
VIDE ANNEXURE-S.
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WP No. 103705 of 2022
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS
DAY THE COURT MADE THE FOLLOWING:
ORDER
Petitioner aggrieved by the order dated 22.08.2022
passed in M.A.No.44/2022 on the file of 4th Addl. District
and Sessions Judge (Commercial Court) Ballari, confirming
the order dated 18.02.2022 passed by the respondent
under Section 5 of the Karnataka Public Premises (eviction
of unauthorized occupants) Act, 1974 (hereinafter referred
to as 'the Act', for short).
2. Brief facts leading rise to filing of this writ
petition are as under:
One M. Pandurang Shetty was the owner of the land
in Sy.No.374/2 measuring 21 acres 43 guntas. The said
land got converted into non-agricultural. The said M.
Pandurang Shetty applied for formation of layout plan and
the layout plan was approved. Thereafter the said M.
Pandurang Shetty got formed a layout in Sy.No.374/2 and
after formation of layout, he sold the sites to the intending
purchasers. The petitioner is the one of the purchasers
WP No. 103705 of 2022
from the said M. Pandurang Shetty. The petitioner
purchased the site No.262 formed in the Sy.No.374/2
measuring 40x30 situated at Ward No.30, Siraguppa
under the registered sale deed dated 07.06.2016. The
respondent issued a notice calling upon the petitioner to
demolish the house constructed in the area which is
earmarked for park and playground. The petitioner
submitted a detailed reply to the said notice. The
competent authority, after due enquiry, passed an order
under Section 5 of the Act directing the petitioner to
demolish the building and to handover the vacant
possession of the same. The petitioner aggrieved by the
same, preferred an appeal in M.A.No.44/2022. The
appellate Court after considering the material on record,
dismissed the appeal filed by the petitioner. Hence, this
writ petition.
3. Heard the learned counsel for petitioner and
learned counsel for respondent.
WP No. 103705 of 2022
4. Learned counsel for petitioner submits that the
Director, Planning Authority, Bengaluru approved the
layout plan vide order dated 20.04.1995 and the said
layout plan was modified vide Annexure-C by the
respondent. As per the modified layout plan, the area
which was demarcated for park and playground etc.
permitted to form residential sites. He submits that the
owner of the said land has not surrendered the site which
had reserved for park and playground in favour of the
respondent. He submits that the respondent has initiated
proceedings only against few purchasers. There is no
process of handing over the possession of the sites. He
submits that the sites under reference does not fall within
the definition of 'public premises' as defined under the Act.
The proceedings initiated under the Act is without
jurisdiction. The said aspect has not been considered by
the appellate Court. He further submits that the petitioner
after obtaining the construction permission has
constructed the building. Hence, on these grounds, he
prays to allow the writ petition.
WP No. 103705 of 2022
5. Per contra, learned counsel for respondent
submits that the original owner Sri M. Pandurang Shetty
filed W.P.No.67950/2010. He submits that the original
owner has pleaded in the writ petition that he has already
handed over the civic amenities sites reserved for park,
roads and playground in favour of the respondent in the
year 1995-96 itself. He submits that the said writ petition
came to be disposed of reserving liberty to the original
owner to make an application for modification of layout
plan to the Urban Development Authority. Further, it was
clarified that modification of layout excluding the areas
demarcated for park, roads and playground. He submits
that the original owner without getting approval of
modified layout plan from the Urban Development
Authority has sold the sites situated in the area
demarcated for park and playground. He placed reliance
on the order passed by the Coordinate Bench of this Court
in W.P. No.100862/2012 wherein similarly placed
petitioners filed the writ petition challenging the eviction
proceedings initiated by the respondent. Hence, he
WP No. 103705 of 2022
submits that the proceedings initiated by the respondent
are in accordance with law. He submits that when the
original owner himself has admitted that he has handed
over the possession of civic amenities sites, question of
accepting the contention of the petitioner that the owner
has not handed over the civic amenities sites park,
playground etc. would not arise. Further he submits that
the petitioner himself has submitted a representation to
the respondent admitting about the construction
undertaken by him in the area demarcated for park and
playground. In view of the said undertaking, the petitioner
is not entitled for any relief as claimed in the writ petition.
