Mr. Naryana Swamy vs The Commandant
2023 Latest Caselaw 3780 Kant

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                                                   NC: 2023:KHC:22444
                                                    WP No. 13426 of 2023




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 28TH DAY OF JUNE, 2023

                                         BEFORE

                       THE HON'BLE MR JUSTICE KRISHNA S DIXIT

                      WRIT PETITION NO. 13426 OF 2023 (GM-PP)

                   BETWEEN:

                   MR. NARYANA SWAMY,
                   AGED ABOUT 56 YEARS,
                   PROPRIETOR,
                   M/S. SHREE SERVICE STATION,
                   INDIAN OIL DEALERS,
                   OLD AIRPORT ROAD,
                   DOMLUR, BENGALURU - 560 071.
                                                            ...PETITIONER
                   (BY SRI. R. S. RAVI, SR. COUNSEL A/W
                       SRI. MAYANNA GOWDA N R., ADVOCATE)

                   AND:

Digitally signed   THE COMMANDANT,
by SHARADA
VANI B             ASC CENTRE AND COLLEGE,
Location: HIGH     OLD AIRPORT ROAD,
COURT OF           AGRAM POST,
KARNATAKA          BENGALURU - 560 007.
                                                          ...RESPONDENT
                   (BY SRI. MADHUKAR DESHPANDE, ADVOCATE FOR
                       CAVEATER/RESPONDENT)

                        THIS WRIT PETITION IS FILED UNDER ARTICLES 226
                   AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL
                   FOR RECORDS IN M.A.NO. 25002/2022 ON THE FILE OF THE
                   HONBLE COURT OF LVII ADDL. CITY CIVIL AND SESSION
                   JUDGE, MAYOHALL AT BANGALORE; SET ASIDE THE
                   JUDGEMENT AND DECREE DATED 21/04/2023 IN M.A.NO.
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                                              NC: 2023:KHC:22444
                                                WP No. 13426 of 2023




25002/2022 ON THE FILE OF THE HONBLE COURT OF LVII
ADDL. CITY CIVIL AND SESSION JUDGE, VIDE ANNEXURE-A,
MAYOHALL AT BANGALORE AND ETC.,

    THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

                                   ORDER

Petitioner is knocking at the doors of Writ Court for

assailing the Judgment & decree dated 21.04.2023

rendered by learned LVII Additional City Civil Judge, Mayo

Hall Bengaluru, in MA No.25002/2022, whereby his

challenge to the Eviction Order dated 06.10.2022 made by

the Defence Estate Officer has been negatived. Learned

Sr. Advocate appearing for the Petitioner vehemently

argues that where there is a serious dispute as to title to

the property, the invocation of the provisions of the Public

Premises (Eviction of Unauthorized Occupants) Act, 1971

is impermissible. He also argues that identity of the

subject property itself is in challenge and such issues have

to be sorted at the hands of ordinary Civil Courts. There is

a grievance as to non-availability of reasonable

NC: 2023:KHC:22444 WP No. 13426 of 2023

opportunity to the Petitioner in the subject proceedings.

So arguing, he seeks invalidation of the impugned orders.

2. Learned Sr. CGC appearing in Caveat on behalf

of the Respondent vehemently opposes the Petition

making submission in justification of the impugned orders

and the reasons on which they have been structured. He

points out the findings recorded by the Coordinate Bench

of this Court in earlier rounds of litigation and thereby

seeks to resjudicate the contentions of the Petitioner. He

submits that the impugned orders are perfectly in accord

with the law as laid down by the Apex Court. Lastly, he

contends that the supervisory jurisdiction under Article

227 constitutionally vested in this Court being restrictive,

the examination of the impugned orders cannot be

undertaken as if the challenge to them is appeal, more

particularly when the factual findings have been recorded

by the statutory authority and the same having been

examined are affirmed by the learned City Civil Judge on

the regular side.

NC: 2023:KHC:22444 WP No. 13426 of 2023

3. Having heard the learned counsel for the

parties and having perused the Petition papers, this Court

declines indulgence in the matter for the following

reasons:

a) The principal contention of learned Sr. Advocate

Mr. R S Ravi that there has been a title dispute concerning

the subject property and therefore, the provisions of the

1971 Act could not have been invoked, is difficult to

countenance, and reasons for this are not far to seek:

firstly, the contention of the kind is liable to be

resjudicated as rightly contended by learned Sr. CGC in as

much as there is a finding recorded by a coordinate bench

of this Court in petitioner's earlier round of litigation W.P.

