Upload
doandien
View
220
Download
5
Embed Size (px)
Citation preview
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF FEBRUARY 2015
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
WRIT PETITION No.49183/2012 C/W
CRIMINAL PETITION No.7565/2012 C/W
CRIMINAL PETITION No.7249/2012 C/W
CRIMINAL PETITION No.7303/2012 C/W
WRIT PETITION No.50406/2012
IN WRIT PETITION No.49183/2012
BETWEEN : Sri Shiva Kumar K M S/o Late K H Mahadevappa Aged about 61 years R/o Villa No. 129 Adarsh Palm Retreat Devarabeesanahalli Bangalore-560 103. ... PETITIONER
(By Sri K Shashikiran Shetty, Sr. Counsel For Sri Pavan G N & Farah Fathima for M/s. Shetty and Hegde Associates, Advs.)
2
AND : 1. State of Karnataka Through Station House Officer Bangalore Metropolitan Task Force N R Square Bangalore-560 002. Rep. by S.P.P, High Court. 2. Sri L Nagesh S/o Sri N Lakshmana Aged about 35 years R/o No. 783, Hogebandi Garden Begur Hulimavu Road Bangalore-560 052. ... RESPONDENTS
(By Sri A G Shivanna, AGA for R1, By Sri Ramesh Chandra for R2)
This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the FIR bearing No.203/2012 dated 13.11.2012 against the petitioner and others accused for alleged offences under Section 119, 217, 218, 181, 197M 420 read with Section 34 of the I.P.C. and 320, 321 and 321(b) of the K.M.C Act, 1976 and Section 76 (FFF) of the Karnataka Town and Country Planning Act 1961, Vide Annexure-A And etc.,
3
IN CRIMINAL PETITION No.7565/2012
BETWEEN: 1. Sri T N Chikkarayappa Aged about 51 years S/o Sri S Narayanappa R/at No.546, 1st Main Road 3rd Block Dollar Colony RMV 2nd Stage Bangalore. Former Chief Engineer, BBMP. 2. Sri Somashekara S/o Sri Sannaswamy Aged about 52 years No. 307, Canara Bank Colony Nagarbavi Road Bangalore-560 072. Present Chief Engineer, BBMP. 3. Sri M C Lakshmisha Aged about 48 years R/at No.48, 8th Cross
J C Nagar Mahalakshmipuram Bangalore-560 086. Present Executive Engineer, BBMP. .. PETITIONERS
(By Sri H S Dwarakanath, Adv.) AND: 1. Sri L Nagesh
Aged about 35 years
4
S/o Sri N Lakshmana R/at Begur Village Begur Hobli Bangalore South Taluk.
2. State of Karnataka By Bengaluru Metropolitan Task Force. Represented by its
State Public Prosecutor High Court Building Bangalore-560 001. .. RESPONDENTS
(By Sri. A G Shivanna, AGA for R2 Sri Ramesh Chandra, Adv. For R1)
This criminal petition is filed under Section 482 Cr.P.C. praying to
quash F.I.R. in Cr.No.203/2012 on the file of the C.M.M., Bangalore vide Annexure-A, in so far as the petitioners.
IN CRIMINAL PETITION No.7249/2012
BETWEEN:
1. Sri H R Ravichandra Aged about 45 years S/o Late R Rajashekar Reddy R/at No. 551, 16th A Main 3rd Block, Koramangala Bangalore-560 034.
2. Smt Kastoori Aged about 62 years W/o Dr. G Krishna Reddy R/at No. 748, 18th a Main
5
6th Block, Koramangala Bangalore-560 095. .. PETITIONERS
(By Sri H S Dwarakanath, Adv.) AND: 1. Sri L Nagesh
Aged about 35 years S/o Sri N Lakshmana R/at Begur Village Begur Hobli Bangalore South Taluk.
2. State of Karnataka By Bengaluru Metropolitan Task Force. Represented by its
State Public Prosecutor High Court Building Bangalore-560 001. .. RESPONDENTS
(By Sri. A G Shivanna, AGA for R2 Sri Ramesh Chandra, Adv. For R1)
This criminal petition is filed under Section 482 Cr.P.C. praying to
quash F.I.R. in Cr.No.203/2012 on the file of the C.M.M., Bangalore vide Annexure-A, in so far as the petitioners.
