B.H. Gururaj and Others vs The Chief Secretary, Government of Karnataka and Others

A.S. Bopanna, J—Learned Government Advocate to accept notice for respondents No. 1 to 6. Sri A. Nagarajappa, learned counsel, accepts notice for R. 7. Copies be served. They are permitted to file memo of appearance in four weeks.

The petitioners are before this Court seeking for issue of writ in the nature of prohibition to restrain the respondents from unlawfully and illegally demolishing the building of the petitioners along side of main road, Belur Town, Hassan District and dispossessing the petitioners from the schedule premises and taking any other coercive steps without following due procedure of law as has been held in W.P. No. 27955/2009 and connected petitions.

The petitioners claim to be the tenants under the 7th respondent in respect of the properties which has been referred to in the schedule to the petitions. The lease deeds have been produced along with the petitions and the manner of enjoyment of the property is also stated therein.

The grievance of the petitioners is that the respondents without complying with the due process of law or by duly compensating the petitioners in accordance with law are making an attempt to demolish certain buildings of the petitioners and encroaching upon the property of the petitioners in order to widen the road. It is in that view, the petitioners apprehending that the buildings may be demolished as has been done in other cases, is before this Court.

Though several contentions have been urged, the details of the same need not be gone into when it has not been shown by the respondents that due process of law has been complied. In such circumstance, this Court on taking note of similar contentions by the order dated 16.11.2011 in W.P. No. 27955/2009 and connected petitions has laid down the manner in which the consideration is to be made if ultimately the property of the owner is to be utilized for the public purpose of widening the road. The direction as issued in the said case reads as hereunder:

"The ends of justice would be met by passing the following order:

i) The Deputy Commissioner of Tumkur District shall hold the enquiry and take a decision as to whether the properties in question belong to the petitioners or are vested in the Municipal Council.

ii) The petitioners shall appear before the Deputy Commissioner on 7.12.2011 without waiting for any notice from him. On the said day (7.12.2011) the petitioners shall produce the documents in support of their claims regarding the extent and ownership of their properties.

iii) The City Municipal Council shall also appear on the said day and furnish the documents in support of its claims that the properties in question are vested in it. Further, if any of the petitioners'' title deeds, etc., are with the City Municipal Council, the same shall also be produced by it before the Deputy Commissioner. It is also open to the petitioners to apply for the copies of any documents under the Right to Information Act, 2005 and obtain them and produce the same before the Deputy Commissioner.

iv) It is made clear that it is open to the Deputy Commissioner to take the assistance of the Tumkur Urban Development Authority.

v) On holding the enquiry, the Deputy Commissioner shall pass the order in the matter of rival claims being advanced by the City Municipal Council and the petitioners.

vi) If, on holding the enquiry the Deputy Commissioner is satisfied that the properties in question belong to the petitioners, they cannot be utilised for the road-widening purpose unless (a) they are compulsorily acquired, or (b) they are purchased after holding private negotiations with the petitioners or (c) on taking them on lease basis, etc.

vii) If the Deputy Commissioner on holding the enquiry finds that the properties in question belong to the City Municipal Council and that the petitioners have encroached them, the competent authorities are bound to evict them, but in a manner known to law.

viii) The Deputy Commissioner shall pass the appropriate orders within six weeks'' from today. All the parties shall co-operate with the Deputy Commissioner in the speedy disposal of the disputes raised or to be raised.

ix) If the petitioners are not satisfied with the order, which may eventually be passed by the Deputy Commissioner, it is always open to them to approach the Civil Court. The Deputy Commissioner and/or the competent authorities shall not enforce the order for a period of one week from the date of the issuance of the order to the petitioners."

In the instant case, no doubt the petitioners claim to be tenants under the 7th respondent. Even if that be so, without determining the tenancy in accordance with law, forcible possession by way of demolition cannot be taken. Therefore, if at all the premises is required for the purpose of demolition, the 7th respondent would have to follow the due process of law to take lawful possession of the premises from the tenants and until such procedure is followed, no demolition shall be made. Hence with similar directions (as issued in the aforementioned writ petition) to the respondents to comply with the procedure and not to interfere with the enjoyment of the properties by the petitioner without the said process being followed, the petitions stand disposed of.