Ramesh R. vs The Tahsildar

K.L. Manjunath, J.—The appellants are questioning the legality and correctness of the order passed by the learned Single Judge in WP No. 22773/2013 dated 10.07.2013.

The facts leading to this appeal are as here under:

"The petitioners claiming to be the owners of Sy. No. 109 situated at Amane Bellandur Khane Village, Vartur Hobli, Bangalore, filed the writ petition requesting the Court to issue a writ of mandamus directing the Tahsildar and the Deputy Commissioner to consider their representation vide Annexure-F to the writ petition dated 29.05.2013 in order to restrain respondent No. 3 from forming any road by closing the canal in the protected area of Amane Bellandur Khane Village."

According to the petitioners as per the Comprehensive Development Plan, Sy. No. 109 is declared to be reserved for industrial purpose and Sy. No. 81 is considered to be situated in sensitive zone since there exist a Raja kaluve (water body) which leads to Bellandur lake. Bellandur Lake is one of the live lake in Bangalore and it is considered to be one of the water bodies available in Bangalore City.

It is the case of the appellants that respondent No. 3 by encroaching the Raja kaluve, is trying to block the free flow of water to the Bellandur lake. Therefore, they requested the Tahsildar and the Deputy Commissioner to take action in accordance with law by considering their representation.

The learned Single Judge instead of considering the case of the petitioner either to issue writ of mandamus or not, has directed the Deputy Commissioner and the Tahsildar to allow respondent No. 3 to put up concrete slab as well as columns to protect the valley/canal for free flow of water so that he can construct a bridge to connect his property with the road in existence on the other side of the valley. Accordingly, the petition came to be disposed of.

We have heard Sri K. Shashikiran Shetty, Senior counsel for the appellants, Sri. Ajesh Kumar, learned counsel for the respondent No. 3 and Sri. D. Ashwathappa, learned AGA for R1 and R2.

The main contention of the learned counsel for the appellants is that learned Single Judge instead of considering the case of the appellants, has granted relief to respondent No. 3 in the writ petition allowing him to construct a bridge or cover the canal by putting up cement slab. Therefore, he contends that learned Single Judge has committed an error in granting relief to respondent No. 3 by wrongly applying the provisions of Section 68 of the Karnataka Land Revenue Act. According to him, Section 68 of the Karnataka Land Revenue Act has no application to the facts of the case. In the circumstances, he requests the Court to allow the appeal and set aside the order passed by the learned Single Judge and further request the Court to direct the Tahsildar and the Deputy Commissioner to consider the representation of the appellants vide Annexure-F to the writ petition.

Learned counsel appearing for respondent No. 3 contends that his client has not blocked the canal and according to him, there is no Raja kaluve or canal and that there exist a oni (path way) and therefore, he is entitle to use the oni to reach his property. In the circumstances, he contends that though Section 68 of the Karnataka Land Revenue Act has no application, the order passed by the learned Single Judge cannot be found fault with. In the circumstance, he requests the Court to dismiss the appeal.

Having heard the learned counsel for the parties, the only point to be considered by us is:

"Whether the learned Single Judge has committed an error in order to interfere with his order ?"

The contention of the appellants before the learned Single Judge was that they have given representation vide Annexure-F stating that respondent No. 3 encroaching water body is trying to erect a bridge. Therefore, they requested the Revenue Authority to hold an enquiry to take action in accordance with law. If the case of respondent No. 3 is that there is no water canal and that he is not trying to encroach any portion of the water body, it is for the Tahsildar to hear all the parties and find out whether any encroachment is being made by respondent No. 3 on the water body or not. Learned Single Judge without considering the case of both the parties, has wrongly applied Section 68 of the Karnataka Land Revenue Act and permitted respondent No. 3 to construct and put up the slab by rising columns on the canal. Considering the fact that the learned Single Judge has given finding that respondent No. 3 is permitted to rise columns and thereafter close the same by putting slab on the canal to connect the road, we are of the view that learned Single Judge has committed an error in granting relief to respondent No. 3 in writ petitions filed by the appellants. In addition to that a simple prayer of the appellants before the learned Single Judge was to direct the Revenue Authority to hold an enquiry in accordance with law in order to find out whether there is an encroachment on the canal and the water body. Therefore, we are of the view that learned Single Judge has committed an error in grating relief to respondent No. 3 and not considering the case of the appellants in the writ petitions.

Accordingly, the appeal is allowed. The order passed by the learned Single Judge in WP No. 22773/2013 dated 10.07.2013 is set aside. Respondent Nos. 1 and 2 are hereby directed to consider the representation of the appellants dated 29.05.2013 in accordance with law by giving opportunity to the appellants as well as to respondent No. 3. This exercise shall be done within a period of eight weeks from the date of receipt of copy of this order.

I.A. Nos. 2/2014 and 4/2014 do not survive for consideration. Hence, they are rejected.