IN CRIMINAL PETITION No.7303/2012 BETWEEN: M/S SUADELA CONSTRUCTIONS PRIVATE LTD. A Company incorporated under the Companies Act 1956
6
Having its registered office at No.514, Dlamal Towers Nariman Point Mumbai-400 021 And Branch Office at No.50, Outer Ring Road Vijaya Bank Colony Banswadi Bangalore-560 043 Represented by its Authorised Signatory Sri C R Prakash .. PETITIONER (By Sri C.V. Nagesh, Senior Counsel For Sri. K. Suman, Adv.) AND: 1. State of Karnataka By the Police Sub Inspector BMTF Police Station Bangalore-560 002. 2. Sri L Nagesh Major in Age S/o Lakshmana No.783 Hogebandi Garden Begur Hulimavu Road Bangalore-560 068. .. RESPONDENTS (By Sri. A G Shivanna, AGA for R2 Sri Ramesh Chandra, Adv. For R1)
7
This criminal petition is filed under Section 482 Cr.P.C. praying to quash the complaint filed by the 2nd respondent and the F.I.R. registered by the 1st respondent/police Sub Inspector, BMTF Police Station in Cr.No.203/2012 for the offences punishable under Sections 119, 217, 218, 181, 197, 420 read with Section 34 of IPC and Section 320, 321, 321(b) of the Karnataka Municipal Corporation Act and Section 76 (FFF) of Karnataka Town and Country Planning Act and all further proceedings thereon as against the petitioner.
IN WRIT PETITION No.50406/2012
BETWEEN : Mr. Pradeep Singh Khorala S/o Late B.B.S. Khorala Aged 51 years Principal Secretary to the Chief Minister Government of Karnataka Vidhana Soudha Bangalore-560 001. ... PETITIONER
(By Sri Venkatesh Murthy, Adv. For M/s. Poovayya and Co., Advs.) AND : 1. State of Karnataka Represented by its Principal Secretary to Government Urban Development Department Vikasa Soudha Bangalore-560 001. 2. Bangalore Metropolitan Task Force BBMP Main Building
8
NR Square, N R Road Bangalore-560 002. 3. Mr Nagesh S/o Mr Lakshmana R/o No. 783, Hogebandi Garden Begur Hulimavu Road Bangalore-560 076. ... RESPONDENTS
(By Sri A G Shivanna, AGA for R1-2, By Sri Ramesh Chandra, Adv. for R3)
This writ petition is filed under Articles 226 of the Constitution of India praying to call for records in Cr.No.203/2012 on the file of the Hon’ble Chief Metropolitan Magistrate, Bangalore and etc.
These petitions having been heard and reserved for orders, coming on for pronouncement of judgment, this day, the Court delivered the following:
ORDER
The petitioners have filed these petitions under Articles 226 and
227 of the Constitution of India read with Section 482 of Cr.P.C.
requesting the Court to issue writ or order or direction in the nature of
certiorari or any other appropriate writ or order or direction for
quashing FIR bearing No.203/2012 dated 13.11.2012 against the
petitioners in the petitions for the alleged offences under Sections 119,
9
217, 218, 181, 197M, 420 r/w. Section 34 of IPC and Sections 320, 321
and 321(b) of Karnataka Municipal Corporation Act, 1976 (for short ‘the
KMC Act’) and under Section 76(FFF) of the Karnataka Town and
Country Planning Act, 1961 (for short ‘the KTCP Act’), to issue writ,
order or direction in the nature of certiorari or any other appropriate
writ, order or direction for quashing complaint dated 13.11.2012 filed by
respondent No.2 and to issue writ, order or direction in the nature of
mandamus declaring the act of respondent No.1 in registering the FIR
bearing No.203/2012 dated 13.11.2012 against the petitioners as an
abuse of process of law and an act of ultra vires.
2. Heard the arguments of Sri. C.V. Nagesh, learned Senior
Counsel appearing for the petitioner in Crl.P. 7303/2012, and the
learned counsel appearing for the petitioners in other petitions. I have
also heard the arguments of the learned Additional Advocate General
for the respondent-State as also the learned counsel for respondent-
complainant.
10
3. The first and foremost contention of the learned Senior
Counsel Sri. C.V. Nagesh is that Bengaluru Metropolitan Task Force
(hereinafter referred to as ‘BMTF’) has no jurisdiction to register the FIR
and to take up the matter for investigation. He submitted that the
allegation in the complaint that the petitioners by encroaching the public
land illegally have taken steps to widen the road and in the said process,
there is encroachment of the public land, is totally baseless. The owners
of the lands have executed the deed of relinquishment in favour of
corporation authorities. One Nagaraj filed a suit in O.S. No.1231/2011
before the Court of Civil Judge at Bengaluru in respect of the said
dispute wherein he had also sought for an order of temporary injunction
against the defendants therein. The application I.A. No.1 filed in the
said suit was dismissed after considering the merits of the case. He
submitted that there afterwards, a private complaint under Section 200
Cr.P.C. was also filed and the matter was referred by the learned
Magistrate to the police as per 156(3) of the Cr.P.C. After investigation
of the matter, ultimately, the police have filed ‘B’ report in the said case.
