@JUDGMENTTAG-ORDER
Budihal R.B., J.@mdashThe 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, 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.
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 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 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.
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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 v. The State
4.
4. Learned counsel appearing for petitioners in other petitions have adopted the arguments of the learned Senior Counsel Sri. CV. 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. 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.
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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 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 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. 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 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.
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.
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"
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, 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 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 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 subsection (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 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
"(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.
(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."
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:
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 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.
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 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."
