Karnataka High Court
Murarilal Agarwal vs Deputy Commissioner on 2 August, 2014
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 2ND DAY OF AUGUST, 2014
BEFORE
THE HON'BLE MR. JUSTICE H.BILLAPPA
WRIT PETITION NO.78519/2013 (LR)
BETWEEN
MURARILAL AGARWAL,
S/O. A.P. AGARWAL,
AGED ABOUT 53 YEARS,
NO. 899A, 899B & 900,
HARAGINADONI ROAD,
VENIVEERAPURA CROSS,
KUDITHINI VILLAGE,
BELLARY-585 104. ... PETITIONER
(BY SRI. D.R. RAVISHANKAR &
SRI.SRINAND A. PACHCHAPURE, ADVS.)
AND
1. DEPUTY COMMISSIONER
BELLARY DISTRICT,
BELLARY.
2. ASST. COMMISSIONER
BELLARY SUB DIVISION
BELLARY.
3. SPECIAL LAND ACQUISITION OFFICER,
KARNATAKA INDUSTRIAL AREA
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DEVELOPMENT BOARD,
M.S.BUILDING, BANGTALORE.
4. ARCELOR MITTAL LTD.
COMPANY REGISTERED UNDER THE
COMPANIES ACT HAVING ITS
REGISTERED OFFICE AT
UPPAL PLAZA, M6,
6TH FLOOR, JASOLA DISTRICT CENTRE,
NEW DELHI-110 025. ... RESPONDENTS
(BY SMT.K. VIDYAVATHI, AGA FOR R.1 & R.2,
SRI.P.N. HATTI, ADV. FOR PROPOSED R.3,
SRI.VEERESH R. BUDIHAL, ADV. FOR PROPOSED R.4 )
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH
ANNEXURE-F THE ORDERS PASSED BY THE 2ND
RESPONDENT DATED 18.12.2012 IN NO.REV/LRM/199/2012-
13, AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS, THIS
DAY, THE COURT, MADE THE FOLLOWING:
ORDER
In this writ petition under Article 226 of the Constitution of India, the petitioner has called in question the order dated 18.12.2012 passed by the 2nd respondent in case No.REV/LRM/199/2012-13 vide annexure-F. :3:
2. By the impugned order at annexure-F, the 2nd respondent has held that the sale transaction in respect of the lands mentioned in Schedule-I in favour of the petitioner are null and void and the lands are forfeited to the Government and they shall vest with the State Government free from all encumbrances and has recommended prosecution under Section 125(2-B) of the Karnataka Land Reforms Act, 1961.
3. Aggrieved by that, the petitioner has filed this writ petition.
4. Briefly stated the facts are;
The petitioner claims that he purchased agricultural lands in Sy.Nos.907A, 907B, 902B in all measuring 19.34 acres through registered sale deeds dated 14.11.2007 and 20.08.2008. Thereafter, mutation has been effected in the name of the petitioner. The petitioner has been using the lands and he has paid taxes from time to time. The lands purchased by the petitioner were the subject matter of acquisition proceedings pursuant to preliminary notification :4: issued under Section 28(1) of the KIAD Act. The final notification was issued on 4.5.2010 and it was gazetted on 5.5.2010. The acquisition proceedings were challenged by the petitioner in W.P.No.71665/2012 before this Court. This Court granted stay of dispossession as per Annexure-B.
5. It is stated, the State machinery realising that there was apparent fallacy in concluding the proceedings, the 1st respondent set the 2nd respondent to act under the provisions of the Karnataka Land Reforms Act through communication dated 29.11.2012. The 2nd respondent issued notice dated 4.12.12 to the petitioner to attend the proceedings under Section 80 of the Karnataka Land Reforms Act on 7.12.2012. As there was only two days time in between the date of notice and hearing date and the concerned signatory was out of country, a request was made for accommodation to file the reply. On 7.12.12 there was no sitting of the 2nd respondent. The request for adjournment was given to the concerned case worker and no date of hearing was intimated. Thereafter, one more notice dated :5: 11.12.12 was issued stating that objections, if any, shall be filed within 5 days failing which criminal proceedings would be initiated against the petitioner. This exercise of initiating proceedings was done in a haste. The notices dated 4.12.2012 and 11.12.12 were challenged in W.P.Nos.51405- 406/2012. This Court granted stay of dispossession by order dated 20.12.12. The said writ petitions are still pending. It is stated, there is reference to only Sy.No.907A in the notice.