As the said Nagaraj was not succeeded, in his efforts both in suit as well
11
as in private complaint, he set up his brother to file present complaint
before the BMTF in crime No.203/2012. The learned Senior Counsel
further submitted that BMTF can entertain the complaint, register the
FIR and investigate the offences in respect of which there is a
notification by the Government of Karnataka authorizing the BMTF to
register the FIR and to investigate into the matter. So far as the present
FIR is concerned, there is no authorisation by the government to register
the case and investigate into the offences under the KTCP Act. Even
with regard to the offences alleged under the provisions of the KMC
Act, they are not at all the offences and no investigation can be
conducted by the BMTF. If the offences under the provisions of the
KTCP Act and the KMC Act are excluded, the remaining offences are
only under the IPC and the BMTF is not competent to enquire into or
investigate in respect of offences under IPC, even according to the
notification issued by the government of Karnataka. The learned Senior
Counsel further submitted that looking to the complaint averments, no
doubt, it is alleged that the offences are also committed under the
provisions of Sections 192A and 192B of the Karnataka Land Revenue
12
Act (hereinafter referred to as ‘the KLR Act’). In this connection also,
assuming for the sake of appreciation of arguments, a procedure is
prescribed and the said procedure is to be followed before registering
the FIR, and an opportunity is to be given to the land owners and
alleged encroachers. After getting their say and after considering their
reply in the matter, still if the government feels that such offences are
committed under the provisions of the KLR Act, then FIR can be
registered for the said offences and which procedure is not followed in
this case. Hence, he submitted that even considering the case on merits
also, there is no prima facie case made out by the respondents in
registering the FIR as against the petitioners herein. Hence, he submitted
to allow the petitions and to quash the proceedings. In support of his
contentions, the learned Senior Counsel has relied upon the following
decisions:
1. AIR 2008 SC 247 (Para-17) - All Cargo Movers (I) Pvt. Ltd. Vs. Dhanesh Badarmal Jain and another 2. AIR 2008 SC 2462 (Para-12) - M Saravana Porselvi Vs. A R Chandrasekar and Others
13
3. Unreported Judgment dated 10.10.2013 in Crl.P.No.5340/2012 in case of G D Jayarama and Another Vs. The State 4. ILR 2008 KAR 4520 - (Smt Lalitha Sastry Vs. State of Karnataka)
4. Learned counsel appearing for petitioners in other petitions
have adopted the arguments of the learned Senior Counsel Sri. C.V.
Nagesh and in addition to that, they submitted that the complaint was
filed and FIR was registered with mala fide intention and there is no
prima facie case made out by the prosecution. Accordingly, they
submitted to quash the FIR by allowing the petitions.
5. Per contra, learned counsel appearing for respondent-2
complainant, during the course of arguments made the submission that,
in the earlier proceedings, complainant was not a party and hence, those
proceedings are not binding on the complainant in this case. He has also
submitted that the investigating officer has to take into consideration as
to what are the allegations made in the complaint. The complaint
averments not only show the commission of the offences under the
provisions of KTCP Act, KMC Act and IPC, but also shows the
offences committed under Sections 192A and 192B of the KLR Act.
14
Therefore, he submitted that it is only after completion of investigation
and filing of charge sheet, the police will come to know that what are all
the offences committed in the case. He submitted that the allegation
made by the other side that it is Nagaraj who set up the complainant
after he was unsuccessful in the suit as well as in the private complaint, is
not correct and the complainant in this case has no connection with
regard to the proceedings said to have been initiated by Nagaraj. Hence,
he submitted that the decisions relied upon by the learned Senior
Counsel are not made applicable to the complaint, in view of the
allegations made in the complaint that there is encroachment on the
public road and thereby, there is loss to the government. Hence, the
learned counsel made submission that there is no case made out by the
petitioners for quashing the proceedings. Hence, the petitions may be
rejected. In support of his contentions, learned counsel for the
respondent complainant has relied upon the following decisions:
1. AIR 2008 SC (Supp) 441 “Swaran Singh Vs. State through Standing
Counsel”
15
2. AIR 2008 SC (Supp) 1503 “Central Bureau Of Investigation Vs K M
Sharan”.