Hence, he prays to dismiss the writ petition.
6. Heard and perused the records and considered
the submissions of the learned counsel for parties.
7. It is not in dispute that one M. Pandurang
Shetty was the owner of land bearing R.S.No.374/2
measuring 21 acres 43 guntas. The said land was got
converted into non-agricultural. The said M. Pandurang
WP No. 103705 of 2022
Shetty applied for formation of sites. The said layout plan
was approved by the Director, Planning authority,
Bengaluru dated 20.09.1995 subject to conditions. The
respondent has produced the copy of the layout plan
which was approved on 26.03.1995. From the perusal of
the layout plan discloses that property under reference
had been demarcated for playground and park. The
original owner M. Pandurang Shetty without getting the
modified layout plan approved from the Urban
Development Authority has formed sites illegally and sold
the same in favour of the petitioner and others. Further
the said M. Pandurang Shetty has filed
W.P.No.67950/2010 and in the memorandum of the said
writ petition, he has clearly admitted that he has already
handed over the vacant land reserved for civic amenities
and has been transferred in the year 1995-1996. The
original owner undertaken to handover the vacant spaces
and executed an undertaking on Rs.10 bond paper.
Further the said writ petition came to be disposed of
reserving liberty to the original owner to make a
WP No. 103705 of 2022
representation and directed the Urban Development
Authority to consider his representation under the
provisions of the Karnataka Urban Development Authority
Act, 1987 and to pass an order in accordance with law
excluding the areas demarcated for open spaces, park and
roads. The said M. Pandurang Shetty without handing over
the area demarcated for open space, park and roads, has
formed sites illegally without getting approval from the
competent authority as observed by the Court in the
aforesaid writ petition and sold the sites in favour of the
petitioner and others. Further one of the purchasers has
filed writ petition in W.P.No.100862/2022. This Court
dismissed the said writ petition.
8. The respondent has produced the copy of
representation submitted by the petitioner wherein the
petitioner has admitted that he has put up construction
over the area demarcated for park and playground in the
layout plan. The petitioner has produced the documents
to establish that the said layout plan was modified by an
administrative approval vide Annexure-C. The original
WP No. 103705 of 2022
owner M. Pandurang Shetty filed a writ petition in
W.P.No.67950/2010. This Court dismissed the said writ
petition and observed that if the original owner makes a
representation to the Urban Development Authority,
Siraguppa, constituted under the Karnataka Urban
Development Authority Act, 1987, having jurisdiction over
Siraguppa, to consider the representation and to pass
order in accordance with law without, however, modified
plan insofar as it relates to the areas demarcated for open
space, park and roads. The petitioner has produced
Annexure-C dated 08.06.1995. The original owner Sri M.
Pandurang Shetty filed a writ petition in the year 2010 in
W.P.No.67950/2010. The respondent has produced the
copy of memorandum of writ petition. It creates a doubt
about the genuineness of Annexure-C. Further, the said
alleged modified layout plan has not been approved by the
Urban Development Authority, Siraguppa. Annexure-C
produced by the petitioner is not approved by the
competent authority. The respondent has produced the
layout plan. From the perusal of the layout plan, property
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WP No. 103705 of 2022
under question demarcates open space, park and
playground which is reserved for public at large for
recreation, enjoyment, ventilation, fresh air in accordance
with the approved plan. The said plan cannot be sacrificed
by leasing or selling such sites to the private persons like
the petitioner for conversion to some other users. The
petitioner has failed to establish that the area demarcated
for park and playground was converted into residential
sites.