6. On 28.12.12 when the petitioner approached the 2nd respondent to file objections, the petitioner was informed and order itself was communicated along with a covering letter stating that the Assistant Commissioner has already passed an order dated 18.12.2012 declaring the sale transactions as null and void and directing the lands to be resumed to the Government and to initiate criminal proceedings against the petitioner. It is stated, the notice dated 4.12.12 refers to Sy.No.907A and subsequent notices or proceedings do not refer to any transactions or properties. However, the order passed by the Assistant Commissioner :6: dated 18.12.12 is in respect of the lands for which no notice was issued. Thereafter, by producing the order dated 18.12.12 in W.P.No.71665/12 the said writ petition was got dismissed.
7. It is stated, though appeal is provided since the Assistant Commissioner has initiated proceedings at a belated stage and non-compliance of statutory provision, violation of principles of natural justice and malafides are the grounds on which the writ petition is filed, the remedy of appeal would not prevent the petitioner from invoking the jurisdiction of this court under Article 226 of the Constitution of India. Therefore, the petitioner has prayed for quashing of the order dated 18.12.12 passed by the 2nd respondent vide Annexure- F.
8. The respondents 1 and 2 have filed their statement of objections contending that the writ petition is not maintainable. The petitioner has violated the provisions of law by submitting false affidavit and has purchased agricultural lands on 14.11.2007 and 20.8.2008. The inquiry :7: contemplated is summary in nature. The notice dated 4.12.12 was issued to the petitioner to appear on 7.12.12. On that date the petitioner did not appear though sitting was held. The petitioner's Counsel sought for time on the ground that petitioner is abroad and refused to submit any documents or counter statement. Thereafter, another notice dated 11.12.2012 was issued. The petitioner did not appear. As the notices were not replied the impugned order came to be passed considering all aspects of the matter. The petitioner is not the resident of Karnataka State and he is an industrialist and was never an agricultural labourer. The amount involved in the transaction is Rs.54,65,000/-. By no stretch of imagination an agricultural labourer can have source to purchase the property worth Rs.54,65,000/-. Therefore, it is prayed to dismiss the writ petition.
9. The 4th respondent has filed statement of objections denying the petition averments and contending that the writ petition is not maintainable. The order passed by the Assistant commissioner under Section 83 of the :8: Karnataka Land Reforms Act, 1961, is appealable under Section 118(2) of the said Act and therefore, the writ petition is not maintainable. The petitioner who is not a resident of Karnataka State is said to have purchased the agricultural land bearing Sy.Nos.907A and 907B measuring in all 19.34 acres situated at Kudithini village, Bellary District, by declaring himself to be agricultural labourer before the Tahsildar and Sub-Registrar's office. The petitioner has violated the provisions of Karnataka Land Reforms Act, 1961 by submitting false affidavit and has purchased the agricultural lands on 14.11.2007 and 20.8.2008. The petitioner has committed fraud and has committed offences under various provisions of IPC. He cannot seek remedy before this Court.
Further it is stated that the Karnataka Land Reforms Act, 1961 exclusively prohibits transfer of agricultural land to any non-agriculturist and that as per Sections 79A, 79B and Section 80 of the Karnataka Land Reforms Act, a person intending to take up agriculture can purchase agricultural land :9: subject to certain conditions after getting permission from the Assistant Commissioner. The petitioner is not an agricultural labourer by any stretch of imagination. Therefore, the impugned order cannot be found fault with.
10. It is stated, all procedural requirements in the matter of acquisition have been met with. The details are also furnished in para-6 of statement of objections. Further it is stated that the 2nd respondent has held the sale transaction as null and void in compliance with the provisions of the law. The petitioner is also liable for prosecution for having filed false affidavit and contending himself to be a resident of Karnataka and agriculturist. It is also stated the impugned order has been passed after giving sufficient opportunity to the petitioner and it is not in violation of principles of natural justice. It is stated the person who commits fraud cannot take advantage of it. The sale transaction is hit by Sections 79A and 79B of Karnataka Land Reforms Act, 1961. The writ petition is not maintainable in view of W.P.Nos.51405- 406/2012 on the same subject matter.
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11. The contention of the petitioner that no action can be taken after one year is not sustainable in law. The reasonable time must be determined with reference to the facts and circumstances of each case. In the present case, the 2nd respondent came to know about the sale transaction by virtue of the writ petition. Thereafter, the 2nd respondent has initiated action forthwith and therefore, it cannot be said that there is delay in initiating the proceedings. Therefore, the writ petition is liable to be dismissed.
12. In W.P.No.71665/2012 the petitioner has stated that he is an agriculturist. In this background, the inquiry has been initiated and after issuing notice and affording sufficient opportunity the impugned order has been passed. Therefore, no malafides can be attributed to the concerned authorities. The writ petition is not maintainable and therefore, it may be dismissed.
