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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 24TH DAY OF FEBRUARY 2015

BEFORE

THE HON'BLE MR. JUSTICE BUDIHAL R.B.

WRIT PETITION No.49183/2012 C/W

CRIMINAL PETITION No.7565/2012 C/W

CRIMINAL PETITION No.7249/2012 C/W

CRIMINAL PETITION No.7303/2012 C/W

WRIT PETITION No.50406/2012

IN WRIT PETITION No.49183/2012

BETWEEN : Sri Shiva Kumar K M S/o Late K H Mahadevappa Aged about 61 years R/o Villa No. 129 Adarsh Palm Retreat Devarabeesanahalli Bangalore-560 103. ... PETITIONER

(By Sri K Shashikiran Shetty, Sr. Counsel For Sri Pavan G N & Farah Fathima for M/s. Shetty and Hegde Associates, Advs.)

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AND : 1. State of Karnataka Through Station House Officer Bangalore Metropolitan Task Force N R Square Bangalore-560 002. Rep. by S.P.P, High Court. 2. Sri L Nagesh S/o Sri N Lakshmana Aged about 35 years R/o No. 783, Hogebandi Garden Begur Hulimavu Road Bangalore-560 052. ... RESPONDENTS

(By Sri A G Shivanna, AGA for R1, By Sri Ramesh Chandra for R2)

This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the FIR bearing No.203/2012 dated 13.11.2012 against the petitioner and others accused for alleged offences under Section 119, 217, 218, 181, 197M 420 read with Section 34 of the I.P.C. and 320, 321 and 321(b) of the K.M.C Act, 1976 and Section 76 (FFF) of the Karnataka Town and Country Planning Act 1961, Vide Annexure-A And etc.,

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IN CRIMINAL PETITION No.7565/2012

BETWEEN: 1. Sri T N Chikkarayappa Aged about 51 years S/o Sri S Narayanappa R/at No.546, 1st Main Road 3rd Block Dollar Colony RMV 2nd Stage Bangalore. Former Chief Engineer, BBMP. 2. Sri Somashekara S/o Sri Sannaswamy Aged about 52 years No. 307, Canara Bank Colony Nagarbavi Road Bangalore-560 072. Present Chief Engineer, BBMP. 3. Sri M C Lakshmisha Aged about 48 years R/at No.48, 8th Cross

J C Nagar Mahalakshmipuram Bangalore-560 086. Present Executive Engineer, BBMP. .. PETITIONERS

(By Sri H S Dwarakanath, Adv.) AND: 1. Sri L Nagesh

Aged about 35 years

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S/o Sri N Lakshmana R/at Begur Village Begur Hobli Bangalore South Taluk.

2. State of Karnataka By Bengaluru Metropolitan Task Force. Represented by its

State Public Prosecutor High Court Building Bangalore-560 001. .. RESPONDENTS

(By Sri. A G Shivanna, AGA for R2 Sri Ramesh Chandra, Adv. For R1)

This criminal petition is filed under Section 482 Cr.P.C. praying to

quash F.I.R. in Cr.No.203/2012 on the file of the C.M.M., Bangalore vide Annexure-A, in so far as the petitioners.

IN CRIMINAL PETITION No.7249/2012

BETWEEN:

1. Sri H R Ravichandra Aged about 45 years S/o Late R Rajashekar Reddy R/at No. 551, 16th A Main 3rd Block, Koramangala Bangalore-560 034.

2. Smt Kastoori Aged about 62 years W/o Dr. G Krishna Reddy R/at No. 748, 18th a Main

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6th Block, Koramangala Bangalore-560 095. .. PETITIONERS

(By Sri H S Dwarakanath, Adv.) AND: 1. Sri L Nagesh

Aged about 35 years S/o Sri N Lakshmana R/at Begur Village Begur Hobli Bangalore South Taluk.

2. State of Karnataka By Bengaluru Metropolitan Task Force. Represented by its

State Public Prosecutor High Court Building Bangalore-560 001. .. RESPONDENTS

(By Sri. A G Shivanna, AGA for R2 Sri Ramesh Chandra, Adv. For R1)

This criminal petition is filed under Section 482 Cr.P.C. praying to

quash F.I.R. in Cr.No.203/2012 on the file of the C.M.M., Bangalore vide Annexure-A, in so far as the petitioners.