No. 48985/2017 dismissed on 06.09.2019 with a cost of

Rs.10,000/-. At paragraph nos. 23 & 24, the learned

Coordinate Judge has observed as under:

23. It is not the case of the petitioner that the defence authorities have encroached upon the civic amenity site No.6 allotted to M/s. Indian Oil Corporation Limited. The entire pleadings and

NC: 2023:KHC:22444 WP No. 13426 of 2023

the grounds urged in the present writ petition is to the effect that he has not encroached upon the defence land and he is inoccupation of only civic amenity site measuring 696.06Square Meters, which was allotted to M/s. Indian Oil Corporation Limited by the Bengaluru Development Authority and nothing beyond that. If that is the defence, there should not have been a dispute of title between the parties as alleged by the petitioner. It is the specific case of the respondent - Defence Department that the petitioner has encroached upon the defence land measuring to an extent of 171.190 Square Meters in Sy. No.282 of Domlur village. Therefore, the contention of the learned counsel for the petitioner that the eviction notice issued in respect of the disputed property cannot be accepted and the judgment relied upon by the learned counsel for the petitioner in the case of Western Coalfields Limited1 ... has no application to the facts of the present case.

24. Admittedly, there is no dispute with regard to the title of the Defence Department in respect of property measuring to an extent of 171.190 Square Meters in Sy. No.282 of Domlur village encroached by the petitioner. At this stage, this Court cannot decide the question as to whether the petitioner has encroached upon the property allegedly belonging to the Defence Department and whether the petitioner is in occupation of only civic amenity site allotted by the Bengaluru Development Authority in favour of M/s. Indian Oil Corporation Limited, which has executed 28 licence agreement dated 07.08.1991 in favour of

(2019)2 SCC 327

NC: 2023:KHC:22444 WP No. 13426 of 2023

the petitioner, and the same has to be adjudicated by respondent No.1 - Estate officer."

b) The above findings have been recorded by the

Coordinate Bench on the specific contention of the

Petitioner that there was a title dispute between the

parties and that could not be adjudged by the authorities

under the provisions of 1971 Act. The submission of

learned counsel for the Petitioner that the said findings are

only obiter dicta since such questions did not arise in a

challenge to the order that rejected request for

impleadment, is bereft of any jurisprudential value. The

idea of obiter dicta is associated with the arguable

precedential value of a decision and it has nothing to do

with the findings that attract res judicata, to say the least.

Added, the challenge to the said order by the Petitioner in

W.A.No.124/2020 came to be dismissed by the Division

Bench vide order dated 03.03.2020. Even the cost

awarded by the Coordinate Bench has not been upset in

this order.

NC: 2023:KHC:22444 WP No. 13426 of 2023

c) The contention as to the regularity of the

proceedings at the hands of the Defence Estate Officer

has also been considered by the Coordinate Bench and

rejected. Therefore, a similar contention cannot be urged

in this Writ Petition by twisting the language and form, its

substance remaining the same. There is a specific finding

at the hands of the Court below in M.A. No.25002/2022 as

to Petitioner's contention that the subject Show Cause

Notice was incorrect. Said contention has been rejected

by the learned judge after considering all aspects including

the property comprised therein and its boundaries.

Therefore, such a factual finding does not merit a deeper

examination at the hands of Writ Court exercising a limited

supervisory jurisdiction under Article 227 vide SADHANA

LODH V. NATIONAL INSURANCE COMPANY LTD., (2003) 3

SCC 524

d) The 1971 Act is a special Legislation enacted by

the Parliament for safeguarding the public property from

unauthorized occupation. It provides a speedy machinery

NC: 2023:KHC:22444 WP No. 13426 of 2023

and a summary procedure for eviction of unauthorized

occupants. The proceedings at the hands of the Defence

Estate Officer began way back in the year 2014. With one

or the other interdiction, these proceedings have been

dragged on for a little less than a decade. The checkered

history of this case shows that Petitioner is not claiming to

be the owner of subject property or the property adjoining

the same which arguably he holds as a licensee of the

Indian Oil Corporation, which again is an allottee at the

hands of the BDA. Had he claimed ownership over the

subject property or the property which he is licensed to

hold, perhaps he could have had some grounds to oppose

the eviction proceedings. The conduct of the Petitioner

exhibits a recalcitrant attitude "come what may, I shall

squat on the public property". Such a litigant cannot be

granted any equitable relief at the hands of constitutional

Court.

NC: 2023:KHC:22444 WP No. 13426 of 2023

In the above circumstances, this Writ Petition being

devoid of merits is liable to be dismissed and accordingly,

it is, costs having been reluctantly made easy.

Petitioner is granted a period of one month to vacate

the premises with lock, stock & barrel, failing which, he

can be removed by the Respondent by using reasonable

force.

Sd/-

JUDGE

CBC