3. AIR 1991 SUPREME COURT 1260 “State of Bihar Vs. P P Sharma”
4. (2004) 13 SCC 437 State of Punjab Vs. Subhash Kumar and other
5. AIR 1999 SUPREME COURT 3596 “Satvinder Kaur Vs. State
(Government of N.C.T. Of Delhi)”
6. AIR 2010 SUPREME COURT 1937 “Fuljit Karu Vs. State of
Punjab”
7. Basawaraj Vs. Land Acquisition Officer, (2013) 14 SCC 81
6. The learned Additional Advocate General representing the
respondent-State submitted that the petitioners-accused have tried to
widen the road only with an oblique motive to help the developers. The
averments made in the complaint would show that there is
encroachment on the public property and that, the developers have
constructed the building by encroaching the public property. He
submitted that looking to the offences against which FIR is registered,
BMTF had the jurisdiction to entertain the complaint and to investigate
16
into the matter. Regarding the petition filed by another accused in
criminal petition No.7543/2012, which is said to have been allowed by
the order of the learned Single Judge of this Court, it has not become
final as the respondents herein have challenged the said order in W.P.
No.47600/2014. He further submitted that as per Section 67 of the
KLR Act, all public roads are the public property and the complaint
averments also would show that the petitioners have also committed the
offence under Sections 192A and 192B of the KLR Act. Hence, he
submitted that it is not a case for quashing the proceedings as the
respondents have made out prima facie case which requires detailed
investigation into the matter and sought to reject the petitions.
7. In reply, Sri. C.V.Nagesh, the learned Senior Counsel,
submitted that no specific details are furnished by the respondents as to
which are the public properties encroached and only the bald and vague
allegations are made in the petitions. For the submission that the
complaint discloses the offences even under the provisions of the KLR
Act, the learned Senior Counsel submitted that, even then, the police
17
cannot register the case and cannot investigate into the matter. It is
further submitted that section 67 of the KLR Act is similar to that of
Section 321 of the KMC Act.
8. I have perused FIR, complaint, the grounds urged by the
petitioners in the respective petitions, objection statements filed by the
respondents to the said petitions and also the documents produced on
both sides in support of their contentions and the decisions relied upon
by both sides, which are referred above.
9. One L. Nagesh lodged complaint dated 13.11.2011 to the
Station House Officer, BMTF, Bengaluru. The averments of the
complaint in brief is that there is a Begur - Hulivmavu connecting road
in between the Hosur main road and Bannerghatta main road. It was
having 6 ft cart road as approach road as indicated in the village map.
The said road was widened to 40 ft. tar road that too illegally without
any acquisition when the urbanisation has its effect. The developers
have thought the area as a commercial hub. The builders like M/s.
18
Annabela builders and the developer private limited (DLF) and M/s.
Saudela Constructions (Hiranandani) with the help of politicians have
barged into the area by inducing the farmers. Bengaluru Revised Master
Plan-2015 was approved by the town and country planning authority and
it was proposed to develop the existing road from Begur to Hulimavu
connecting Bannerghatta to 18 mts. but still it was not materialized. It is
further averred that the developers by using their clouts were managing
to get 24 mts. road as against the 18 mts. proposed in revised master
plan-2015. There is also an allegation that it was started by Mr. Aravinda
Limbavali, the then Higher education minister who had issued a
direction to widen the road up to 24 mts. Further allegation goes show
that there is no demand from the villagers of the said area for widening
the road. But it is only to help the developers and the builders, the
respondents in collusion with the said builders are making an attempt to
widen the road up to 24 mts. The act of the respondents is against the
provisions of the KTCP Act and in violation of Bengaluru Revised
Master Plan-2015 and further in violation of the provisions of the KMC
Act. The developers have not only encroached the government property
19
but also encroached Kalyani, CA sites, rajakaluve and karab lands which
were evidenced by the press reports and also investigation order by the
Assistant Director vide their letter dated 12.7.2012 addressed to the Joint
Commissioner and sought for report about the encroachment of the
government land, the constructions of buildings violating the building
byelaws/government plan without leaving park, open space, CA sites
and also closed rajakaluve and sought for total station survey of the said
land with the assistance of revenue surveyor, revenue officer, ward
engineer and to prepare sketch. The report was submitted on 31.7.2012.
Hence, it is contended in the complaint that the respondent authorities
with intention to help the developers and the builders are making an
attempt to widen the road. On the basis of the said complaint, FIR was
registered for the alleged offences under section 119, 217, 218, 181, 197,
420 read with section 34 of IPC and sections 320, 321, 321(b) of KMC
Act, 1976 and section 76(fff) of the KTCP Act, 1961 registered in
BMTF crime No.203/2012.