IN CRIMINAL PETITION No.7303/2012 BETWEEN: M/S SUADELA CONSTRUCTIONS PRIVATE LTD. A Company incorporated under the Companies Act 1956

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Having its registered office at No.514, Dlamal Towers Nariman Point Mumbai-400 021 And Branch Office at No.50, Outer Ring Road Vijaya Bank Colony Banswadi Bangalore-560 043 Represented by its Authorised Signatory Sri C R Prakash .. PETITIONER (By Sri C.V. Nagesh, Senior Counsel For Sri. K. Suman, Adv.) AND: 1. State of Karnataka By the Police Sub Inspector BMTF Police Station Bangalore-560 002. 2. Sri L Nagesh Major in Age S/o Lakshmana No.783 Hogebandi Garden Begur Hulimavu Road Bangalore-560 068. .. RESPONDENTS (By Sri. A G Shivanna, AGA for R2 Sri Ramesh Chandra, Adv. For R1)

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This criminal petition is filed under Section 482 Cr.P.C. praying to quash the complaint filed by the 2nd respondent and the F.I.R. registered by the 1st respondent/police Sub Inspector, BMTF Police Station in Cr.No.203/2012 for the offences punishable under Sections 119, 217, 218, 181, 197, 420 read with Section 34 of IPC and Section 320, 321, 321(b) of the Karnataka Municipal Corporation Act and Section 76 (FFF) of Karnataka Town and Country Planning Act and all further proceedings thereon as against the petitioner.

IN WRIT PETITION No.50406/2012

BETWEEN : Mr. Pradeep Singh Khorala S/o Late B.B.S. Khorala Aged 51 years Principal Secretary to the Chief Minister Government of Karnataka Vidhana Soudha Bangalore-560 001. ... PETITIONER

(By Sri Venkatesh Murthy, Adv. For M/s. Poovayya and Co., Advs.) AND : 1. State of Karnataka Represented by its Principal Secretary to Government Urban Development Department Vikasa Soudha Bangalore-560 001. 2. Bangalore Metropolitan Task Force BBMP Main Building

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NR Square, N R Road Bangalore-560 002. 3. Mr Nagesh S/o Mr Lakshmana R/o No. 783, Hogebandi Garden Begur Hulimavu Road Bangalore-560 076. ... RESPONDENTS

(By Sri A G Shivanna, AGA for R1-2, By Sri Ramesh Chandra, Adv. for R3)

This writ petition is filed under Articles 226 of the Constitution of India praying to call for records in Cr.No.203/2012 on the file of the Hon’ble Chief Metropolitan Magistrate, Bangalore and etc.

These petitions having been heard and reserved for orders, coming on for pronouncement of judgment, this day, the Court delivered the following:

ORDER

The petitioners have filed these petitions under Articles 226 and

227 of the Constitution of India read with Section 482 of Cr.P.C.

requesting the Court to issue writ or order or direction in the nature of

certiorari or any other appropriate writ or order or direction for

quashing FIR bearing No.203/2012 dated 13.11.2012 against the

petitioners in the petitions for the alleged offences under Sections 119,

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217, 218, 181, 197M, 420 r/w. Section 34 of IPC and Sections 320, 321

and 321(b) of Karnataka Municipal Corporation Act, 1976 (for short ‘the

KMC Act’) and under Section 76(FFF) of the Karnataka Town and

Country Planning Act, 1961 (for short ‘the KTCP Act’), to issue writ,

order or direction in the nature of certiorari or any other appropriate

writ, order or direction for quashing complaint dated 13.11.2012 filed by

respondent No.2 and to issue writ, order or direction in the nature of

mandamus declaring the act of respondent No.1 in registering the FIR

bearing No.203/2012 dated 13.11.2012 against the petitioners as an

abuse of process of law and an act of ultra vires.

2. Heard the arguments of Sri. C.V. Nagesh, learned Senior

Counsel appearing for the petitioner in Crl.P. 7303/2012, and the

learned counsel appearing for the petitioners in other petitions. I have

also heard the arguments of the learned Additional Advocate General

for the respondent-State as also the learned counsel for respondent-

complainant.

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3. The first and foremost contention of the learned Senior

Counsel Sri. C.V. Nagesh is that Bengaluru Metropolitan Task Force

(hereinafter referred to as ‘BMTF’) has no jurisdiction to register the FIR

and to take up the matter for investigation. He submitted that the

allegation in the complaint that the petitioners by encroaching the public

land illegally have taken steps to widen the road and in the said process,

there is encroachment of the public land, is totally baseless. The owners

of the lands have executed the deed of relinquishment in favour of

corporation authorities. One Nagaraj filed a suit in O.S. No.1231/2011

before the Court of Civil Judge at Bengaluru in respect of the said

dispute wherein he had also sought for an order of temporary injunction

against the defendants therein. The application I.A. No.1 filed in the

said suit was dismissed after considering the merits of the case. He

submitted that there afterwards, a private complaint under Section 200

Cr.P.C. was also filed and the matter was referred by the learned

Magistrate to the police as per 156(3) of the Cr.P.C. After investigation

of the matter, ultimately, the police have filed ‘B’ report in the said case.

