Karnataka High Court
The State Of Karnataka vs M/S Dhammanagi And Sanu Developers Pvt ... on 3 January, 2018
1 W. P .N o .2 0 5 4 1 o f 2 0 1 7
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 3 R D DAY OF JANUARY 2018
BEFORE
THE HON'BLE MRS.JUSTICE K.S.MUDAGAL
WRIT PETITION No.20541 of 2017 [LR-RES]
BETWEEN:
1. THE STATE OF KARNATAKA
REP BY ITS PRINCIPAL SECRETARY
REVENUE DEPARTMENT
M S BUILDING
BENGALURU-560001
2. THE ASSISTANT COMMISSIONER
BELAGAVI SUB DIVISION
BELAGAVI
3. THE TAHSILDAR
BELAGAVI TALUK
BELGAVI
... PETITIONERS
(BY SHRI MADHUSUDAN R.NAIK, ADVOCATE GENERAL)
AND:
1. M/S DHAMMANAGI AND SANU DEVELOPERS
PVT. LIMITED
NO.137, RAILWAY PARALLEL ROAD
KUMARA PARK EAST
BENGALURU-560020
REP BY ITS MANAGING DIRECTOR
2 W. P .N o .2 0 5 4 1 o f 2 0 1 7
2. SRI BABU ADIVAPPA DHAMMANAGI
S/O ADIVAPPA DHAMMANAGI
AGED ABOUT 58 YEARS
BAVASANAGARA, BAILHONGAL-591102
BELGAVI DISTRICT
... RESPONDENTS
(BY SHRI ANANT MANDAGI, SENIOR ADVOCATE AND
SHRI HEMANT CHANDANGOUDAR ADV. FOR R1 & R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ORDER BEARING APPEAL NO. 1072/16
DTD.15.04.2017 PASSED BY THE HON'BLE KARNATAKA
APPELLATE TRIBUNAL, BENGALURU, VIDE ANNEXURE-A.
Case Reserved on : 31st October 2017
Judgment Pronounced on : December 2017
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING ON 31ST OCTOBER 2017, SAME HAVING BEEN
HEARD AND RESERVED FOR PRONOUNCEMENT OF ORDER,
THIS DAY THE COURT PRONOUNCED THE FOLLOWING:-
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ORDER
"Whether the lands bearing RS Nos.971/1, 972/2 and 971/3 measuring 26 acres 32 guntas situated within Belagavi city are the lands as defined under Section 2(18) of the Karnatak a Land Reforms Act, 1961 (for short 'the Act') and Sections 79A an d 79B of the Act can be applied to them?" is the question involved in this case.
2. The aforesaid lands were the Watan lands belonging to one Kulkarni family. Under order Annexure 'B' dated 18.08.1960 they were re-granted to the said Watandar under the Bombay Hereditary Offices Act 1827. Though initially the said lands situated within the limits of Belagavi village, on declaration of Belagavi agglomeration area, they came under the umbrella of Belagavi City Municipal Corporation as well as Belagavi Urban Development Authority. Under the revised Master Plan 2014, Belagavi Urban Development 4 W. P .N o .2 0 5 4 1 o f 2 0 1 7 Authority earmarked the said lands for the public and semi-public purpose as they situate in the heart of Belagavi City.
3. The land owners along with their power of attorney holder / assignor Shankar Hanumantappa Munavalli sold the said lands to the respondents under the registered sale deeds 'C1' to 'C9' dated 23.01.2015, 24.01.2015, 31.01.2015, 06.02.2015, 09.02.2015, 27.05.2015, 28.05.2015, 30.05.2015 and 01.06.2015.
4. On 30.05.2016, one Rev.Dr.Prabhakar Shadrack addressed Annexure 'D' the complaint to the 2nd petitioner - Assistant Commissioner alleging that the respondents have violated the provisions of Sections 79A and 79B of the Act in purchasing the lands and he sought action against them for such violation.
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5. As admitted in the petition itself, the 2 n d petitioner on the basis of Annexure 'D', registered a case in No.KLR/79(A)(B)/CR-06/2015-16 against the respondents and sought a report in the matter from the 3 r d petitioner -Tahsildar. Accordingly, the 3 r d petitioner filed his report Annexure 'E' dated 6 t h July 2016. In Annexure 'E', the 3 r d petitioner reported that the respondents have violated Sections 79A and 79B of the Act in purchasing the lands in question.