20
10. Bengaluru Metropolitan Task Force (BMTF) has been
constituted by issuing proceedings of the government of Karnataka by
according sanction by order No.HD 247 MNU 95 Bengaluru dated
19.3.1996. The preamble of said notification reads as under:
“ PREAMBLE
It has come to the notice of the Government that
large scale attempts are made by land-grabbers to occupy
unauthorisedly the lands belonging to the Government, the
Bangalore City Corporation, the Bangalore Development
Authority, the Municipal Councils and the Slum Clearance
Board in Bangalore Metropolitan Area.
The Karnataka Municipal Corporations and certain
other laws (Amendment) Act, 1984 amended the Karnataka
Municipal Corporation Act, 1976, Karnataka Municipalities
Act, Bangalore Development Authority Act, Karnataka
Slum Clearance Act Prohibiting unauthorized occupation
of lands belonging to the Corporations, the Bangalore
Development Authority, the Municipal Council and the
unauthorized occupations were made punishable with
imprisonment for term which may extend to three years
and a fine which may extent to five thousand rupees.
21
In order to enforce these provisions effectively it has
been decided to establish a task force for prevention,
detection and investigation of offences and prosecution,
detection in unauthorized occupation in Bangalore
Metropolitan Area. It is proposed to post of the police
officers from the police Department on deputation and
declares the force as a police station to enable than to
register and investigate the cases.
Hence the order. ”
In the said notification, with regard to the function of the said task force,
it is mentioned about the detection of commission of any design of
committing an offence of investigation and prosecution of such offence
relating to unauthorised occupation of any land which is an offence
under the following enactments:
1. Karnataka Municipal Corporation Act, 1976
2. The Bengaluru Development Authority Act, 1976
3. The Karnataka municipality Act, 1964
4. The Bengaluru Water Supply and Sewerage Act, 1964
5. The Karnataka Slum Areas (Improvement and Clearance) Act, 1973
22
The said notification was amended from time to time and the following
enactments were also included:
1. The Karnataka Land Revenue Act, 1964,
2. The Karnataka SC ST (Prohibition of transfer of certain Lands act, 1978)
3. The Karnataka Land Reforms Act, 1961
4. Inam Abolition Act
5. Indian Penal Code
6. The Karnataka Police Act, 1963
7. The BMRDA Act, 1985
In the said notification, under government order No.UDD 349 MNU
2011, Bengaluru dated 2.2.2013, it is also made clear at para No.8 as
under:
“ BMTF can register a case and proceed with the
investigation of case if the facts contained in the complaint
disclose the offences under the special Acts mentioned in
G.O. NO.UDD 247 MNU 95 dated 19.3.1996 and those
mentioned above read with or without those relevant under
the Indian Penal code and the Karnataka Police Act. If the
complaint discloses commission of offences only under the
Indian Penal Code or under the Karnataka Police Act, then,
23
it will not be competent on the part of the BMTF to
proceed with the investigation thereof. ”
11. Referring to the notification issued by the government of
Karnataka, with regard to its powers and functions, now let me examine
as to what are the offences registered as per the FIR in this case. The
offences registered in the FIR are under the provisions of IPC, KMC
Act and KTCP Act. With regard to the offence under the provisions of
the KTCP Act, looking to the notification issued by the government of
Karnataka, there is no mention about the KTCP Act, 1961. So BMTF is
not authorized under the said notification to register the case and to
investigate into the matter for the offences under the provisions of the
KTCP Act, 1961. The remaining offences are under the provisions of
Sections 320, 321, 321(b) of KMC Act. The allegations in the complaint
are that the builders and developers have made the constructions by
encroaching upon the government land and the respondent authorities
have colluded with the builders and developers. During the course of the
arguments, learned counsel appearing for respondent No.2 complainant
made submission that the allegations made in the complaint have to be
24
taken into consideration before passing the order under Section 482
Cr.P.C to quash the proceedings. He submitted that looking to the
allegations in the complaint and also the report of the revenue inspector,
they clearly go to show that even the respondents have committed the
offences which fall under Section 192A of the KLR Act. In this
connection, learned counsel appearing for respondent complainant also
drew the attention of this Court to Section 67 of the KLR Act, which
reads as under:
67. Public roads, etc., and all lands which are not the
property of others belong to the Government.—(1) All
public roads, streets, lanes and paths, bridges, ditches, dikes
and fences, on or beside the same, the bed of the sea and
of harbours and creeks below high water mark and of
rivers, streams, nallas, lakes and tanks and all canals and
water-courses and all standing and flowing waters, and all
lands wherever situated which are not the property of
individuals or of aggregate of persons legally capable of
holding property, and except in so far as any rights of such
persons may be established, in or over the same, and except
as may be otherwise provided in any law for the time being
in force, are and are hereby declared to be with all rights in
25
or over the same or appertaining thereto, the property of
the State Government.
