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2022 DIGILAW 1286 (KAR)

H. Mahesh v. City Municipal Council

2022-09-27

ASHOK S.KINAGI

body2022
JUDGMENT 1. Petitioner aggrieved by the order dtd. 22/8/2022 passed in M.A.No.44/2022 on the file of 4th Addl. District and Sessions Judge (Commercial Court) Ballari, confirming the order dtd. 18/2/2022 passed by the respondent under Sec. 5 of the Karnataka Public Premises (eviction of unauthorized occupants) Act, 1974 (hereinafter referred to as 'the Act', for short). 2. Brief facts leading rise to filing of this writ petition are as under: One M. Pandurang Shetty was the owner of the land in Sy.No.374/2 measuring 21 acres 43 guntas. The said land got converted into non-agricultural. The said M. Pandurang Shetty applied for formation of layout plan and the layout plan was approved. Thereafter the said M. Pandurang Shetty got formed a layout in Sy.No.374/2 and after formation of layout, he sold the sites to the intending purchasers. The petitioner is the one of the purchasers from the said M. Pandurang Shetty. The petitioner purchased the site No.262 formed in the Sy.No.374/2 measuring 40x30 situated at Ward No.30, Siraguppa under the registered sale deed dtd. 7/6/2016. The respondent issued a notice calling upon the petitioner to demolish the house constructed in the area which is earmarked for park and playground. The petitioner submitted a detailed reply to the said notice. The competent authority, after due enquiry, passed an order under Sec. 5 of the Act directing the petitioner to demolish the building and to handover the vacant possession of the same. The petitioner aggrieved by the same, preferred an appeal in M.A.No.44/2022. The appellate Court after considering the material on record, dismissed the appeal filed by the petitioner. Hence, this writ petition. 3. Heard the learned counsel for petitioner and learned counsel for respondent. 4. Learned counsel for petitioner submits that the Director, Planning Authority, Bengaluru approved the layout plan vide order dtd. 20/4/1995 and the said layout plan was modified vide Annexure-C by the respondent. As per the modified layout plan, the area which was demarcated for park and playground etc. permitted to form residential sites. He submits that the owner of the said land has not surrendered the site which had reserved for park and playground in favour of the respondent. He submits that the respondent has initiated proceedings only against few purchasers. There is no process of handing over the possession of the sites. permitted to form residential sites. He submits that the owner of the said land has not surrendered the site which had reserved for park and playground in favour of the respondent. He submits that the respondent has initiated proceedings only against few purchasers. There is no process of handing over the possession of the sites. He submits that the sites under reference does not fall within the definition of 'public premises' as defined under the Act. The proceedings initiated under the Act is without jurisdiction. The said aspect has not been considered by the appellate Court. He further submits that the petitioner after obtaining the construction permission has constructed the building. Hence, on these grounds, he prays to allow the writ petition. 5. Per contra, learned counsel for respondent submits that the original owner Sri M. Pandurang Shetty filed W.P.No.67950/2010. He submits that the original owner has pleaded in the writ petition that he has already handed over the civic amenities sites reserved for park, roads and playground in favour of the respondent in the year 1995-96 itself. He submits that the said writ petition came to be disposed of reserving liberty to the original owner to make an application for modification of layout plan to the Urban Development Authority. Further, it was clarified that modification of layout excluding the areas demarcated for park, roads and playground. He submits that the original owner without getting approval of modified layout plan from the Urban Development Authority has sold the sites situated in the area demarcated for park and playground. He placed reliance on the order passed by the Coordinate Bench of this Court in W.P. No.100862/2012 wherein similarly placed petitioners filed the writ petition challenging the eviction proceedings initiated by the respondent. Hence, he submits that the proceedings initiated by the respondent are in accordance with law. He submits that when the original owner himself has admitted that he has handed over the possession of civic amenities sites, question of accepting the contention of the petitioner that the owner has not handed over the civic amenities sites park, playground etc. would not arise. Further he submits that the petitioner himself has submitted a representation to the respondent admitting about the construction undertaken by him in the area demarcated for park and playground. would not arise. Further he submits that the petitioner himself has submitted a representation to the respondent admitting about the construction undertaken by him in the area demarcated for park and playground. In view of the said undertaking, the petitioner is not entitled for any relief as claimed in the writ petition. Hence, he prays to dismiss the writ petition. 