6. Based on the report Annexure-E, the 2 n d petitioner issued the notice Annexure 'F' dated 25 t h July 2016 to the respondents requiring them to show cause as to why action should not be taken against them for the violation of Sections 79A and 79B of the Act and the lands should not be confiscated to the State.
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7. In reply to Annexure-F the respondents appeared before the 2 n d petitioner and submitted their detailed objections. They mainly contended that the properties in question are not the lands as defined under Section 2(18) of the Act and therefore, Sections 79A and 79B of the Act or the provisions of the Karnataka Land Revenue Act do not apply to them. Hence, they sought dropping of the proceedings.
8. In those proceedings, the 2 n d petitioner passed order Annexure 'G' dated 2 n d December 2016 holding that though the lands are in the City limits, unless they are converted to non- agriculture use by an order, they remain the lands as defined under Section 2(18) of the Act. In the said order, it was further held that the respondents have not produced any order of conversion or permission under Section 109 of the 7 W. P .N o .2 0 5 4 1 o f 2 0 1 7 Act, therefore there is violation of Sections 79A and 79B of the Act.
9. Ultimately, the 2nd respondent vide order Annexure-G declared that the sale of the land in favour of the respondents is violative of Sections 79A and 79B of the Karnataka Land Reforms Act and the same shall vest in Government free of all encumbrances and the lands are confiscated to the State.
10. Respondents challenged the order Annexure-G before the Karnataka Administrative Tribunal, Bengaluru in Appeal No.1072/2016. The Tribunal vide order Annexure- A allowed the appeal on the following grounds:
(i) The land in question comes within the jurisdiction of the Belgavi Town Municipal Council and the Municipality has assessed them to tax and recovered the tax.
(ii) The land comes within the Belgavi Urban Development Authority and as per the Master Plan published by the said authority in 2014 and the earlier plan 8 W. P .N o .2 0 5 4 1 o f 2 0 1 7 also, the said land is reserved for the use of public and semi public purposes.
(iii) Having regard to the aforesaid facts and as the land is situated within the heart of the Belgaum City, it is no more agricultural land.
(iv) Since Belgaum City Muncipal Corporation has assessed the properties to the tax and recovered the same, there is no need to seek the conversion of the use of the land from agriculture to non-agricultural purposes having regard to the following Judgments of the High Court:
a. M.MUNINARAYANA SWAMY AND ANOTHER VS. STATE OF KARNATAKA AND OTHERS:
ILR 2012 KAR 3428, b. J.M.NARAYANA AND OTHERES VS.
CORPORATION OF THE CITY OF
BANGALORE AND OTHERS: ILR 2005 KAR
60
c. BANGALORE DEVELOPMENT AUTHORITY
VS. VISHWA BHARATHI HOUSE BUILDING CO-OPERATIVE SOCIETY LTD: ILR 1991 KAR 4401
(v) Having regard to the ratio laid down in the aforesaid Judgments, the property in dispute is not the land as defined under S.2(18) of the Karnataka 9 W. P .N o .2 0 5 4 1 o f 2 0 1 7 Land Reforms Act, therefore there is no violation of Sections 79A and 79B of the Act.
11. Sri Madhusudhan R. Naik, learned Advocate General seeks to assail the order of the Tribunal on the following grounds:
(i) The Tahsildar had no competence to grant occupancy rights under Annexure-B dated 18.08.1960 to the representatives of the original Watandar. Therefore the grant in favour of the vendors of the respondents itself is bad.
(ii) As per condition No.4 of the Grant Order Annexure-B and lands should be used for agriculture only and not to any other purpose without previous permission of the Deputy Commissioner. Therefore the land use for non-agricultural purposes by the vendors of the respondents is contrary to the Grant Order.
(iii) Since Grant Order required previous permission of the Deputy Commissioner to change the land use from 10 W. P .N o .2 0 5 4 1 o f 2 0 1 7 agriculture to non-agricultural purpose, there is violation of S.95(2) of the Karnataka Land Revenue Act.