Explanation.—In this section, “high-water mark” means
the highest point reached by ordinary spring tides at any
season of the year.
(2) Where any property or any right in or over any property
is claimed by or on behalf of the State Government or by
any person as against the State Government, it shall be
lawful for the Deputy Commissioner or a Survey Officer
not lower in rank than a Deputy Commissioner, after
formal inquiry to pass an order deciding the claim.
(3) Any person aggrieved by an order made under sub-
section (2) or in appeal or revision therefrom may institute
a civil suit contesting the order within a period of one year
from the date of such order and the final decision in the
civil suit shall be binding on the parties.
12. Even if it is assumed for the purpose of appreciation of the
case without the petitioners admitting the said allegations that there are
offences committed even under the provisions of the KLR Act which
attract the penal provisions of the Section 192A of the KLR Act, then
26
the authorities before initiating criminal proceedings are suppose to
follow the procedure. In this connection, the learned Senior Counsel
Sri. C.V. Nagesh, relied upon the judgment of this Court reported in ILR
2008 KAR 4520. In the said decision, this Court has laid down the
proposition as under:
(A) CONSTITUTION OF INDIA – ARTICLES 226
AND 227 ALLEGATION OF ENCROACHMENT OF
GOVERNMENT LAND – Complaint by the Tahsildar –
Initiation of criminal proceedings before Jurisdictional
Magistrate against the petitioner – Grievance of the
petitioners, Criminal Prosecution is launched without
following the principles of natural justice – Prayer to quash
criminal proceedings – HELD, Principles of natural justice
demands that the petitioners ought to have been given an
opportunity to have their say in the matter- The
proceedings can not be sustained as the Tahsildar has
lodged the complaint without giving any such opportunity,
without conducting any survey in the presence of the
petitioner and the complaint was lodged merely on the
basis of the documents to which the petitioners are not
parties.
27
(B) KARNATAKA LAND REVENUE ACT, 1964 –
AMENDMENT – INTRODUCTION OF SECTION
192-A – Encroachment of Government Land – Allegation
– Complaint – Initiation of Criminal Proceedings –
Procedure require to be followed – HELD, Section 192-A
stipulates a procedure under which a show cause notice is
to be given calling upon those alleged encroachers to file
their objections within 15 days. If no objections are
received, authorities are called upon to visit the spot,
conduct a Mahazar in the presence of the villagers, obtain
their signatures and thereafter to initiate criminal
proceedings if they are satisfied that there is encroachment.
In the event of alleged encroachers producing documents
to examine the same and only in the event of the said
documents are found to be fabricated or duplicate, to
initiate proceedings under Section 192A of the Act. – As
the criminal prosecution is launched against all the
petitioners without affording an opportunity to have their
say and in the light of the circular which is passed by the
Government, the criminal proceedings cannot be sustained
– Hence, the proceedings are hereby quashed.
28
13. I have also perused the circular issued by the government of
Karnataka dated 8.9.2008 in No.RD 674 LGB 2008 which reads as
under:
“PÀ£ÁðlPÀ ¸ÀPÁðgÀ”
¸ÀASÉå: Dgïr 674 J¯ïf© 2008 PÀ£ÁðlPÀ ¸ÀPÁðgÀzÀ ¸ÀaªÁ®AiÀÄ, §ºÀĪÀĺÀrUÀ¼À PÀlÖqÀ ¨ÉAUÀ¼ÀÆgÀÄ, ¢£ÁAPÀ: 08.09.2008.