13. The learned Counsel for the petitioner contended that the impugned order cannot be sustained in law. He also : 11 : submitted that the impugned order has been passed in a haste. Further he submitted that notice was issued on 4.12.2012 fixing the date of hearing as 7.12.2012. There was only two days time in between the date of notice and the date of hearing. Thereafter, one more notice dated 11.12.2012 was issued. The impugned order has been passed on 18.12.2012. This clearly indicates that the impugned order has been passed in a haste. Further he submitted that there is delay in initiating the proceedings. The sale transaction has taken place on 14.11.2007 and 20.8.2008. The proceedings have been initiated during December 2012. There is inordinate delay of nearly five years in initiating the proceedings. He also submitted that the power has been exercised for unauthorised purpose. Therefore, the entire proceedings are vitiated in law. There is legal malice. Therefore, the impugned order cannot be sustained in law. He also submitted that the alternative remedy is not a ground to decline to entertain the writ petition. In support of his : 12 : submission, the learned Counsel for the petitioner placed reliance on the following decisions:
(1) 2009(10) SCC 388 Zenit Mastaplast Pvt Ltd. Vs. State of Mahaharashtra and Others.
(2) LAWS(SC) 2010-9-41 Kalabharati Advertising Vs. Hemant Vimalnath Narichania.
(3) WP.Nos.30545-546/2009 (KLR-CON), DD:6.7.12, Sri.R. Sathyanarayana Raju Vs. The Assistant Commissioner, Bangalore.
(4) CDJ 2012 Kar HC 059 J. Rama Vs. M. Vittal Bhat & Others.
(5) LAWS(SC)-2006-9-71 Star Paper Mills Ltd. Vs. State of Uttar Pradesh.
(6) LAWS (SC)-2009-9-85 Santoshkumar Shivgonda Patil vs. Balasaheb Tukaram Shevale.
14. As against this, the learned Counsel for the 4th respondent submitted that the impugned order cannot be sustained in law. He also submitted that the petitioner has produced false certificate to show that he is an agricultural labourer. In the writ petition in WP.No.71665/12 he has pleaded that he is an Executive Director of M/s Agarwal : 13 : Sponge Energy Pvt. Ltd and the company owns an extent of 24.75 acres of land which was catering to the requirements of housing Sponge and Iron Unit. Therefore, it is clear, the petitioner was not an agriculturist. He has played fraud while purchasing the property. Fraud vitiates everything. Therefore, no limitation is applicable in such cases. Further he submitted that the judicial legislation of limitation is not permissible. When the statute does not provide for any limitation the Court by its judgment cannot prescribe limitation.
Further he submitted that the writ is not maintainable as alternative remedy is available under Section 118(2) of the Karnataka Land Reforms Act. Further he submitted that the concerned authority against whom legal malice is attributed is not a party to the proceedings. He also submitted that when no period of limitation is provided under the Act or Rules, then, the power can be exercised within a reasonable time which depends upon the facts and circumstances of each case. It cannot be limited to one year or two years or any : 14 : period. In support of his submission, the learned counsel for the 4th respondent placed reliance on the following decisions:
(1) Chiman Lal vs. State of Rajasthan and Ors.
AIR 2000 RAJ. 206.
(2) WA.No.778/2011 & connected matters.
Ozone Urbana Infra Developers Pvt. Ltd. vs. State of Karnataka and another. DD: 24.6.2011.
(3) Civil Appeal No.1958/2003, Vikram Singh & Anr.
Vs. State of Rajasthan & Ors.
15. The learned AGA supported the impugned order and adopted the submission made by the learned Counsel for the 4th respondent.