(iv) Since the respondents are transferees under the original grantees, they are bound by the conditions of the grant and by virtue of doctrine of election they are estopped from questioning the condition of bar against the use of the land for non-agricultural purpose.
(v) Since no such permission for conversion is taken, the property remains to be the agricultural land, therefore the sale in favour of the respondents is violative of Sections 79A and 79B of the Act.
12. In support of his contentions, he relies upon the following Judgments:
(i) STATE OF KARNATAKA AND OTHERS VS. SHANKARA TEXTILES MILLS LTD. : (1995) 1 SCC 295
(ii) THE STATE GOVERNMENT EMPLOYEES' CO-OPERATIVE HOUSING SOCIETY LIMITED, HUBLI VS. THE HUBLI- DHARWAD URBAN DEVELOPMENT AUTHORITY, HUBLI:
(1999) 3 KLJ 267
(iii) SHIDDAPPA KARIYAPPA AND ANOTHER VS. LAND TRI, RENEBENNUR AND ORS.: 1978 1 KLJ 83
(iv) GUNTAIAH AND OTHERS VS. HAMBAMMA AND OTHERS: (2005) 6 SCC 228 11 W. P .N o .2 0 5 4 1 o f 2 0 1 7
13. Sri Anant Mandagi, learned Senior Counsel appearing for Sri.Hemant Chandangoudar, the learned Advocate on record for the respondents seeks to justify the order of the Tribunal and opposes the petition on the following grounds:
(i) The contention regarding the competence of Tahsildar to grant occupancy rights or violation of the Grant Order is irrelevant as no action is initiated under the relevant Watan Abolition Act for violation of the conditions of grant.
(ii) As per the admissions of the petitioners themselves, the lands in question are assessed by the Belagavi City Municipal Corporation for tax since long time and they are reserved for public use under the Master Plan published by the Belagavi Urban Development Authority, and the lands have lost the character of agricultural lands long ago. Therefore they are not covered under the definition of land under S.2(18) of the Act.
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(iii) When the properties no more remained land as defined under S.2(18) of the Act, S.79A and 79B of the Act do not apply.
(iv) Whenever a revisional authority proposes to exercise suo-motu powers like the one on hand, such powers have to be exercised within a reasonable time and such delay renders the action of the 2nd respondent in passing the order Annexure-G illegal.
(v) Such delayed action is initiated at the behest of one Rev.Dr.Prabhakar Shadrack who failed in several litigations between himself and the respondents and their vendors before the Civil Courts as well as before this Court. Petitioner No.2/ the adjudicatory authority himself files this petition supporting his own order, therefore the action of the petitioners is mala fide.
14. In support of his arguments, he relied upon the following Judgments:
(i) K. KUNHAMBU VS. SMT.CHANDRAMMA AND OTHERS; (2004) 9 SCC 174 13 W. P .N o .2 0 5 4 1 o f 2 0 1 7
(ii) J.M.NARAYANA AND OTHERS VS. CORPORATION OF THE CITY OF BANGALORE AND OTHERS:
ILR 2005 KAR 60
(iii)M.MUNINARAYANA SWAMY AND ANOTHER VS. STATE OF KARNATAKA AND OTHERS:
ILR 2012 KAR 3428
(iv) STATE GOVERNMENT EMPLOYEES' CO-OPERATIVE HOUSING SOCIETY LTD., VS. HUBLI-DHARWAD URBAN DEVELOPMENT AUTHORITY:
ILR 1999 KAR 1797
(v) B.M.UPENDRA KUMAR VS. STATE OF KARNATAKA AND OTHERS:
ILR 2016 KAR 2101
(vi) STATE OF KARNATAKA VS. SRI B.M.UPENDRA KUMAR: (DB)WRIT APPEAL NO.1859/2016 AMEND 31.07.2017.
