Smt. B.R. Shantha vs The Deputy Commissioner and The Executive Engineer

A.S. Bopanna, J.—The petitioners in all these petitions are assailing the order dated 16.01.2013. The said order is a common order passed by the Deputy Commissioner, Chikkaballapura District in respect of the petitioners in all these petitions. In that view, the petitions are taken up together and disposed of by this common order. For the purpose of narration of facts, the writ petition in W.P. No. 4293/2013 is considered as the lead case and the facts stated therein are referred herein. The petitioners are claiming to be in possession and enjoyment of the extent of the properties referred to in the course of their petitions. At an earlier point, treating the petitioners as unauthorized occupants, certain action under Karnataka Public Premises (Eviction of Unauthorized Occupants) Act were initiated. The adverse order passed against the petitioners was assailed in an appeal provided under the said Act. On consideration, it was held that the authority under the Public Premises Act would not be the competent authority in the instant case inasmuch as the Act would not apply since the claim was that the petitioners are in occupation of certain portion of the properties which are designated as State Highway. It is in that circumstance, the present proceedings is initiated under the State Highways Act. The petitioners claiming to be aggrieved by the action to evict them from the properties had filed respective appeals before the Deputy Commissioner in R.A. (Misc.) Nos. 22, 27, 41, 42, 43, 45, 50 and 53 of 2008-09 under the Act. The appeals were pending for quite sometime and in that view, certain other persons had filed a Writ petition No. 39069/2012 before this Court seeking early disposal of the appeals filed by the petitioners.

Pursuant to the directions issued, the Deputy Commissioner has passed the impugned order dated 16.01.2013 which is impugned herein. The petitioner in W.P. No. 4293/2013 which I have indicated to be the lead case claims to be absolute and lawful owner of Shop bearing Municipal Khatha No. 432/407 situate at Eastern side of Chelur Road, II Division, Chintamani. The measurement of the property is indicated therein. The property is stated to have been acquired by Sri B.V. Ramalingaiah under a partition deed dated 24.03.1986. The earlier document relating to the ownership of the property by Sri Narayanaswamy Setty under a registered sale deed dated 22.10.1908 is referred therein. The transfer thereafter made under the sale deed dated 04.07.1913 to one Sri Venkateshaiah is also referred to.

The petitioner who claims right to the property presently contends that khatha has been in her name and the property has been assessed to tax and the tax is being paid by the petitioner. In that circumstance, the petitioner claims to be the owner of the property. As against the contention which has been put forth by the petitioner herein, a perusal of the order passed by the Deputy Commissioner which is impugned herein would indicate that the Deputy Commissioner in the major portion of the order has referred to the pleadings of each of the case as contended by the appellants therein and the gist of the consideration thereafter made is quite brief. The consideration therein is that the document produced by the State Highway Authorities, namely the sketch of the village drawn in the year 1922 would indicate that the survey number of the properties therein are indicated. On that basis, the subsequent sketch/plan of the year 2006 is also referred to. In that circumstance, taking note of the document of the year 1922, the Deputy Commissioner has assumed that the property to which the petitioners herein claim is within 2.40 to 6 meters as encroachment on the Highway. It is in that circumstance, the Deputy Commissioner has arrived at the conclusion that the order passed by the authorities seeking to evict the petitioners is justified.

In the circumstances noticed and also keeping in view the fact that the petitioners in the connected petitions are also claiming similar ownership rights based on the documents referred to by them, the very perusal of the order passed by the Deputy Commissioner would disclose, as against the sketch relied on by the Deputy Commissioner of the year 1922 there is absolutely no reference whatsoever to the document relied on by the petitioners nor is there a conclusion with regard to the right as claimed by the petitioners, more particularly when in the lead case I have noticed that the document claiming title dates back to the year 1908. Even in the absence of consideration of the documents of the petitioner, the conclusion as presently reached by the order by the Deputy Commissioner appears more in the nature of an assumption rather than a determination made based on the documents.

It is also the contentions of the petitioners that even the said document which has been referred to by the Deputy Commissioner which was relied on by the State Highway Authorities during the course of the proceedings were not furnished to the petitioners. The said contention would have to be accepted for the reasons that the same is not disclosed in the order nor has the Deputy Commissioner referred to any contentions that has been put forth by the petitioners either under the documents which were placed before the Deputy Commissioner or in rebuttal of the documents which were produced. All these aspects would lead to a conclusion that the Deputy Commissioner has not objectively decided the case after taking into consideration the contention put forth by the petitioners, except referring to the pleading in taking note of each of the appeals which were pending before him.

Furthermore, if in the event of the Deputy Commissioner finding that the actual location and situation of the land cannot be discerned by merely looking into the documents relied on by the petitioners or the documents relied on by the State Highway Authorities and if any factual determination by way of survey is required, the same would also be conducted before the rights of parties are determined. Therefore, the order dated 16.01.2013 impugned herein in the present form is not sustainable, the same is accordingly set aside and the matter is remitted to the Deputy Commissioner to restore the appeals in R.A. (Misc.) Nos. 22, 27, 41, 42, 43, 45, 50 and 53 of 2008-09 on file and reconsider the matter afresh after providing opportunity to the parties. In order to enable proper consideration and to avoid issue of fresh notices, the petitioners shall now voluntarily appear before the Deputy Commissioner without fresh notice. The respondents shall also appeal before the Deputy Commissioner on 28.10.2013 at 3.00 p.m. as the first date of hearing. If they fail to appear, the Deputy Commissioner will proceed in their absence. The Deputy Commissioner shall thereafter regulate the proceedings, consider and conclude the appeals in accordance with law as expeditiously as possible thereafter. Needless to mention, until the Deputy Commissioner arrives at a conclusion in accordance with law, the possession of the petitioners shall not be disturbed.

In terms of the above, the petitions stand disposed.