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2020 DIGILAW 682 (KAR)

Arun Kumar Shetty v. M. Jayaram Shetty And Others

2020-03-09

ABHAY S.OKA, ASHOK S.KINAGI

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JUDGMENT Abhay Shreeniwas Oka; CJ. - The petitioner in the writ petition is the appellant in the writ appeal. The challenge in the writ petition filed in the nature of public interest litigation is to the order dated 15th July, 2019 passed by the Executive Officer, Taluk Panchayat, Kundapura Taluk. The fifth respondent has been granted CL-9 licence which was in operation when the petition was filed. 2. Before we refer to the order impugned, we must note that the said order was passed by the Executive Officer in an appeal preferred by the fifth respondent. The appeal was preferred by the fifth respondent for challenging the resolution passed by the concerned Gram Panchayat, by which an application made by the fifth respondent for grant of trade licence was kept in abeyance. In the appeal, an interim order was passed by the appellate authority staying the notice issued by the Gram Panchayat and directed renewal of the trade licence in favour of the fifth respondent after collecting arrears of all taxes and fees. A direction was also issued to maintain status quo. The fifth respondent preferred W.P. No. 27475/2019 for challenging the said interim order. By an order dated 1st July, 2019, the learned Single Judge directed the appellate authority to hear and dispose of the appeal. Accordingly, the order dated 15th July, 2019 impugned in Writ Petition No. 30488 of 2019 has been passed by the appellate authority. 3. In the above said order dated 15th July 2019, it is noted that the fifth respondent is carrying on business in building No. 1/63 situated on the land which was held by the Dakshina Kannada Zilla Panchayat, and by an order dated 23rd February, 2011, it was vested in Amasebailu Gram Panchayat (for short, 'the said Gram Panchayat'). It is observed in the said order that the premises in which the fifth respondent was carrying on business has been constructed by encroaching upon the land held by the Zilla Panchayat. The appellate authority observed that as the fifth respondent was carrying on business for the last 27 years, trade licence should be granted to him on a temporary basis which will be effective till the authorities take steps to clear the encroachment on the subject land in Survey No. 181/2A of the said Gram Panchayat measuring 4 acres 88 cents. The appellate authority observed that as the fifth respondent was carrying on business for the last 27 years, trade licence should be granted to him on a temporary basis which will be effective till the authorities take steps to clear the encroachment on the subject land in Survey No. 181/2A of the said Gram Panchayat measuring 4 acres 88 cents. It was further observed that the interim order passed by the appellate authority shall stand cancelled and the said order is subject to the result of Regular Second Appeal No. 1415 of 2018. At this stage, we must note here that the said Regular Second Appeal has nothing to do with the encroachment on the public property. Thus, in short, the appellate authority directed the said Gram Panchayat to issue trade licence to the fifth respondent on a temporary basis till the encroachment made by him was removed. It is this order dated 15th July, 2019 which is the subject matter of challenge in this writ petition. 4. This writ petition came up before a Division Bench of this Court on 9th September, 2019 when an ad interim order was passed directing that if the impugned order dated 15th July, 2019 is not acted upon by granting a temporary licence, the same shall not be acted upon. By the order dated 13th November, 2019, the Deputy Commissioner was directed to ensure that the fifth respondent does not carry on the business in the absence of a trade licence. Therefore, it was directed by this Court that if the fifth respondent was not possessing a trade licence, the Deputy Commissioner shall take appropriate steps to ensure that the fifth respondent does not act upon the CL-9 licence. 5. Thereafter, it was brought to the notice of this Court by the fifth respondent that W.P. No. 58282/2017 was filed in this Court by five petitioners for quashing CL-9 licence granted to the fifth respondent in respect of the same premises. The said writ petition was not entertained and by an order dated 1st June, 2018, it was observed that the liquor vending outlet of the fifth respondent was existing since 2005-06 and therefore, the Court was not inclined to entertain the petition. The said writ petition was not entertained and by an order dated 1st June, 2018, it was observed that the liquor vending outlet of the fifth respondent was existing since 2005-06 and therefore, the Court was not inclined to entertain the petition. It was pointed out by the fifth respondent that the father of the present petitioner was the fourth petitioner in the said writ petition and the fact of filing of the said petition, to which his father was one of the petitioners, was suppressed. This fact was noted in the order dated 19th December, 2019 passed by this Court. At that time, it was brought to the notice of this Court that based on the interim orders passed by this Court, the Deputy Commissioner had passed an order dated 19th November, 2019 directing closure of the business of the fifth respondent. The order of closure was passed, perhaps, on the basis of the order dated 13th November, 2019 passed in the writ petition. An observation was made by this Court in its order dated 19th December, 2019 that the fifth respondent is free to challenge the order passed by the Deputy Commissioner on 19th November, 2019. 6. Accordingly, a writ petition, being Writ Petition No. 52817 of 2019 was filed by the fifth respondent before the learned Single Judge. In the said writ petition, the challenge was to the said order dated 19th November, 2019. The said petition was disposed of by an order dated 17th January, 2020 in which the learned Single Judge noted that the resolution passed by the Gram Panchayat dated 27th August, 2019 resolving to grant a trade licence to the fifth respondent and several others was in force. Therefore, the learned Single Judge observed that the order of the Deputy Commissioner dated 19th November, 2019 calls for reconsideration by the Deputy Commissioner. It was also observed that the said order was subject to final orders passed in the public interest litigation. This order is the subject matter of challenge in the Writ Appeal No. 85 of 2020. 