¸ÀÄvÉÆÛïÉ
«µÀAiÀÄ: MvÀÄÛªÀjAiÀiÁzÀ ¸ÀPÁðj d«ÄãÀ£ÀÄß vÉgÀªÀÅUÉƽ¸ÀĪÀ §UÉÎ * * * * *
¸ÀPÁðj d«ÄãÀÄUÀ¼À°è£À MvÀÄÛªÀjAiÀÄ£ÀÄß vÉgÀªÀÅUÉƽ¸ÀĪÀ ¸À®ÄªÁV PÀ£ÁðlPÀ s̈ÀÆ PÀAzÁAiÀÄ PÁAiÉÄÝUÉ wzÀÄÝ¥Àr vÀAzÀÄ PÀ®A 192(J)gÀ CrAiÀÄ°è C¥ÀgÁzsÀUÀ¼ÀÄ ªÀÄvÀÄÛ ²PÉëUÀ¼ÀÄ JA§ ºÉƸÀ CzsÁåAiÀĪÀ£ÀÄß ¸ÉÃ¥ÀðqÉ ªÀiÁqÀ¯ÁVgÀÄvÀÛzÉ. ¸ÀzÀj wzÀÄÝ¥Àr PÁAiÉÄÝAiÀÄ£ÀéAiÀÄ ¸ÀPÁðj d«Ää£À°è C£À¢üPÀÈvÀªÁV MvÀÄÛªÀj ªÀiÁrPÉÆArgÀĪÀªÀgÀ «gÀÄzsÀÝ Qæ«Ä£À¯ï ªÉÆPÀzÀݪÉÄUÀ¼À£ÀÄß zÁR®Ä ªÀiÁqÀĪÀ ªÀÄÄ£Àß ¸ÀA§A¢ü¹zÀªÀjUÉ CªÀgÀÄ ºÉÆA¢gÀĪÀ zÁR¯ÉUÀ¼À£ÀÄß ºÁdgÀÄ ¥Àr¸À®Ä MAzÀÄ CªÀPÁ±ÀªÀ£ÀÄß ¤ÃqÀĪÀÅzÀÄ CªÀ±ÀåªÉAzÀÄ ¸ÀPÁðgÀªÀÅ ªÀÄ£ÀUÀArzÉ. DzÀÝjAzÀ PÀ£ÁðvÀPÀ s̈ÀÆ PÀAzÁAiÀÄ PÁAiÉÄÝAiÀÄ PÀ®A 192(J)gÀ CrAiÀÄ°è MvÀÄÛªÀjzÁgÀgÀ «gÀÄzÀÞ Qæ«Ä£À¯ï ªÉÆPÀzÀݪÉÄUÀ¼À£ÀÄß zÁR®Ä ªÀiÁqÀĪÀ ªÀÄÄ£Àß F PɼÀPÀAqÀ ªÀiÁUÀð¸ÀÆaUÀ¼À£ÀÄß C£ÀĸÀj¸ÀĪÀAvÉ ¸ÀÆa¸À¯ÁUÀzÉ :-
1. ¸ÀPÁðj d«ÄãÀ£ÀÄß MvÀÄÛªÀj ªÀiÁrPÉÆArgÀĪÀÅzÁV w½zÀÄ §AzÀ vÀPÀët CAxÀ ªÀåQÛ / ¸ÀA¸ÉÜUÉ AiÀiÁªÀ DzsÁgÀzÀ ªÉÄÃ¯É D ¸ÀPÁðj d«Ää£À ¸Áé¢üãÀªÀ£ÀÄß ºÉÆA¢gÀÄwÛÃj JA§ §UÉÎ w½¹, CzÀPÉÌ ¸ÀA§AzsÀ¥ÀlÖ zÁR¯ÁwUÀ¼À£ÀÄß ¸ÀÆPÀÛ «ZÁgÀuÉAiÉÆA¢UÉ °TvÀ gÀÆ¥ÀzÀ°è 15 ¢£ÀUÀ¼ÉƼÀUÁV ¸ÀPÀëªÀÄ ¥Áæ¢üPÁgÀPÉÌ vÀ®Ä¦¸À®Ä w½¸ÀvÀPÀÌzÀÄÝ.
29
2. ¤UÀ¢üvÀ CªÀ¢üAiÉƼÀUÉ ¸ÀA§A¢ü¹zÀ MvÀÄÛªÀjzÁgÀgÀÄ AiÀiÁªÀÅzÉà zÁR¯ÉUÀ¼À£ÀÄß MzÀV¸ÀzÉà EzÀÝ°è ¸ÀPÀëªÀÄ ¥Áæ¢üPÁgÀªÀÅ ¤UÀ¢üvÀ PÁ¯ÁªÀ¢ü ªÀÄÄVzÀ £ÀAvÀgÀ MvÀÄÛªÀj ¸ÀܼÀPÉÌ s̈ÉÃn ¤Ãr UÁæªÀĸÀÜgÀ ¸ÀªÀÄPÀëªÀÄzÀ°è vÀ¤SÉ £Àqɹ MvÀÄÛªÀj JAzÀÄ
PÀAqÀħAzÀ°è ªÀĺÀdgï §gÉzÀÄ CzÀPÉÌ ºÁdjzÀÝ UÁæªÀĸÀÜgÀ ¸À»UÀ¼À£ÀÄß ¥ÀqÉzÀÄ vÀzÀ£ÀAvÀgÀ MvÀÄÛªÀjzÁgÀgÀ ªÉÄÃ¯É PÀ£ÁðlPÀ s̈ÀÆ PÀAzÁAiÀÄ PÁAiÉÄÝ PÀ®A 192(J)gÀrAiÀÄ°è Qæ«Ä£À¯ï
ªÉÆPÀzÀݪÉÄUÀ¼À£ÀÄß zÁR°¸À®Ä PÀæªÀÄ vÉUÉzÀÄPÉƼÀîvÀPÀÌzÀÄÝ.