(vii) MOHTESHAM MOHD. ISMAIL VS. SPL. DIRECTOR, ENFORCEMENT DIRECTORATE AND ANOTHER:
(2007) 8 SCC 254
(viii) BAHADURSINH LAKHUBHAI GOHIL VS. JAGDISHBHAI M. KAMALIA AND OTHERS:
(2004) 2 SCC 65
(ix) JOINT ACTION COMMITTEE OF AIR LINE PILOTS' ASSOCIATION OF INDIA (ALPAI) AND OTHERS VS. DIRECTOR GENERAL OF CIVIL AVIATION AND OTHERS: (2011) 5 SCC 435
(x) THE ASSISTANT PROVIDENT FUND COMMISSIONER VS. WEST COAST PETROLEUM AGENCY AND OTHERS:
MANU/KE/0290/2012 Reg: Application of Sections 79A and 79B of the Karnataka Land Reforms Act:
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15. The prime question in the matter is whether the lands in question attract Sections 79A and 79B of the Karnataka Land Reforms Act?
16. The relevant portions of Sections 79A and 79B of the Act read as follows:
79-A. Acquisition of land by certain persons prohibited.- (1) On and from the commencement of the Karnataka Land Reforms (Amendment) Act, 2015, no person who or a family or a joint family which has an assured annual income of not less than rupees twenty five lakhs from sources other than agricultural lands shall be entitled to acquire any land whether as land owner, landlord, tenant or mortgagee with possession or otherwise or partly in one capacity and partly in another. 79-B. Prohibition of holding agricultural land by certain persons.-
(1) With effect on and from the date of commencement of the Amendment Act, except as otherwise provided in this Act,-
(a) no person other than a person cultivating land personally shall be entitled to hold land; and
(b) it shall not be lawful for,-
(i) ....
(ii) a company;
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(iii) an association or other body of individuals not being a joint family, whether incorporated or not; or
(iv) .....
(2) Every such institution, society, trust, company, association, body or co-operative society,-
(a) which holds lands on the date of commencement of the Amendment Act and which is disentitled to hold lands under sub-section (1), shall, within ninety days from the said date, furnish to the Tahsildar within whose jurisdiction the greater part of such land is situated a declaration containing the particulars of such land and such other particulars as may prescribed; and
(b) which acquires such land after the said date shall also furnish a similar declaration within the prescribed period.
(Emphasis supplied)
17. The reading of the aforesaid Sections makes it clear that what is prohibited is the acquisition of the lands and agricultural lands. S.2(18) of the Act defines the 'land' as follows:
"2(18). "land" means agricultural land, that is to say, land which is used or capable of being used for agricultural purpose or purposes subservient thereto and 16 W. P .N o .2 0 5 4 1 o f 2 0 1 7 includes horticultural land, forest land, garden land, pasture land, plantation and tope but does not include house-site or land used exclusively for non- agricultural purposes;"
(emphasis supplied)
18. Therefore to invoke Sections 79A and 79B necessarily the property in question should be the land as defined under S.2(18) of the Act. It is the contention of the respondents that though initially the lands were agricultural lands, long back those lands fell within the limits of the then Belagavi Town and they were assessed to tax by Belagavi Town Municipal and later Belagavi City Corporation. It is their further contention that the lands were neither cultivated nor capable of being cultivated since long time. Therefore they fall within the later part of S.2(18) of the Act which excludes house, site or land used exclusively for non agricultural purposes.
19. The petitioners did not dispute that the lands in question are used exclusively for non agricultural 17 W. P .N o .2 0 5 4 1 o f 2 0 1 7 purpose as contended by the respondents. But their contention is that despite that, the respondents ought to have got converted the use of the lands from agriculture to non-agricultural purposes.
20. Regarding the nature of lands, it is useful to refer to the admissions of the petitioners themselves in para 2 of the petition which reads as follows:
"2. It is submitted that the land measuring, in all, 26 acres 32 guntas in R.SNo.s.971/1, 972/2 & 971/3 of Belagavi Village, Belagavi, is the subject matter of this Writ Petition, which land was re-granted in favour of one Kulkarni family. Now, the said land comes within the limits of Municipal Corporation, Belagavi as well as, Belagavi Urban Development Authority. As per the revised Master Plan, 2014, the said land has been earmarked for public and semi-public purpose and situated in the heart of Belagavi City. ......."