As the said Nagaraj was not succeeded, in his efforts both in suit as well

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as in private complaint, he set up his brother to file present complaint

before the BMTF in crime No.203/2012. The learned Senior Counsel

further submitted that BMTF can entertain the complaint, register the

FIR and investigate the offences in respect of which there is a

notification by the Government of Karnataka authorizing the BMTF to

register the FIR and to investigate into the matter. So far as the present

FIR is concerned, there is no authorisation by the government to register

the case and investigate into the offences under the KTCP Act. Even

with regard to the offences alleged under the provisions of the KMC

Act, they are not at all the offences and no investigation can be

conducted by the BMTF. If the offences under the provisions of the

KTCP Act and the KMC Act are excluded, the remaining offences are

only under the IPC and the BMTF is not competent to enquire into or

investigate in respect of offences under IPC, even according to the

notification issued by the government of Karnataka. The learned Senior

Counsel further submitted that looking to the complaint averments, no

doubt, it is alleged that the offences are also committed under the

provisions of Sections 192A and 192B of the Karnataka Land Revenue

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Act (hereinafter referred to as ‘the KLR Act’). In this connection also,

assuming for the sake of appreciation of arguments, a procedure is

prescribed and the said procedure is to be followed before registering

the FIR, and an opportunity is to be given to the land owners and

alleged encroachers. After getting their say and after considering their

reply in the matter, still if the government feels that such offences are

committed under the provisions of the KLR Act, then FIR can be

registered for the said offences and which procedure is not followed in

this case. Hence, he submitted that even considering the case on merits

also, there is no prima facie case made out by the respondents in

registering the FIR as against the petitioners herein. Hence, he submitted

to allow the petitions and to quash the proceedings. In support of his

contentions, the learned Senior Counsel has relied upon the following

decisions:

1. AIR 2008 SC 247 (Para-17) - All Cargo Movers (I) Pvt. Ltd. Vs. Dhanesh Badarmal Jain and another 2. AIR 2008 SC 2462 (Para-12) - M Saravana Porselvi Vs. A R Chandrasekar and Others

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3. Unreported Judgment dated 10.10.2013 in Crl.P.No.5340/2012 in case of G D Jayarama and Another Vs. The State 4. ILR 2008 KAR 4520 - (Smt Lalitha Sastry Vs. State of Karnataka)

4. Learned counsel appearing for petitioners in other petitions

have adopted the arguments of the learned Senior Counsel Sri. C.V.

Nagesh and in addition to that, they submitted that the complaint was

filed and FIR was registered with mala fide intention and there is no

prima facie case made out by the prosecution. Accordingly, they

submitted to quash the FIR by allowing the petitions.

5. Per contra, learned counsel appearing for respondent-2

complainant, during the course of arguments made the submission that,

in the earlier proceedings, complainant was not a party and hence, those

proceedings are not binding on the complainant in this case. He has also

submitted that the investigating officer has to take into consideration as

to what are the allegations made in the complaint. The complaint

averments not only show the commission of the offences under the

provisions of KTCP Act, KMC Act and IPC, but also shows the

offences committed under Sections 192A and 192B of the KLR Act.

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Therefore, he submitted that it is only after completion of investigation

and filing of charge sheet, the police will come to know that what are all

the offences committed in the case. He submitted that the allegation

made by the other side that it is Nagaraj who set up the complainant

after he was unsuccessful in the suit as well as in the private complaint, is

not correct and the complainant in this case has no connection with

regard to the proceedings said to have been initiated by Nagaraj. Hence,

he submitted that the decisions relied upon by the learned Senior

Counsel are not made applicable to the complaint, in view of the

allegations made in the complaint that there is encroachment on the

public road and thereby, there is loss to the government. Hence, the

learned counsel made submission that there is no case made out by the

petitioners for quashing the proceedings. Hence, the petitions may be

rejected. In support of his contentions, learned counsel for the

respondent complainant has relied upon the following decisions:

1. AIR 2008 SC (Supp) 441 “Swaran Singh Vs. State through Standing

Counsel”

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2. AIR 2008 SC (Supp) 1503 “Central Bureau Of Investigation Vs K M

Sharan”.

