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2020 DIGILAW 1465 (KAR)

Rama v. Tahasildar, Haliyal

2020-07-22

S.G.PANDIT, V.SRISHANANDA

body2020
JUDGMENT V. Srishananda, J. - Though this writ petition is listed for preliminary hearing, with the consent of the learned counsel appearing for the parties, the same is taken up for final disposal. 2. The brief facts of the case, which are necessary for disposal of this writ petition is as under: The respondent-Tahasildar, Haliyal, Uttara Kannda District filed an application under Section 9(1) of the Karnataka Land Grabbing Prohibition Act, 2011 (for short "the Act") before the Karnataka Land Grabbing Prohibition Special Court at Bengaluru (for Short "the Special Court") contending that the writ petitioner is in possession of the Government Land in Block No.13 to the extent of 2 acres of Basavalli Village, Haliyal Taluk, Uttara Kannada District and the petitioner is un-authorisedly cultivating the said land. It is further contended that despite issuing notice at Annexure-A, the writ petitioner has failed to vacate the land and as such launched the prosecution under Section 4(3) of the Act against the writ petitioner. 3. After issuance of notice by the Special Court, the writ petitioner, who is accused, appeared before the Special Court. After recording the plea in order to prove the charges leveled against the accused-writ petitioner, the jurisdictional Tahasildar namely Vidyadhar Goneppa Golaguli got examined himself as PW1 and marked four documents as Exs.P1 to P4. Among Exs.P1 to P4, Ex.P1 is the complaint, Ex.P2 is the notice, Ex.P3 is the hand sketch and Ex.P4 is the ROR extract of the land in question. He also specifically stated in his examination-in-chief itself that he cannot identify the accused. 4. After conclusion of the evidence, the Special Court recorded the accused statement as contemplated under Section 313 of Cr.P.C. and no defence evidence was let in. 5. Based on the evidence placed by the Tahasildar, the Special Court convicted the accused-writ petitioner under Section 4(3) of the Act and sentenced him imprisonment for a period of one year and also directed to pay fine of Rs.5,000/- with default sentence of Simple Imprisonment for a period of one month. 6. Being aggrieved by the said judgment, the petitioner has preferred this writ petition contending that the Special Court erroneously passed the impugned conviction judgment produced at Annexure-F. 7. The writ petitioner further contends that the Special Court did not follow the procedure as contemplated under law for the trial of the cases under Section 4(3) of the Act. 6. Being aggrieved by the said judgment, the petitioner has preferred this writ petition contending that the Special Court erroneously passed the impugned conviction judgment produced at Annexure-F. 7. The writ petitioner further contends that the Special Court did not follow the procedure as contemplated under law for the trial of the cases under Section 4(3) of the Act. It is further contended that the evidence of PW1, the Tahasildar was hear-say evidence and in the absence of clinching evidence, the Special Court ought not to have convicted the writ petitioner. 8. In support of the contention raised, the writ petitioner relied upon the judgment of the Co-ordinate Bench of this Court in W.P.No.107303 of 2019 and connected matters, dated 25th June 2019, produced at Annexure-G and prays for allowing the writ petition in terms of the said order. 9. Per contra, the learned HCGP vehemently contended that the writ petitioner having been in un-authorized occupation of the land bearing Block No.13 to the extent of 2 acres of Basavalli Village, Haliyal Taluk, Uttara Kannada District, the Special Court has rightly convicted the accused-writ petitioner. 10. He further contends that the burden of proof is on the writ petitioner that he is not the land grabber. Therefore, the impugned judgment is perfectly valid and sought for dismissal of the writ petition. 11. After hearing the learned counsel appearing for the parties, the following point that would arise for our consideration: (i) Whether the writ petitioner has made out a case for setting aside the order passed by the Special Court, produced at Annexure-F? 12. We have carefully gone through the judgment passed by the Co-ordinate Bench of this Court in W.P.No.107303 of 2019 and connected matters produced along with the writ petition vide Annexure-G. The facts involved in the present case is almost akin to the facts involved in the judgment of the Co-ordinate Bench of this Court referred to supra. In the said writ petition also, prosecution was launched for the alleged land grabbing by the writ petitioner therein. It is pertinent to note that the very same Tahasildar namely Vidyadhar Goneppa Golaguli was also the Tahasildar, who had launched the prosecution in those cases. In those cases also the evidence of the Tahasildar alone was on record. 13. In the said writ petition also, prosecution was launched for the alleged land grabbing by the writ petitioner therein. It is pertinent to note that the very same Tahasildar namely Vidyadhar Goneppa Golaguli was also the Tahasildar, who had launched the prosecution in those cases. In those cases also the evidence of the Tahasildar alone was on record. 13. The Co-ordinate Bench of this Court after bestowing its attention to the definition of the Land Grabber and Land Grabbing as is found in Sections 2(e) and 2(f) of the Act and also Section 4, where there is prohibition of land grabbing, has clearly ruled that the evidence of Tahasildar alone was not sufficient enough to prove that the writ petitioners therein were to be termed as land grabber. 14. The Co-ordinate Bench also took into consideration that the non-examination of the person, who prepared the sketch and spot mahazar is a serious lacuna in the case of the prosecution and the evidence of the Tahasildar alone was not sufficient enough to prove the charges leveled against the writ petitioner therein. 15. In the present case also, on record, we have the evidence of the very same Tahasildar in the form of PW1 and the documents namely Exs.P1 to P4. 16. Admittedly, the hand sketch is not prepared by PW1 and it is prepared by the Village Accountant. What prevented the prosecution to examine village accountant, who prepared the hand sketch marked at Ex.P3 is not forthcoming on record. Admittedly, PW1 is not the author of Ex.P3, which is the prime document on which the prosecution has relied to prove the encroachment by the writ petitioner in Block No.13 to the extent of 2 acres of Basavalli Village, Haliyal Taluk, Uttara Kannada District. 17. Mere oral evidence of PW1 coupled with Exs.P1 to P4 is hardly sufficient to discharge the initial burden cast on the prosecuting agency in proving the fact that the writ petitioner is land grabber. 18. In the circumstances, we are of the opinion that the evidence on record in the present case is hardly sufficient to establish the fact that the petitioner is the land grabber and he has grabbed the land belonging to the Government. 19. 18. In the circumstances, we are of the opinion that the evidence on record in the present case is hardly sufficient to establish the fact that the petitioner is the land grabber and he has grabbed the land belonging to the Government. 19. We also notice from the writ petition that there is clear averment in paragraph No.6 of writ petition that the petitioner has not encroached any portion of the Government land is not in possession of the alleged land as is found in Ex.P2. 20. In view of the above, the decision rendered by the Co-ordinate Bench of this Court in W.P.No.107303 of 2019 and connected matters, is squarely applicable to the case on hand. 21. Accordingly, we hereby answer the point in affirmative and following order is passed: ORDER (1) Writ Petition is hereby allowed. (2) Impugned order dated 06.02.2019 passed in LGC(G) No.1477/2017, at Annexure-F is hereby set aside for reasons aforestated and also in the light of averments made in paragraph No.6 of writ petition stating that he has not encroached the Government land and admitting he is not in possession of said land. (3) The fine amount ordered to be paid by petitioner, if already deposited by the petitioner/accused, is ordered to be refunded by the jurisdictional Court to petitioner on producing the copy of this order. (4) The respondent would be at liberty to proceed against petitioner keeping in mind the observations made hereinabove and it would also be at liberty to take appropriate steps to protect the said lands belonging to the Government. (5) No order as to costs. All pending applications, if any, stand consigned to records.