6. Heard and perused the records and considered the submissions of the learned counsel for parties. 7. It is not in dispute that one M. Pandurang Shetty was the owner of land bearing R.S.No.374/2 measuring 21 acres 43 guntas. The said land was got converted into non-agricultural. The said M. Pandurang Shetty applied for formation of sites. The said layout plan was approved by the Director, Planning authority, Bengaluru dtd. 20/9/1995 subject to conditions. The respondent has produced the copy of the layout plan which was approved on 26/3/1995. From the perusal of the layout plan discloses that property under reference had been demarcated for playground and park. The original owner M. Pandurang Shetty without getting the modified layout plan approved from the Urban Development Authority has formed sites illegally and sold the same in favour of the petitioner and others. Further the said M. Pandurang Shetty has filed W.P.No.67950/2010 and in the memorandum of the said writ petition, he has clearly admitted that he has already handed over the vacant land reserved for civic amenities and has been transferred in the year 1995-1996. The original owner undertaken to handover the vacant spaces and executed an undertaking on Rs.10.00 bond paper. Further the said writ petition came to be disposed of reserving liberty to the original owner to make a representation and directed the Urban Development Authority to consider his representation under the provisions of the Karnataka Urban Development Authority Act, 1987 and to pass an order in accordance with law excluding the areas demarcated for open spaces, park and roads. The said M. Pandurang Shetty without handing over the area demarcated for open space, park and roads, has formed sites illegally without getting approval from the competent authority as observed by the Court in the aforesaid writ petition and sold the sites in favour of the petitioner and others. Further one of the purchasers has filed writ petition in W.P.No.100862/2022. This Court dismissed the said writ petition. 8. Further one of the purchasers has filed writ petition in W.P.No.100862/2022. This Court dismissed the said writ petition. 8. The respondent has produced the copy of representation submitted by the petitioner wherein the petitioner has admitted that he has put up construction over the area demarcated for park and playground in the layout plan. The petitioner has produced the documents to establish that the said layout plan was modified by an administrative approval vide Annexure-C. The original owner M. Pandurang Shetty filed a writ petition in W.P.No.67950/2010. This Court dismissed the said writ petition and observed that if the original owner makes a representation to the Urban Development Authority, Siraguppa, constituted under the Karnataka Urban Development Authority Act, 1987, having jurisdiction over Siraguppa, to consider the representation and to pass order in accordance with law without, however, modified plan insofar as it relates to the areas demarcated for open space, park and roads. The petitioner has produced Annexure-C dtd. 8/6/1995. The original owner Sri M. Pandurang Shetty filed a writ petition in the year 2010 in W.P.No.67950/2010. The respondent has produced the copy of memorandum of writ petition. It creates a doubt about the genuineness of Annexure-C. Further, the said alleged modified layout plan has not been approved by the Urban Development Authority, Siraguppa. Annexure-C produced by the petitioner is not approved by the competent authority. The respondent has produced the layout plan. From the perusal of the layout plan, property under question demarcates open space, park and playground which is reserved for public at large for recreation, enjoyment, ventilation, fresh air in accordance with the approved plan. The said plan cannot be sacrificed by leasing or selling such sites to the private persons like the petitioner for conversion to some other users. The petitioner has failed to establish that the area demarcated for park and playground was converted into residential sites. 9. The said plan cannot be sacrificed by leasing or selling such sites to the private persons like the petitioner for conversion to some other users. The petitioner has failed to establish that the area demarcated for park and playground was converted into residential sites. 