21. According to the petitioners themselves, petitioner No.3 took possession of the land after passing of the order Annexure-G by drawing the mahazar - Annexure-H1. In Annexure-H1, the boundaries of the land are shown as follows:
18 W. P .N o .2 0 5 4 1 o f 2 0 1 7 East: Old Pune Bangalore road West: Anjuman Hall North: Police Parade ground South: Court road and D.C. Office road
22. Para 2 of Annexure-H1 itself states that the property consists of buildings, dilapidated buildings, Church and School buildings. Nowhere it is stated that the land is used or capable of being used for agricultural purpose. The record of rights and the mutation extract produced by the petitioners themselves show that there are no crops in the land and the land is not under cultivation. Annexure-E, the report of the 3rd petitioner dated 06.07.2016 submitted to the 2nd petitioner shows that the land is situated in Belagavi City and comes under the City Survey limits.
23. Annexures-R3A to R3E are the tax paid receipts and R4 is the CTS Extract of the land. Annexures- R3A to R3E show that Belagavi City Corporation has assessed the lands as sites and recovered the tax 19 W. P .N o .2 0 5 4 1 o f 2 0 1 7 accordingly. Annexure-R4 the CTS Extract further shows that the lands were entered in the City Survey Records of Belagavi City in the year 1982 itself. That itself shows that they were exclusively used for non agricultural purposes.
24. Annexure-R6, the report of the 2nd petitioner to the Deputy Commissioner, Belagavi dated -05-2006 states that at the time of re-grant on 18/08/1960, the lands were entered in the Village records and later incorporated in City Survey records and re-numbered as CTS Nos.3928, 3929, 3929/1,2 and 3929/5. The 2nd petitioner has given his report even prior to the sale in favour of the respondents.
25. Annexure-R7 is the reply of the Additional Deputy Commissioner, Belagavi to the letter of Shankara Munavalli dated 12.08.2014. In Annexure-R7 the Deputy Commissioner has stated that if the lands are coming within the Village, there is no need for conversion of the lands for non-agricultural use. Annexure-R8 is the letter issued by the Belagavi Urban Development Authority on 20 W. P .N o .2 0 5 4 1 o f 2 0 1 7 17.01.2017 stating that Sy. No.971 of Belagavi is partly reserved for use of public and semi public purpose and partly for the road. As per the petition averments itself, the Belagavi Corporation reserved the land for the said purpose in its Master Plan 2014.
26. The above referred records show that the lands in question were used for non agricultural purpose. Thus, they are not covered under the definition of land under S.2(18) of the Act.
27. The Judgments of the Supreme Court in Shankara Textiles Mills' case and Kunhambu's case referred to supra fully govern the matter in issue in this case. In Shankara Textiles Mills' case, the land owner / Company itself had declared the lands in question as agricultural land and claimed exemption from the provisions of Sections 79B and 109 of the Act. Therefore it was held therein that S.79A applies.
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28. But in the later Judgment in Kunhambu's case referred to supra, the Hon'ble Supreme Court held as follows:
" 8. That apart, it could be seen from the definition of 'Land' in the Act that though it comprehends in the first part land actually cultivated or cultivable, the later exclusionary part of the definition, "but does not include house site or land used exclusively for non- agricultural purpose" makes it abundantly clear that the actual and exclusive user for non-agricultural purposes, even the land otherwise cultivable or capable of being used for any purposes related to agriculture as enumerated therein, would stand excluded and fall outside the purview of the said definition in Section 2(A)(18) of the Act. When the land in question is itself not 'land' as defined for the purpose of the Act, there is no scope or room for falling back up on the so called object or aim of the legislation to extend the provisions of the Act to areas specifically left outside it against the express legislative mandate and will, policy and intention. In addition thereto, the facts specifically disclosed and categorically found by the High Court on the basis of the materials on record would equally belie the claim of the appellant being a 'tenant' as defined in Section 2(A)(34) of the Act."
(emphasis supplied) 22 W. P .N o .2 0 5 4 1 o f 2 0 1 7
29. In the above Judgment the Hon'ble Supreme Court distinguished the Judgment of Shankara Textiles Mills' case and held that the actual and exclusive use of the land for non-agricultural purposes, even if the land is otherwise cultivable or capable of being used for any purposes related to agriculture, excludes such land from the purview of the definition of land in Section 2(18) of the Act. Therefore the 2nd petitioner's action in invoking Sections 79A and 79B against the respondents is wholly unsustainable in law.
