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2023 DIGILAW 1233 (KAR)

J. B. Ananda v. State of Karnataka

2023-10-25

SURAJ GOVINDARAJ

body2023
JUDGMENT 1. The petitioner is before this Court seeking for the following reliefs: a. Issue a writ in the nature of mandamus or any other appropriate writ directing the respondent No.2, Deputy Commissioner, to consider the letter dtd. 15/12/2020, issued by the commanding officer of Indian Army, copy submitted at Annexure-H and further representation dated, 21/1/2021, and 1/3/2021, made by the petitioner addressed to the Respondent No.3, Deputy Commissioner, copies submitted at Annexure-J and J1. b. And further direct the Respondent No.5-Executive Officer, to consider the Appeal (representation) dtd. 26/11/2020, made by the petitioner's mother for necessary change in the Katha No.9 and 11A as per the sale deed and survey, report copy and submitted at Annexure-E. c. Issue a writ in the nature of Mandamus or any other appropriate writ directing the Respondent No.2-Deputy Commissioner, to initiate Disciplinary proceedings, who illegally reduced the extant in Form 9 and 11A katha of the property copy submitted at Annexure-D and D1, and who illegally cut and remove the three coconut trees. d. Pass such other order/s as this Hon'ble Court deems fit to grant under the circumstances of the case, in the interest of justice and equity. 2. The petitioner claims to be a Sepoy working in the Indian Army posted at Gangtok, Sikkim. The petitioner originally hails from Jabagere village, Chikkadaganahally post, Gavadgare Hobli, Hunsur taluk, Mysuru District. The petitioner's father had on 23/12/2002 purchased a property measuring East to West 84 ft North to South 60 ft bearing katha and Janjar No.136 and Assessment No.149. Name of the petitioner's father was entered into katha demand register and he had been making payment of necessary taxes in relation thereto. Subsequently, the petitioner's father not being able to maintain the property, the katha was transferred in the name of the mother of the petitioner viz., Smt.Dakshayini who managed the property, put up the construction of a house by taking loan, as well as availing the applicable benefits in relation to the construction of house. 3. On an application being made for issuance of e-katha, the measurement in the e-katha issued came to be reduced by respondent No.7 from 84 ft to 75 ft on East to West and from 60 ft to 45 ft on North to South. 3. On an application being made for issuance of e-katha, the measurement in the e-katha issued came to be reduced by respondent No.7 from 84 ft to 75 ft on East to West and from 60 ft to 45 ft on North to South. In pursuance thereof the petitioner had given a representation for himself and his mother (she being of old age and not being able to take care of the property) through his Company Commander which was in turn forwarded to the District Magistrate/Deputy Commissioner, Mysuru District. A further representation was also submitted by the petitioner to the Deputy Commissioner, Asst. Commissioner, Chief Executive Officer, Panchayat Development Officer, Tahsildar, etc, in relation to the same, despite which no action was taken and it is in that background that the petitioner is before this Court seeking for the aforesaid reliefs. 4. On an earlier occasion, this Court observing that there is a claim made by the government over a portion of the property, had vide its order dtd. 15/11/2022 directed the learned AGA to obtain instructions and make her submission. In pursuance thereto, a memo with a letter dtd. 8/9/2023 addressed by the Tahsildar to the learned AGA has been filed and on that basis, as also the instructions received from the Tahsildar, learned AGA submits that the State is not laying any claim over any portion of the property of the petitioner, it is the panchayat who has reduced the area taking into account the demand made by certain private parties to provide one metre passage/gap between the house of the petitioner and a temple and as such, the State not having any claim is made clear. 5. Sri.B.J.Somayaji, learned counsel for respondents No.4, 5 and 7 i.e. Chief Executive Officer, Executive Officer and Panchayat Development Officer would submit that there was a breach of peace apprehended in the said area, there was a demand made by a particular community for making available One mtr. land in between the house of the petitioner and temple, in pursuance of which a peace meeting was held on 1/12/2020 and the following decisions were taken: A) When the members of the village as also the officers had accepted said demand and decided to leave one mtr. land in between the house of the petitioner and temple, in pursuance of which a peace meeting was held on 1/12/2020 and the following decisions were taken: A) When the members of the village as also the officers had accepted said demand and decided to leave one mtr. of space between the property of the petitioner and the temple; B) For making a road 9 ft in width in the property of the panchayat to provide another access to petitioner's property; C) To remove the coconut trees situate in between the house of the petitioner and the temple. 