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2003 DIGILAW 411 (KAR)

H. A. KRISHNA NAIK v. STATE OF KARNATAKA

2003-06-02

D.V.SHYLENDRA KUMAR

body2003
D. V SHYLENDRA KUMAR, J. ( 1 ) EVEN though this matter is listed for orders, with the consent of the learned Counsel for the parties, I have taken up the matter for final disposal. ( 2 ) THE petitioner has challenged the validity of notice dated 25-11-2002 issud by the 2nd respondent - Assistant Executive engineer, P. W. D. Sub Division, Moodigere, chickmagalur District, whereby the 2nd respondent had called upon the petitioner to vacate the premises pertaining to Building assessment No. 43/22 of Keremandala panchayath, Keregrama Village. The petitioner claims to be a tenant residing and carrying on his hotel business having taken on lease the premises from one Sri manjunath who is said to be the owner of the premises. ( 3 ) IT is the case of the petitioner, that the said Manjunatha had been given permission to construct residential as well as commercial premises by the panchayath and accordingly had constructed the same and after the said construction was over, with permission from the Panchayath, it had been given to the petitioner who has been residing since 1999 and that he has been running the hotel after obtaining necessary licence from the Panchayath. The said licence, it appears, has been issued by the panchayath in the year 2000 and has been renewed from time to time. The petitioner also contended that he has invested large amount of money for running his business in the premises and at this stage, he has been issued with the notice from the 2nd respondent on the premise that the building is built on the property belonging to PWD inasmuch as it is built within a distance of 40 mtrs. from the middle of the road which is a taluk road. The petitioner has also averred that there was an earlier litigation between the owner of the land and the Forest Department and that the Forest Department had taken action to vacate the owner of the land from the premises. The said owner had approached this Court by filing w. P. No. 40372/2002 and Forest Department had then retracted from the threatened action conceding that the property was not within the jurisdiction of the Forest Department and had apprised the P. W. D. may take action for eviction against the occupants of the building, which had been put up unauthorisedly on the road. It is the further case of the petitioner; that no other notice had been served before asking the petitioner to vacate the premises, that no action had been taken to vacate the petitioner from the building; that the respondents have been arbitrarily issuing notices to a few, while there are several other constructions located at the same distance from the middle of the road, and that no action has been taken and such selective action initiated discriminates against the petitioner. It is also contended on behalf of the petitioner that the road is neither a national highway nor a State highway, nor there should be a gap up to a distance of 40 mts. from the middle of the road and that there are several constructions which are in existence at a distance of 20 mtrs, in respect of whom no action has been taken by the respondents and as such has sought for quashing of the notice itself. ( 4 ) STATEMENT of objections has been filed on behalf of the 2nd respondent. It is contended by Sri B. P. Puttasiddaiah learned h. C. G. P. , on behalf of the respondents that the property on which the structure has been put up is a property of the Government and belongs to P. W. D. inasmuch as under certain notifications as per G. O. No. P. W. D. 362 C. R. M. 98 Dated 09-10-1998 and G. O. No. P. W. D. 43 C. R. M. 75 Dated 18-02-4976, it is specified that upto 40 mtrs from the middle of the road is the property belonging to PWD and as such the construction in question is unauthorised construction and action is proposed to be taken against the petitioner, who is in occupation of the building. It is also stated in the statement of objections that road boundary is fixed at 25 mtrs. in respect of Major District road and the building occupied by the petitioner comes even within this distance. However, it is admitted that the road in question is a taluk road, but it is stated that even taluk roads are subject to certain regulations and restrictions in the matter of constructions on the sides of the road and as per the G. O. No. PWD 46 CNH 88 dated 09-05-1988. However, it is admitted that the road in question is a taluk road, but it is stated that even taluk roads are subject to certain regulations and restrictions in the matter of constructions on the sides of the road and as per the G. O. No. PWD 46 CNH 88 dated 09-05-1988. Nevertheless the respondents also assert that the road has been upgraded into a Major District road long back and again upgraded to State Highway long back. A reading of the statement of objections indicates that the 2nd respondent is in total confusion and is unable to decide as to what kind of road, is the road on which the building occupied by the petitioner is located. Until and unless it is precisely indicated that the road is a particular type of road, the question of taking action against the petitioner for violation does not arise. The respondents have not been able to affirm as to what is the precise nature of the road or the category of the road on which the building of the petitioner is situated. The respondents even without being sure as to which category the road belongs to have rushed to take action as per notice dated 25-11-2002 and the statement of objections filed on behalf of the respondents does not in any way clarify the actual position nor indicate the legal basis for taking action against the petitioner. In the circumstances, the notice dated 25-11-2002 is obviously cooked up by the 2nd respondent for harassing the petitioner. ( 5 ) ACCORDINGLY, the writ petition is allowed. While reserving liberty to take such action as is available and open to them in law, strictly in accordance with law as per the relevant provisions applicable, the notice at Annexure A dated 25-11-2002 is hereby quashed by issue of a writ of certiorari. The 2nd respondent is imposed costs of Rs. 2,000/- to be recoverred personally from him and to be paid to the petitioner. Rule issued and made absolute. Petition allowed. --- *** --- .