3. AIR 1991 SUPREME COURT 1260 “State of Bihar Vs. P P Sharma”

4. (2004) 13 SCC 437 State of Punjab Vs. Subhash Kumar and other

5. AIR 1999 SUPREME COURT 3596 “Satvinder Kaur Vs. State

(Government of N.C.T. Of Delhi)”

6. AIR 2010 SUPREME COURT 1937 “Fuljit Karu Vs. State of

Punjab”

7. Basawaraj Vs. Land Acquisition Officer, (2013) 14 SCC 81

6. The learned Additional Advocate General representing the

respondent-State submitted that the petitioners-accused have tried to

widen the road only with an oblique motive to help the developers. The

averments made in the complaint would show that there is

encroachment on the public property and that, the developers have

constructed the building by encroaching the public property. He

submitted that looking to the offences against which FIR is registered,

BMTF had the jurisdiction to entertain the complaint and to investigate

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into the matter. Regarding the petition filed by another accused in

criminal petition No.7543/2012, which is said to have been allowed by

the order of the learned Single Judge of this Court, it has not become

final as the respondents herein have challenged the said order in W.P.

No.47600/2014. He further submitted that as per Section 67 of the

KLR Act, all public roads are the public property and the complaint

averments also would show that the petitioners have also committed the

offence under Sections 192A and 192B of the KLR Act. Hence, he

submitted that it is not a case for quashing the proceedings as the

respondents have made out prima facie case which requires detailed

investigation into the matter and sought to reject the petitions.

7. In reply, Sri. C.V.Nagesh, the learned Senior Counsel,

submitted that no specific details are furnished by the respondents as to

which are the public properties encroached and only the bald and vague

allegations are made in the petitions. For the submission that the

complaint discloses the offences even under the provisions of the KLR

Act, the learned Senior Counsel submitted that, even then, the police

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cannot register the case and cannot investigate into the matter. It is

further submitted that section 67 of the KLR Act is similar to that of

Section 321 of the KMC Act.

8. I have perused FIR, complaint, the grounds urged by the

petitioners in the respective petitions, objection statements filed by the

respondents to the said petitions and also the documents produced on

both sides in support of their contentions and the decisions relied upon

by both sides, which are referred above.

9. One L. Nagesh lodged complaint dated 13.11.2011 to the

Station House Officer, BMTF, Bengaluru. The averments of the

complaint in brief is that there is a Begur - Hulivmavu connecting road

in between the Hosur main road and Bannerghatta main road. It was

having 6 ft cart road as approach road as indicated in the village map.

The said road was widened to 40 ft. tar road that too illegally without

any acquisition when the urbanisation has its effect. The developers

have thought the area as a commercial hub. The builders like M/s.

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Annabela builders and the developer private limited (DLF) and M/s.

Saudela Constructions (Hiranandani) with the help of politicians have

barged into the area by inducing the farmers. Bengaluru Revised Master

Plan-2015 was approved by the town and country planning authority and

it was proposed to develop the existing road from Begur to Hulimavu

connecting Bannerghatta to 18 mts. but still it was not materialized. It is

further averred that the developers by using their clouts were managing

to get 24 mts. road as against the 18 mts. proposed in revised master

plan-2015. There is also an allegation that it was started by Mr. Aravinda

Limbavali, the then Higher education minister who had issued a

direction to widen the road up to 24 mts. Further allegation goes show

that there is no demand from the villagers of the said area for widening

the road. But it is only to help the developers and the builders, the

respondents in collusion with the said builders are making an attempt to

widen the road up to 24 mts. The act of the respondents is against the

provisions of the KTCP Act and in violation of Bengaluru Revised

Master Plan-2015 and further in violation of the provisions of the KMC

Act. The developers have not only encroached the government property

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but also encroached Kalyani, CA sites, rajakaluve and karab lands which

were evidenced by the press reports and also investigation order by the

Assistant Director vide their letter dated 12.7.2012 addressed to the Joint

Commissioner and sought for report about the encroachment of the

government land, the constructions of buildings violating the building

byelaws/government plan without leaving park, open space, CA sites

and also closed rajakaluve and sought for total station survey of the said

land with the assistance of revenue surveyor, revenue officer, ward

engineer and to prepare sketch. The report was submitted on 31.7.2012.