3. MvÀÄÛªÀjzÁgÀgÀÄ £ÉÆÃnøÀÄ ¥ÀqÉzÀ £ÀAvÀgÀ PÀbÉÃjUÉ ¨sÉÃn ¤Ãr zÁR¯ÁwUÀ¼À£ÀÄß ºÁdgÀÄ¥Àr¹zÀ°è D zÁR¯ÁwUÀ¼À£ÀÄß ºÁdgÀÄ¥Àr¹zÀ°è D zÁR¯ÁwUÀ¼À £ÉÊdvÉAiÀÄ£ÀÄß «ªÀgÀuÉAiÉÆA¢UÉ PÀÆ®APÀĵÀªÁV ¥Àj²Ã°¹, zÁR¯ÁwUÀ¼À£ÀÄß £ÀPÀ®Ä CxÀªÁ ¸ÀȶÖvÀ JAzÀÄ PÀAqÀħAzÀ°è MvÀÄÛªÀjzÁgÀgÀ «gÀÄzÀÞ s̈ÀÆ PÀAzÁAiÀÄ PÁAiÉÄÝ PÀ®A 192(J)gÀrAiÀÄ°è Qæ«Ä£À¯ï ªÉÆPÀÌzÀݪÉÄ zÁR°¸À®Ä PÀæªÀÄ PÉÊUÉƼÀîvÀPÀÌzÀÄÝ.
¸À»/- r. vÀAUÀgÁeï ¸ÀPÁðgÀzÀ ¥ÀæzsÁ£À PÁAiÀÄðzÀ²ð PÀAzÁAiÀÄ E¯ÁSÉ ( s̈ÀÆ.ªÀÄA.).
14. Looking to the case on hand, it is not the case of the
complainant or respondent No.1 State that before registering the FIR in
this case, the procedure, as laid down in the aforesaid decision, has been
complied with. In that regard, no material has been placed by the
respondents that show cause notices were issued to the alleged
encroachers inviting their objections to be filed within 15 days. It is also
not the case of the respondents that they have filed their objections or
30
produced any documents and that they were considered. It is also not
the case of the respondents that after issuing notice to the alleged
encroachers survey proceedings were conducted in their presence.
Therefore, in the absence of such procedures followed by the
respondent State, only on the basis of the complaint lodged by
respondent-complainant, the BMTF cannot register the FIR and take up
the matter for investigation.
15. Even with regard to the alleged offences under he provisions
of the KMC Act, it is necessary to follow the due procedure as laid down
under Section 192A of the KLR Act and then only respondent No.1
State can come to the conclusion that whether really the offences
alleged under the provisions of the KLR Act and the KMC Act have
been committed or not with regard to the allegation of encroachment on
the public land. Without doing such exercise and only on the basis of
the allegations made in the complaint, it cannot be said that such
offences have been committed.
31
16. I have perused records of the case and the objections
statement filed by respondent No.1 State in W.P. No.49183/2012 so
also the objection statement filed on behalf of the BMTF in Crl.P.
No.7303/2012 clubbed with 7480/2012. Nowhere in the said objection,
it is mentioned that before registering the FIR, the due procedure as
contemplated under section 192A KLR Act and also the procedure
contemplated in the government circular mentioned has been complied
with by issuing show cause notice giving 15 days time to the alleged
encroachers to show cause as to why action should not be taken against
them. When such mandatory provisions under section 192A of the
KLR Act has not been followed in the case on hand, the contention of
the complainant as well as the respondent State that there is
encroachment on the government land cannot be accepted.
17. In view of the provisions under section 192A of the KLR Act
so also the government circular issued under the provisions of Section
192A of the KLR Act, there is a bar to the BMTF to register the FIRs
and to take up investigation in the matter. Therefore, when there is a
32
clear bar under the said provisions so also the government circular, it is
not necessary to refer to the other merits of the case.
18. Accordingly, I pass the following order:
(a) The writ petitions and the criminal petitions are allowed
and the proceedings in Cr.No.203/2012 registered by BMTF police
against the above petitioners are hereby quashed
(b) However, liberty is reserved to the State or its authorities to
comply with the requirements as contemplated in the circular before
initiating any action against the petitioners if need arises.
(c) All other contentions in the aforesaid petitions are kept
open to be adjudicated whenever the occasion arises.
Sd/-
JUDGE
Cs/-