6. This peace meeting having been held under the Presidentship of the Tahsildar was attended by Executive officer, Social Welfare Officer, Hunsur Circle Inspector, Hunsur, Circle Inspector, Sub- Inspector, Deputy Tahsildar, PDO, Revenue Inspector, Village Accountant, the Panchayat Secretary and the residents of the village. The above decision was given effect to and as such, he submits that the action having been taken under the Presidentship of the Tahsildar and it cannot be said that the state has nothing to do with it. 7. Learned AGA in reply would submit that the Tahsildar was only invited for the peace meeting and being high ranking officer was designated as the President, the decision has been taken by the Panchayat and the Tahsildar has no role to play and as per the information available with the Tahsildar the decisions were taken to buy peace and as such, she submits that those decisions were subsequently implemented. 8. Heard learned counsel for the parties and perused papers. 9. It is not in dispute that there was a peace meeting which was held on 1/12/2020 and the aforesaid three decisions were taken in the said peace meeting. Though there is a submission made by Sri.B.J.Somayaji, learned counsel that the measurement of the property of the petitioner is not clear, a perusal of the sale deed in favour of vendor of the petitioner and from vendor to the father of the petitioner would indicate and establish that the property measures 84 ft from East to West and 60 ft from North to South. The property having been assessed to tax, the taxes have also been paid by the petitioner. The property having been assessed to tax, the taxes have also been paid by the petitioner. The katha in respect of the said property earlier standing in the name of the father of the petitioner and subsequently in the name of the mother of the petitioner is also not in dispute. 10. It is on the basis the demand made by certain villagers that one mtr. of space between the property of the petitioner and the temple was decided to be made available by cutting the coconut trees situate therein. The photographs produced by the petitioner at Annexure-F series would also indicate that the said coconut trees which were fully grown have also been cut. 11. On enquiry with Sri.B.J.Somayaji as to under what provision a peace meeting was held, he submits that the said meeting was held in order to assuage the demands made and to see to it that there is no conflict which develops. I am of the considered opinion that the State or the instrumentalities of the State cannot be heard to say that they will buy peace and they will assuage the demand made by any Sec. of a community, which virtually in this case is a mob. It is required for the State and its instrumentalities including its officers to apply the law as it is and not aid in the said law being violated by any Sec. of the society/mob. In this particular matter, by trying to assuage the demands made, the interest of the petitioner in his property has been completely violated and the land of the petitioner has been sought to taken over to an extent of One mtr. width through out the length of the property of the petitioner and the size of the property has been reduced in the e-katha which has been issued. 12. If at all there is a demand by one Sec. of the society for making available One mtr. Width, it was for the Panchayat or State to have taken steps to acquire the land and make it available if permissible under law. 12. If at all there is a demand by one Sec. of the society for making available One mtr. Width, it was for the Panchayat or State to have taken steps to acquire the land and make it available if permissible under law. In the present matter, nothing of the kind has been done except in the peace meeting, a unilateral decision has been taken by the officers of the Panchayat and the State at the behest of a Sec. of the society depriving the petitioner and his family one mtr width of their personal property and cutting the fully grown coconut trees, which in my considered opinion is akin to the fence eating the crop inasmuch as the Authorities which are required to protect the petitioner and preserve his land, have aided, abetted and participated in violation of the applicable law. 13. In that view of the matter, I am of the further considered opinion that the respondent No.1-Prl. Secretary, Department of Revenue is required to hold necessary enquiry into the matter to ascertain and fix responsibility on the persons responsible for violation of the applicable law. Necessary enquiry to be completed within a period of 90 days after hearing the concerned, following the principles of natural justice and applicable disciplinary rules and regulations. 14. In that view of the matter, I pass the following: ORDER i. The writ petition is allowed, reliefs sought for are moulded. ii. A mandamus is issued, respondent No.2 is directed to remove the fencing which has been put up on the property of the petitioner separating the property of the petitioner and the existing temple and shift it to the boundaries earmarking 84 ft x 60 ft, if necessary by taking police help within 30 days from receipt of a copy of this order. iii. The respondents are directed to rectify and issue an e-katha for the above property measuring 84 ft x 60 ft within a period of 30 days from the date of receipt of copy of this order. iv. Ten officers who were present in the said peace meeting are directed to individually from their own pockets make payment of a sum of Rs. 10, 000.00 each, totally amounting to Rs. One lakh to the petitioner towards destruction of fully grown coconut trees within a period of 30 days from the date of receipt of copy of this order.