Hence, it is contended in the complaint that the respondent authorities

with intention to help the developers and the builders are making an

attempt to widen the road. On the basis of the said complaint, FIR was

registered for the alleged offences under section 119, 217, 218, 181, 197,

420 read with section 34 of IPC and sections 320, 321, 321(b) of KMC

Act, 1976 and section 76(fff) of the KTCP Act, 1961 registered in

BMTF crime No.203/2012.

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10. Bengaluru Metropolitan Task Force (BMTF) has been

constituted by issuing proceedings of the government of Karnataka by

according sanction by order No.HD 247 MNU 95 Bengaluru dated

19.3.1996. The preamble of said notification reads as under:

“ PREAMBLE

It has come to the notice of the Government that

large scale attempts are made by land-grabbers to occupy

unauthorisedly the lands belonging to the Government, the

Bangalore City Corporation, the Bangalore Development

Authority, the Municipal Councils and the Slum Clearance

Board in Bangalore Metropolitan Area.

The Karnataka Municipal Corporations and certain

other laws (Amendment) Act, 1984 amended the Karnataka

Municipal Corporation Act, 1976, Karnataka Municipalities

Act, Bangalore Development Authority Act, Karnataka

Slum Clearance Act Prohibiting unauthorized occupation

of lands belonging to the Corporations, the Bangalore

Development Authority, the Municipal Council and the

unauthorized occupations were made punishable with

imprisonment for term which may extend to three years

and a fine which may extent to five thousand rupees.

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In order to enforce these provisions effectively it has

been decided to establish a task force for prevention,

detection and investigation of offences and prosecution,

detection in unauthorized occupation in Bangalore

Metropolitan Area. It is proposed to post of the police

officers from the police Department on deputation and

declares the force as a police station to enable than to

register and investigate the cases.

Hence the order. ”

In the said notification, with regard to the function of the said task force,

it is mentioned about the detection of commission of any design of

committing an offence of investigation and prosecution of such offence

relating to unauthorised occupation of any land which is an offence

under the following enactments:

1. Karnataka Municipal Corporation Act, 1976

2. The Bengaluru Development Authority Act, 1976

3. The Karnataka municipality Act, 1964

4. The Bengaluru Water Supply and Sewerage Act, 1964

5. The Karnataka Slum Areas (Improvement and Clearance) Act, 1973

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The said notification was amended from time to time and the following

enactments were also included:

1. The Karnataka Land Revenue Act, 1964,

2. The Karnataka SC ST (Prohibition of transfer of certain Lands act, 1978)

3. The Karnataka Land Reforms Act, 1961

4. Inam Abolition Act

5. Indian Penal Code

6. The Karnataka Police Act, 1963

7. The BMRDA Act, 1985

In the said notification, under government order No.UDD 349 MNU

2011, Bengaluru dated 2.2.2013, it is also made clear at para No.8 as

under:

“ BMTF can register a case and proceed with the

investigation of case if the facts contained in the complaint

disclose the offences under the special Acts mentioned in

G.O. NO.UDD 247 MNU 95 dated 19.3.1996 and those

mentioned above read with or without those relevant under

the Indian Penal code and the Karnataka Police Act. If the

complaint discloses commission of offences only under the

Indian Penal Code or under the Karnataka Police Act, then,

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it will not be competent on the part of the BMTF to

proceed with the investigation thereof. ”

11. Referring to the notification issued by the government of

Karnataka, with regard to its powers and functions, now let me examine

as to what are the offences registered as per the FIR in this case. The

offences registered in the FIR are under the provisions of IPC, KMC

Act and KTCP Act. With regard to the offence under the provisions of

the KTCP Act, looking to the notification issued by the government of

Karnataka, there is no mention about the KTCP Act, 1961. So BMTF is

not authorized under the said notification to register the case and to

investigate into the matter for the offences under the provisions of the

KTCP Act, 1961. The remaining offences are under the provisions of

Sections 320, 321, 321(b) of KMC Act. The allegations in the complaint

are that the builders and developers have made the constructions by

encroaching upon the government land and the respondent authorities

have colluded with the builders and developers. During the course of the

arguments, learned counsel appearing for respondent No.2 complainant

made submission that the allegations made in the complaint have to be

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taken into consideration before passing the order under Section 482

Cr.P.C to quash the proceedings. He submitted that looking to the

allegations in the complaint and also the report of the revenue inspector,

they clearly go to show that even the respondents have committed the

offences which fall under Section 192A of the KLR Act. In this

connection, learned counsel appearing for respondent complainant also

drew the attention of this Court to Section 67 of the KLR Act, which

reads as under:

67. Public roads, etc., and all lands which are not the

property of others belong to the Government.—(1) All

public roads, streets, lanes and paths, bridges, ditches, dikes

and fences, on or beside the same, the bed of the sea and

of harbours and creeks below high water mark and of

rivers, streams, nallas, lakes and tanks and all canals and

water-courses and all standing and flowing waters, and all

lands wherever situated which are not the property of

individuals or of aggregate of persons legally capable of

holding property, and except in so far as any rights of such

persons may be established, in or over the same, and except

as may be otherwise provided in any law for the time being

in force, are and are hereby declared to be with all rights in

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or over the same or appertaining thereto, the property of

the State Government.