9. The property under reference falls within the definition of 'premises' under Sec. 2(c) of the Act which reads as under: 2(c) "premises" means any land or any building or part of a building and includes- (i) the garden, grounds and outhouses, if any, appertaining to such building or part of a building, and (ii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof; Sec. 2(e) of the Act reads as under: (e) "public premises" means- (1) any premises belonging to, or taken on lease or requisitioned by, or on behalf of the Central Government, and includes any such premises which have been placed by that Government, whether before or after the commencement of the Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 1980 (61 of 1980), under the control of the Secretariat of either House of Parliament for providing residential accommodation to any member of the staff of that Secretariat; 10. 'Premises' means any land or building includes any garden, grounds and outhouses and 'public premises' means any property belongs to the State Government or a local authority. 11. Admittedly, in the instant case, the property under reference falls within the definition of 'premises' and further, it belongs to respondent as per Sec. 2(e) of the Act. The respondent taking into account the property under reference falls within the definition of 'public premise' issued a show cause notice under Sec. 4 of the Act. The petitioner submitted a reply to the show cause notice. The competent authority considered the material on record and passed an order of eviction under Sec. 5 of the Act. In the similarly placed petitioners have filed writ petitions in W.P.Nos.100862/2022 and 102685/2021 in respect of the same area. The said writ petitions came to be dismissed by the Co-ordinate Bench of this Court vide order dtd. 21/3/2022 and 24/8/2022 respectively. 12. The Hon'ble Supreme Court in S.KASI V. STATE THROUGH THE INSPECTOR OF POLICE, SAMAYNALLUR POLICE STATION, MADURAI DISTRICT (Crl. Appeal No.452 of 2020 dt.19/6/2020) has held that the judgment passed by the Coordinate Bench has a binding effect on latter bench. 21/3/2022 and 24/8/2022 respectively. 12. The Hon'ble Supreme Court in S.KASI V. STATE THROUGH THE INSPECTOR OF POLICE, SAMAYNALLUR POLICE STATION, MADURAI DISTRICT (Crl. Appeal No.452 of 2020 dt.19/6/2020) has held that the judgment passed by the Coordinate Bench has a binding effect on latter bench. Paragraphs 31 and 32 which are relevant are extracted below :- "31. Learned single judge in the impugned judgment has taken a contrary view to the earlier judgment of learned single judge in Settu v. The State (supra). It is well settled that a coordinate bench cannot take a contrary view and in event here was any doubt, a coordinate bench only can refer the matter for consideration by a Larger Bench. The judicial discipline ordains so. This Court in State of Punjab and another v. Devans Modern Breweries Ltd. And another (2004) 11 SCC 26 , in paragraph 339 laid down following :- "339. Judicial discipline envisages that a coordinate bench follow the decision of an earlier coordinate Bench. If a coordinate Bench does not agree with the principles of law enunciated by another Bench, the matter may be referred only to a larger Bench. (See Pradip Chandra Parija v. Pramod Chandra Patnaik, (2002) 1 SCC 1 Devi, (2002) 7 SCC 273 . But no decision can be arrived at contrary to or inconsistent with the law laid down by the coordinate Bench. Kalyani Stores (supra) and K.K.Narula (supra) both have been rendered by the Constitution Benches. The said decisions, therefore, cannot be thrown out for any purpose whatsoever; more so when both of them if applied collectively lead to a contrary decision proposed by the majority" 32. Learned Single Judge did not follow the judicial discipline while taking a contrary and diagonally opposite view to one which have been taken by another learned Single Judge in Settu versus The State (Supra). The contrary view taken by learned Single Judge in the impugned judgment is not only erroneous but also sends wrong signals to the State and the prosecution emboldening them to act in breach of liberty of a person." 13. In view of the law laid down by the Hon'ble Apex court in above referred judgment, In order to maintain judicial discipline envisages that a coordinate Bench follows the decision of a earlier coordinate bench. I respectfully concur with the order passed in W.P.No.100862/2022 and W.P.No.102685/2021. 14. In view of the law laid down by the Hon'ble Apex court in above referred judgment, In order to maintain judicial discipline envisages that a coordinate Bench follows the decision of a earlier coordinate bench. I respectfully concur with the order passed in W.P.No.100862/2022 and W.P.No.102685/2021. 14. The appellate Court after considering the material on record and also orders passed by this Court was justified in dismissing the appeal filed by the petitioner. Hence, I do not find any ground to interfere with the impugned order. 15. In view of the above discussion and considering the orders passed in the aforesaid writ petitions, the writ petition is hereby dismissed.