7. Now firstly, we will deal with the issue whether the writ petition filed in the nature of public interest litigation is maintainable at the instance of the petitioner. It is undisputed that W.P. No. 58282 of 2017 was filed by five petitioners, out of whom the fourth petitioner was the father of the present petitioner. 7. Now firstly, we will deal with the issue whether the writ petition filed in the nature of public interest litigation is maintainable at the instance of the petitioner. It is undisputed that W.P. No. 58282 of 2017 was filed by five petitioners, out of whom the fourth petitioner was the father of the present petitioner. Though the challenge was to the grant of CL-9 licence, there were specific allegations and grounds taken in the writ petition that the premises in respect of which the licence was granted was a Government land which cannot be used for commercial activities and that the fifth respondent in the present writ petition (who was the eighth respondent in the earlier writ petition) has constructed a building without obtaining the requisite permission. It is alleged that the Deputy Commissioner (Excise) granted CL-9 licence without verifying all these facts. Thus, in the petition filed in the year 2017 in the nature of a public interest litigation to which the father of the present petitioner was one of the petitioners, the challenge was to the grant of CL-9 licence to the fifth respondent in the present writ petition on the ground that the premises in respect of which licence was granted, was on a public property and without obtaining the requisite permission, the premises has been constructed. 8. We must note here that the said writ petition was not entertained, as can be seen from the order dated 1st June, 2018. However, liberty was granted to the petitioners to take recourse to the remedies available in accordance with law. 9. In our view, it was the duty of the petitioner to bring it to the notice of this Court the fact of filing the earlier writ petition to which his father was one of the petitioners, wherein the grounds of challenge in substance were the same, namely that the premises in respect of which licence has been granted to the fifth respondent in the present writ petition was illegally constructed by encroaching upon the public property. Even assuming that the petitioner was not aware of the fact of filing of the earlier petition, by filing an affidavit on 9th January, 2020, he tried to dispute the signature of his father on the vakalath in the earlier writ petition by contending that the signature of his father was in Kannada, though he normally used to sign in English language. Today, the learned counsel appearing for the petitioner, after the expiry of two months from the date of filing of the affidavit, states that he has kept a memo ready for deleting the relevant paragraphs in the said affidavit. As stated earlier, even assuming that the petitioner was not aware of the filing of the petition by his father, when the said fact of filing of the earlier writ petition was brought to the notice of this Court, instead of immediately accepting his mistake, he tried to raise a suspicion about the signature of his father on the vakalath filed in the earlier writ petition. As stated earlier, the order impugned in the present writ petition is challenged on the ground that the premises in which the fifth respondent is carrying on business on the basis of CL-9 licence in a premises which has been constructed by encroaching upon public property. 10. Therefore, in view of suppression of material facts that the petitioners father was one of the petitioners in the writ petition filed for challenging CL-9 licence on the same grounds on which this petition is filed, it cannot be said that the petitioner is a pro bono litigant and the writ petition cannot be entertained at his instance. 11. Nevertheless, it is an admitted position that the building in which the fifth respondent is carrying on his business on the basis of CL-9 licence, has been constructed by encroaching upon the land belonging to Zilla Panchayat. Therefore, the effect of the order dated 15th July, 2019 impugned in the writ petition is that till the encroachment is removed, a temporary trade licence is granted to the fifth respondent, as he is carrying on business for several decades. 12. Therefore, the effect of the order dated 15th July, 2019 impugned in the writ petition is that till the encroachment is removed, a temporary trade licence is granted to the fifth respondent, as he is carrying on business for several decades. 12. Though we are not entertaining this petition as a public interest litigation at the instance of the petitioner, the State Government and Zilla Panchayat/Gram Panchayat must take all possible lawful steps to remove the encroachment on the public property and to ensure that the public property is used for lawful purposes. 13. Subject to what is directed above, we decline to entertain the writ petition and the same is disposed of. 14. Now coming to the writ appeal, the fifth respondent in the writ petition who is the first respondent in the writ appeal, challenged the order dated 19th November, 2019. The said order was not set aside or interfered with by the learned Single Judge, but he directed reconsideration of the said order in the light of the admitted position that there is a resolution of Gram Panchayat dated 27th August, 2019 which provides for grant of a trade licence to several traders including to the fifth respondent in the present writ petition, and the said resolution is in force. The only order made is of reconsideration of the order dated 19th November, 2019. 15. It must also be noted here that for challenging the resolution dated 27th August, 2019, an appeal is pending. Thus, the only direction in the order impugned in the appeal is reconsideration of the order dated 19th November, 2019 in the light of the resolution of the Gram Panchayat dated 27th August, 2019. Therefore, no interference is called for with the order which is an equitable and discretionary order passed by the learned Single Judge. Though we are not entertaining the appeal, we make it clear that the appeal against the resolution dated 27th August, 2019 passed by the Gram Panchayat shall be decided on its own merits. 16. Subject to what is observed above, no case for interference is made out in the writ appeal and accordingly, the writ appeal is disposed of. All the contentions of the parties are kept open.