Explanation.—In this section, “high-water mark” means

the highest point reached by ordinary spring tides at any

season of the year.

(2) Where any property or any right in or over any property

is claimed by or on behalf of the State Government or by

any person as against the State Government, it shall be

lawful for the Deputy Commissioner or a Survey Officer

not lower in rank than a Deputy Commissioner, after

formal inquiry to pass an order deciding the claim.

(3) Any person aggrieved by an order made under sub-

section (2) or in appeal or revision therefrom may institute

a civil suit contesting the order within a period of one year

from the date of such order and the final decision in the

civil suit shall be binding on the parties.

12. Even if it is assumed for the purpose of appreciation of the

case without the petitioners admitting the said allegations that there are

offences committed even under the provisions of the KLR Act which

attract the penal provisions of the Section 192A of the KLR Act, then

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the authorities before initiating criminal proceedings are suppose to

follow the procedure. In this connection, the learned Senior Counsel

Sri. C.V. Nagesh, relied upon the judgment of this Court reported in ILR

2008 KAR 4520. In the said decision, this Court has laid down the

proposition as under:

(A) CONSTITUTION OF INDIA – ARTICLES 226

AND 227 ALLEGATION OF ENCROACHMENT OF

GOVERNMENT LAND – Complaint by the Tahsildar –

Initiation of criminal proceedings before Jurisdictional

Magistrate against the petitioner – Grievance of the

petitioners, Criminal Prosecution is launched without

following the principles of natural justice – Prayer to quash

criminal proceedings – HELD, Principles of natural justice

demands that the petitioners ought to have been given an

opportunity to have their say in the matter- The

proceedings can not be sustained as the Tahsildar has

lodged the complaint without giving any such opportunity,

without conducting any survey in the presence of the

petitioner and the complaint was lodged merely on the

basis of the documents to which the petitioners are not

parties.

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(B) KARNATAKA LAND REVENUE ACT, 1964 –

AMENDMENT – INTRODUCTION OF SECTION

192-A – Encroachment of Government Land – Allegation

– Complaint – Initiation of Criminal Proceedings –

Procedure require to be followed – HELD, Section 192-A

stipulates a procedure under which a show cause notice is

to be given calling upon those alleged encroachers to file

their objections within 15 days. If no objections are

received, authorities are called upon to visit the spot,

conduct a Mahazar in the presence of the villagers, obtain

their signatures and thereafter to initiate criminal

proceedings if they are satisfied that there is encroachment.

In the event of alleged encroachers producing documents

to examine the same and only in the event of the said

documents are found to be fabricated or duplicate, to

initiate proceedings under Section 192A of the Act. – As

the criminal prosecution is launched against all the

petitioners without affording an opportunity to have their

say and in the light of the circular which is passed by the

Government, the criminal proceedings cannot be sustained

– Hence, the proceedings are hereby quashed.

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13. I have also perused the circular issued by the government of

Karnataka dated 8.9.2008 in No.RD 674 LGB 2008 which reads as

under:

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¸ÀPÁðj d«ÄãÀÄUÀ¼À°è£À MvÀÄÛªÀjAiÀÄ£ÀÄß vÉgÀªÀÅUÉƽ¸ÀĪÀ ¸À®ÄªÁV PÀ£ÁðlPÀ s̈ÀÆ PÀAzÁAiÀÄ PÁAiÉÄÝUÉ wzÀÄÝ¥Àr vÀAzÀÄ PÀ®A 192(J)gÀ CrAiÀÄ°è C¥ÀgÁzsÀUÀ¼ÀÄ ªÀÄvÀÄÛ ²PÉëUÀ¼ÀÄ JA§ ºÉƸÀ CzsÁåAiÀĪÀ£ÀÄß ¸ÉÃ¥ÀðqÉ ªÀiÁqÀ¯ÁVgÀÄvÀÛzÉ. ¸ÀzÀj wzÀÄÝ¥Àr PÁAiÉÄÝAiÀÄ£ÀéAiÀÄ ¸ÀPÁðj d«Ää£À°è C£À¢üPÀÈvÀªÁV MvÀÄÛªÀj ªÀiÁrPÉÆArgÀĪÀªÀgÀ «gÀÄzsÀÝ Qæ«Ä£À¯ï ªÉÆPÀzÀݪÉÄUÀ¼À£ÀÄß zÁR®Ä ªÀiÁqÀĪÀ ªÀÄÄ£Àß ¸ÀA§A¢ü¹zÀªÀjUÉ CªÀgÀÄ ºÉÆA¢gÀĪÀ zÁR¯ÉUÀ¼À£ÀÄß ºÁdgÀÄ ¥Àr¸À®Ä MAzÀÄ CªÀPÁ±ÀªÀ£ÀÄß ¤ÃqÀĪÀÅzÀÄ CªÀ±ÀåªÉAzÀÄ ¸ÀPÁðgÀªÀÅ ªÀÄ£ÀUÀArzÉ. DzÀÝjAzÀ PÀ£ÁðvÀPÀ s̈ÀÆ PÀAzÁAiÀÄ PÁAiÉÄÝAiÀÄ PÀ®A 192(J)gÀ CrAiÀÄ°è MvÀÄÛªÀjzÁgÀgÀ «gÀÄzÀÞ Qæ«Ä£À¯ï ªÉÆPÀzÀݪÉÄUÀ¼À£ÀÄß zÁR®Ä ªÀiÁqÀĪÀ ªÀÄÄ£Àß F PɼÀPÀAqÀ ªÀiÁUÀð¸ÀÆaUÀ¼À£ÀÄß C£ÀĸÀj¸ÀĪÀAvÉ ¸ÀÆa¸À¯ÁUÀzÉ :-

1. ¸ÀPÁðj d«ÄãÀ£ÀÄß MvÀÄÛªÀj ªÀiÁrPÉÆArgÀĪÀÅzÁV w½zÀÄ §AzÀ vÀPÀët CAxÀ ªÀåQÛ / ¸ÀA¸ÉÜUÉ AiÀiÁªÀ DzsÁgÀzÀ ªÉÄÃ¯É D ¸ÀPÁðj d«Ää£À ¸Áé¢üãÀªÀ£ÀÄß ºÉÆA¢gÀÄwÛÃj JA§ §UÉÎ w½¹, CzÀPÉÌ ¸ÀA§AzsÀ¥ÀlÖ zÁR¯ÁwUÀ¼À£ÀÄß ¸ÀÆPÀÛ «ZÁgÀuÉAiÉÆA¢UÉ °TvÀ gÀÆ¥ÀzÀ°è 15 ¢£ÀUÀ¼ÉƼÀUÁV ¸ÀPÀëªÀÄ ¥Áæ¢üPÁgÀPÉÌ vÀ®Ä¦¸À®Ä w½¸ÀvÀPÀÌzÀÄÝ.

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2. ¤UÀ¢üvÀ CªÀ¢üAiÉƼÀUÉ ¸ÀA§A¢ü¹zÀ MvÀÄÛªÀjzÁgÀgÀÄ AiÀiÁªÀÅzÉà zÁR¯ÉUÀ¼À£ÀÄß MzÀV¸ÀzÉà EzÀÝ°è ¸ÀPÀëªÀÄ ¥Áæ¢üPÁgÀªÀÅ ¤UÀ¢üvÀ PÁ¯ÁªÀ¢ü ªÀÄÄVzÀ £ÀAvÀgÀ MvÀÄÛªÀj ¸ÀܼÀPÉÌ s̈ÉÃn ¤Ãr UÁæªÀĸÀÜgÀ ¸ÀªÀÄPÀëªÀÄzÀ°è vÀ¤SÉ £Àqɹ MvÀÄÛªÀj JAzÀÄ

PÀAqÀħAzÀ°è ªÀĺÀdgï §gÉzÀÄ CzÀPÉÌ ºÁdjzÀÝ UÁæªÀĸÀÜgÀ ¸À»UÀ¼À£ÀÄß ¥ÀqÉzÀÄ vÀzÀ£ÀAvÀgÀ MvÀÄÛªÀjzÁgÀgÀ ªÉÄÃ¯É PÀ£ÁðlPÀ s̈ÀÆ PÀAzÁAiÀÄ PÁAiÉÄÝ PÀ®A 192(J)gÀrAiÀÄ°è Qæ«Ä£À¯ï

ªÉÆPÀzÀݪÉÄUÀ¼À£ÀÄß zÁR°¸À®Ä PÀæªÀÄ vÉUÉzÀÄPÉƼÀîvÀPÀÌzÀÄÝ.