30. So far as the contention that the lands were re-granted exclusively for agricultural use and by putting them to non-agricultural use without the permission of the Deputy Commissioner, there is violation of the conditions of re-grant and therefore the order Annexure-G is justifiable cannot be accepted. For the alleged breach of conditions of grant, the 2nd petitioner cannot invoke Sections 79A and 79B of the Act.
23 W. P .N o .2 0 5 4 1 o f 2 0 1 7
31. As already pointed out, the records show that at least from 1982, the land is being used for non- agricultural purposes. Since 1982, the petitioners have not initiated any action under the relevant Watan's Abolition Act for the alleged violation of the conditions of the grant. Grant order does not provide for forfeiture of land for violation of condition No.4.
32. For the alleged violation of the conditions of the grant, the petitioners cannot invoke Sections 79A and 79B of the Karnataka Land Reforms Act. Under law, when an act has to be performed in accordance with certain statute or procedure, the statutory authority has to proceed only in accordance with the said statute/procedure. Therefore the contention of the learned Advocate General that for violation of the conditions of the grant, the 2nd petitioner has justifiably initiated action under Sections 79A and 79B deserves no merit at all.
33. Learned Advocate General contended that even assuming that land is not covered under S.2(18) of the 24 W. P .N o .2 0 5 4 1 o f 2 0 1 7 Act, there cannot be any automatic or deemed conversion of the land and the land owners have to take permission under S.95(2) of the Karnataka Land Revenue Act for conversion of the use of the land from agriculture to non- agricultural purpose. At the cost of repetition it has to be stated that order Annexure-G is passed for violation of Sections 79A and 79B of the Act and not for violation of S.95 of the Land Revenue Act.
34. Even otherwise, whether the lands need conversion under S.95(2) has to be ascertained by reading Section 95(2). A reading of S.95(2) makes it very clear that the said section can be invoked only if the land is used or held for the purpose of agriculture. Admittedly in this case, the land is not assessed to land revenue by the Revenue Department but the land is assessed by the City Municipal Corporation under the City Survey as land was not held for the purpose of agriculture. Therefore S.95(2) of the Land Revenue Act is also not applicable.
25 W. P .N o .2 0 5 4 1 o f 2 0 1 7
35. Since the matter is fully covered by the Judgment of the Supreme Court in Kunhambu's case referred to supra, this Court does not find it necessary to refer to several other Judgments relied upon by the parties on the point.
Reg: delay:
36. The sales in question in favour of the respondents vide Annexures - C1 to C9 took place in January, February, May and June, 2015. But the 2nd petitioner issued show-cause notice on the basis of complaint received from Rev.Dr.Prabhakar Shadrack on 30.05.2016. The order in question is passed on 02.12.2016 i.e., after lapse of one year five months.
37. This Court in Upendra Kumar's case referred to supra held that whenever a statutory authority has to exercise suo-motu power, the same shall be exercised within a reasonable time. While holding so, the Court extensively referred to 26 W. P .N o .2 0 5 4 1 o f 2 0 1 7 the earlier Judgment of the Supreme Court in Joint Collector Ranga Reddy District and Another vs. D.Narsing Rao and others (2015) 3 SCC 695, Mohamad Kavi Mohamad Amin vs. Fatmabai Ibrahim (1997) 6 SCC 71, Santoshkumar Shivgonda Patil vs. Balasaheb Tukaram Shevale (2009) 9 SCC 352.
38. In Narsing Rao's case, exercising powers after nine months was held too late. In Mohamad Kavi's case, action initiated after one year was held to be beyond reasonable time. In Upendra Kumar's case this Court quashed the order passed under Sections 79A and 79B against Mr. Upendra Kumar on the ground of delay. On appeal, the Division Bench of this Court in W.A. Nos.1859/2016 and 4994-95/2016 disposed of on 31.07.2017 upheld the Judgment of the Single Judge.