9. The property under reference falls within the
definition of 'premises' under Section 2(c) of the Act which
reads as under:
2(c) "premises" means any land or any
building or part of a building and includes--
(i) the garden, grounds and outhouses, if
any, appertaining to such building or part of a
building, and
(ii) any fittings affixed to such building or
part of a building for the more beneficial
enjoyment thereof;
Section 2(e) of the Act reads as under:
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WP No. 103705 of 2022
(e) "public premises" means--
(1) any premises belonging to, or taken on lease
or requisitioned by, or on behalf of the Central
Government, and includes any such premises
which have been placed by that Government,
whether before or after the commencement of
the Public Premises (Eviction of Unauthorised
Occupants) Amendment Act, 1980 (61 of 1980),
under the control of the Secretariat of either
House of Parliament for providing residential
accommodation to any member of the staff of
that Secretariat;
10. 'Premises' means any land or building includes
any garden, grounds and outhouses and 'public premises'
means any property belongs to the State Government or a
local authority.
11. Admittedly, in the instant case, the property
under reference falls within the definition of 'premises' and
further, it belongs to respondent as per Section 2(e) of the
Act. The respondent taking into account the property
under reference falls within the definition of 'public
premise' issued a show cause notice under Section 4 of
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WP No. 103705 of 2022
the Act. The petitioner submitted a reply to the show
cause notice. The competent authority considered the
material on record and passed an order of eviction under
Section 5 of the Act. In the similarly placed petitioners
have filed writ petitions in W.P.Nos.100862/2022 and
102685/2021 in respect of the same area. The said writ
petitions came to be dismissed by the Co-ordinate Bench
of this Court vide order dated 21.03.2022 and 24.08.2022
respectively.
12. The Hon'ble Supreme Court in S.KASI V.
STATE THROUGH THE INSPECTOR OF POLICE,
SAMAYNALLUR POLICE STATION, MADURAI
DISTRICT (Crl. Appeal No.452 of 2020 dt.19th June
2020) has held that the judgment passed by the
Coordinate Bench has a binding effect on latter bench.
Paragraphs 31 and 32 which are relevant are extracted
below :-
"31. Learned single judge in the impugned judgment
has taken a contrary view to the earlier judgment of learned
single judge in Settu v. The State (supra). It is well settled
that a coordinate bench cannot take a contrary view and in
event here was any doubt, a coordinate bench only can refer
the matter for consideration by a Larger Bench. The judicial
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discipline ordains so. This Court in State of Punjab and
another v. Devans Modern Breweries Ltd. And another
(2004) 11 SCC 26, in paragraph 339 laid down following :-
"339. Judicial discipline envisages that a coordinate
bench follow the decision of an earlier coordinate Bench. If a
coordinate Bench does not agree with the principles of law
enunciated by another Bench, the matter may be referred only
to a larger Bench. (See Pradip Chandra Parija v. Pramod
Chandra Patnaik, (2002) 1 SCC 1 Devi, (2002) 7 SCC 273.
But no decision can be arrived at contrary to or inconsistent
with the law laid down by the coordinate Bench. Kalyani Stores
(supra) and K.K.Narula (supra) both have been rendered by
the Constitution Benches. The said decisions, therefore,
cannot be thrown out for any purpose whatsoever; more so
when both of them if applied collectively lead to a contrary
decision proposed by the majority"
32. Learned Single Judge did not follow the judicial discipline
while taking a contrary and diagonally opposite view to one
which have been taken by another learned Single Judge in
Settu versus The State (Supra). The contrary view taken by
learned Single Judge in the impugned judgment is not only
erroneous but also sends wrong signals to the State and the
prosecution emboldening them to act in breach of liberty of a
person."
13. In view of the law laid down by the Hon'ble
Apex court in above referred judgment, In order to
maintain judicial discipline envisages that a coordinate
Bench follows the decision of a earlier coordinate bench. I
respectfully concur with the order passed in
W.P.No.100862/2022 and W.P.No.102685/2021.
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14. The appellate Court after considering the
material on record and also orders passed by this Court
was justified in dismissing the appeal filed by the
petitioner. Hence, I do not find any ground to interfere
with the impugned order.
15. In view of the above discussion and
considering the orders passed in the aforesaid writ
petitions, the writ petition is hereby dismissed.
Sd/-
JUDGE
Naa