3. MvÀÄÛªÀjzÁgÀgÀÄ £ÉÆÃnøÀÄ ¥ÀqÉzÀ £ÀAvÀgÀ PÀbÉÃjUÉ ¨sÉÃn ¤Ãr zÁR¯ÁwUÀ¼À£ÀÄß ºÁdgÀÄ¥Àr¹zÀ°è D zÁR¯ÁwUÀ¼À£ÀÄß ºÁdgÀÄ¥Àr¹zÀ°è D zÁR¯ÁwUÀ¼À £ÉÊdvÉAiÀÄ£ÀÄß «ªÀgÀuÉAiÉÆA¢UÉ PÀÆ®APÀĵÀªÁV ¥Àj²Ã°¹, zÁR¯ÁwUÀ¼À£ÀÄß £ÀPÀ®Ä CxÀªÁ ¸ÀȶÖvÀ JAzÀÄ PÀAqÀħAzÀ°è MvÀÄÛªÀjzÁgÀgÀ «gÀÄzÀÞ s̈ÀÆ PÀAzÁAiÀÄ PÁAiÉÄÝ PÀ®A 192(J)gÀrAiÀÄ°è Qæ«Ä£À¯ï ªÉÆPÀÌzÀݪÉÄ zÁR°¸À®Ä PÀæªÀÄ PÉÊUÉƼÀîvÀPÀÌzÀÄÝ.

¸À»/- r. vÀAUÀgÁeï ¸ÀPÁðgÀzÀ ¥ÀæzsÁ£À PÁAiÀÄðzÀ²ð PÀAzÁAiÀÄ E¯ÁSÉ ( s̈ÀÆ.ªÀÄA.).

14. Looking to the case on hand, it is not the case of the

complainant or respondent No.1 State that before registering the FIR in

this case, the procedure, as laid down in the aforesaid decision, has been

complied with. In that regard, no material has been placed by the

respondents that show cause notices were issued to the alleged

encroachers inviting their objections to be filed within 15 days. It is also

not the case of the respondents that they have filed their objections or

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produced any documents and that they were considered. It is also not

the case of the respondents that after issuing notice to the alleged

encroachers survey proceedings were conducted in their presence.

Therefore, in the absence of such procedures followed by the

respondent State, only on the basis of the complaint lodged by

respondent-complainant, the BMTF cannot register the FIR and take up

the matter for investigation.

15. Even with regard to the alleged offences under he provisions

of the KMC Act, it is necessary to follow the due procedure as laid down

under Section 192A of the KLR Act and then only respondent No.1

State can come to the conclusion that whether really the offences

alleged under the provisions of the KLR Act and the KMC Act have

been committed or not with regard to the allegation of encroachment on

the public land. Without doing such exercise and only on the basis of

the allegations made in the complaint, it cannot be said that such

offences have been committed.

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16. I have perused records of the case and the objections

statement filed by respondent No.1 State in W.P. No.49183/2012 so

also the objection statement filed on behalf of the BMTF in Crl.P.

No.7303/2012 clubbed with 7480/2012. Nowhere in the said objection,

it is mentioned that before registering the FIR, the due procedure as

contemplated under section 192A KLR Act and also the procedure

contemplated in the government circular mentioned has been complied

with by issuing show cause notice giving 15 days time to the alleged

encroachers to show cause as to why action should not be taken against

them. When such mandatory provisions under section 192A of the

KLR Act has not been followed in the case on hand, the contention of

the complainant as well as the respondent State that there is

encroachment on the government land cannot be accepted.

17. In view of the provisions under section 192A of the KLR Act

so also the government circular issued under the provisions of Section

192A of the KLR Act, there is a bar to the BMTF to register the FIRs

and to take up investigation in the matter. Therefore, when there is a

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clear bar under the said provisions so also the government circular, it is

not necessary to refer to the other merits of the case.

18. Accordingly, I pass the following order:

(a) The writ petitions and the criminal petitions are allowed

and the proceedings in Cr.No.203/2012 registered by BMTF police

against the above petitioners are hereby quashed

(b) However, liberty is reserved to the State or its authorities to

comply with the requirements as contemplated in the circular before

initiating any action against the petitioners if need arises.

(c) All other contentions in the aforesaid petitions are kept

open to be adjudicated whenever the occasion arises.

Sd/-

JUDGE

Cs/-