27 W. P .N o .2 0 5 4 1 o f 2 0 1 7
39. In the present case also, after the respondents purchasing the properties, the Khata was changed in their names. The Sub-Registrar did not raise any objection for registration of sales. After more than one year, at the behest of Rev.Dr.Prabhakar Shadrack, the 2nd petitioner exercised suo-motu powers under Sections 79A and 79B of the Act. On that ground also, the order Annexure-G is unsustainable. Reg. Mala fides:
40. Sri Anant Mandagi learned Senior Counsel appearing for Sri.Hemant Chandangoudar, learned Advocate on record attributes mala fides to the respondents in passing order Annexure 'G' on the following grounds:
(i) The 2nd respondent, being the adjudicatory authority which passed order
Annexure 'G', itself files appeal to justify its own order;
28 W. P .N o .2 0 5 4 1 o f 2 0 1 7
(ii) The proceedings of the order Annexure 'G' are initiated and the said order is passed at the behest of Rev.Dr.Prabhakar Shadrack.
41. Sri Madhusudan R. Naik, learned Advocate General, repels the said argument on the following grounds:
(i) When the Government has no grievance for the 2 n d petitioner joining in filing the petition, respondents cannot question that; No personal interest of the 2 n d petitioner is demonstrated in the matter;
(ii) Section 83 of the Act empowers the 2 n d petitioner to initiate action for contravention of the provisions of the Act on coming to its notice in any other manner;
(iii) the Judgments in i) Bahadursinh Lakhubhai Gohil, ii) Joint Action Committee Of Air Line Pilots' Association Of India (Alpai) And Others, iii) The Assistant Provident Fund Commissioner, iv) State of Madhy a 29 W. P .N o .2 0 5 4 1 o f 2 0 1 7 Pradesh and Others vs. Sanjay Nagayach and Others (2013) 7 SCC 25 are not applicable.
42. In Mohd. Ismail's case relied upon by Sri.Anant Mandagi, the learned Senior Counsel it is held that when the authority's order had been set aside by the Board, ordinarily in the absence of any power to prefer an appeal, the authority should not do so. It is held that when an Officer was specially authorized, he can act on behalf of the Central Government and not otherwise.
43. It is true that generally an adjudicating authority by itself will not file an appeal. However, if there is special authorization by the Government, it can file the appeal. It is for the Government to deny that it has not authorized the 2nd petitioner to file the petition. The first petitioner has no such grievance. Therefore the 30 W. P .N o .2 0 5 4 1 o f 2 0 1 7 Judgments relied upon by the respondents' counsel are not applicable.
44. The perusal of S.83 shows that the 2 n d petitioner can initiate action on the basis of the report submitted by the authorities mentioned in S.82 or also on coming to its notice in any other manner about the contravention of the provisions of the Act. Therefore it may be true that the initiation of action on the representation of Rev.Dr.Prabhakar Shadrack alone may not make the action mala fide.
45. In the case of State of Madhya Pradesh referred to supra, it is held that a statutory authority shall not act with preconceived notions and shall not speak his master's voice. Even assuming that the 2 n d petitioner has power to proceed on the information of Rev.Dr.Prabhakar Shadrack, the course of events in this matter casts doubt about the bona fides of the petitioners in 31 W. P .N o .2 0 5 4 1 o f 2 0 1 7 passing the order Annexure-G and the action consequent to that act.
46. The Order Annexure-G is passed on 02.12.2016. The petitioners were aware that the said order is appealable. The petitioners were also well aware that the respondents seriously contested the notice of the 2nd petitioner. Annexure-H1 shows that, despite that on the date of passing of the order itself the 2 n d petitioner issues communication to the 3 r d petitioner along with copy of the order Annexure-G and directs him to take possession of the land.
47. Within three days from the date of the order in a hot haste, the 3rd petitioner dispossesses the respondents from their land, without giving any opportunity to them to prefer an appeal or ascertaining their intention whether they prefer any appeal or not. Such action shows that there is sufficient force in the contention of 32 W. P .N o .2 0 5 4 1 o f 2 0 1 7 the learned counsel for the respondents that the initiation of the proceedings by the 2 n d petitioner and the order Annexure-G are tainted with mala fides.
48. The Tribunal taking into consideration that the land in question is not an agricultural land and relying on the Judgments of this Court, proceeded to allow the appeal. This Court does not find any ground to interfere with the same. Hence, the petition is dismissed with costs.
Sd/-
JUDGE 1-8:Rk/-
9-end:/sac*