16. I have carefully considered the submissions made by the learned Counsel for the parties.
17. The point that arises for my consideration is; Whether the impugned order calls for interference?
18. It is relevant to note, the petitioner claims that he has purchased agricultural lands bearing Sy.Nos.907A, 907B and 902B measuring in all 19.34 acres situated at Kudithinni village, Bellary District through registered sale deeds dated : 15 : 14.11.2007 and 20.8.2008. After purchase mutation has been effected in the name of the petitioner. The lands have been notified for acquisition under Section 28(1) of KIAD Act. The petitioner has been shown as the owner of the lands. Final notification has been issued on 4.5.2010 and it is gazetted on 5.5.2010. The petitioner has challenged the acquisition proceedings in WP.No.71665/12. This Court has granted stay staying dispossession on 9.11.12. By communication dated 29.11.12 the 1st respondent has informed the 2nd respondent to act under the provisions of the Karnataka Land Reforms Act. Consequently, the 2nd respondent has issued notice dated 4.12.12 stating that the petitioner has violated the provisions of Section 80 of the Karnataka Land Reforms Act and to show cause by 7.12.2012 as to why the lands purchased by the petitioner should not be forfeited to the Government. Thereafter, one more notice dated 11.12.2012 has been issued to the petitioner to show cause within five days failing which criminal proceedings would be initiated against the petitioner. The notice dated : 16 : 4.12.12 was issued to the petitioner to appear on 7.12.12 on which date the petitioner's Counsel has sought for time. Through annexure 'D', the petitioner has been granted 5 days time to show cause failing which criminal proceedings would be initiated against the petitioner. The petitioner has challenged the notices dated 4.12.12 and 11.12.12 in WP.Nos.51405-406/2012. This court has granted stay of dispossession vide order dated 20.12.12 as per Annexure-E. The impugned order has been passed by the 2nd respondent on 18.12.2012 holding that the sale transactions in favour of the petitioner are null and void and the lands have been forfeited to the Government. Further the 2nd respondent has directed to initiate prosecution against the petitioner under Section 125(2-B) of the Karnataka Land Reforms Act, 1961. The sequence of events, namely, Preliminary Notification dated 5.2.2010, final notification dated 4.5.2010, challenge to the said notifications in WP.No.71665/2012, the interim order granted on 9.11.2012, communication by the 1st respondent to the 2nd respondent on 29.11.2012 to initiate proceedings, : 17 : show cause notice dated 4.12.2012 granting time till 7.12.2012 and subsequent notice dated 11.12.2012 and the impugned order dated 18.12.2012 clearly indicate the haste with which the impugned order has been passed and proceedings have been conducted. Hardly breathing time has been granted to the petitioner. There is force in the submission that as the acquisition proceedings were challenged the first respondent has asked the 2nd respondent to initiate proceedings under the Land Reforms Act. It is followed by show cause notice dated 4.12.2012 fixing the date of hearing as 7.12.12. Thereafter, one more notice dated 11.12.2012 has been issued granting five days time and immediately the impugned order has been passed on 18.12.2012. This clearly indicates that everything has been done in a haste.
19. Now the question is, whether the initiation of proceedings was proper and the writ petition is maintainable in view alternative remedy. The sale deeds are dated 14.11.2007 and 20.8.2008. The mutation has been effected : 18 : in the name of the petitioner. The petitioner has been notified as owner in the acquisition proceedings. It is only when the acquisition proceedings were challenged and interim order was granted on 9.11.2012, the 1st respondent has communicated the second respondent to initiate proceedings under the Land Reforms Act. Thereafter, the 2nd respondent has issued notice dated 4.12.12. Therefore, it is clear the proceedings have been initiated after the lapse of nearly five years.
20. The learned Counsel for the petitioner contended that when the statute prescribes no limitation the proceedings need to be initiated within a reasonable time. It may be one year or two years and not beyond this. In support of his submission he placed reliance on the decision of this court in WP.Nos.30545-546/2009 (KLR-CON), in the case of Sri.R.Sathyanarayana Raju Vs. The Assistant Commissioner, Bangalore, disposed of on 6.6.2012, and in J. Rama Vs. M. Vittal Bhat & Others, reported in CDJ 2012 Kar HC 059.
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21. As against this, the learned Counsel for the 4th respondent submitted that judicial legislation of limitation is not permissible. When no period of limitation is provided in the Act or Rules the power has to be exercised within a reasonable time and reasonable time will depend upon the facts and circumstances of each case. He placed reliance on the decision of Rajasthan High Court reported in AIR 2000 Raj. 206 (Chiman Lal vs. State of Rajasthan and Others) and Civil Appeal No.1958/2003 (Vikram Singh & Anr. Vs. State of Rajasthan & Ors).
22. In W.P.No.30545-546/2009 R.Sathyanarayana Raju Vs. The Assistant Commissioner, Bangalore, disposed of on 6.7.2012, this Court has considered the delay in initiating the proceedings for violation of Sections 79A, 79B and 80 of the Karnataka Land Reforms Act, 1961 and has observed as follows:
"5. ...No doubt under section 79A and 80 there is no time limit prescribed for initiating : 20 : proceedings or taking action under section 79B against petitioners.
6. The proposition enunciated by Division Bench would squarely apply to the facts on hand in all fours to the present case in as much as first respondent has initiated proceedings after lapse of nine years which cannot be construed as within reasonable time. On that ground itself order of first respondent dated 2.7.2004 Annexure-D cannot be sustained."
23. In J. Rama Vs. M. Vittal Bhat & Others, reported in CDJ 2012 Kar HC 059, this Court has considered the delay in initiating the proceedings for violation of Section 79A of the Karnataka Land Reforms Act. It has observed as follows:
"17. Another factor, which would weigh with this Court, is the inordinate delay in initiating the proceedings. Section 79-C contemplates that the proceedings can be initiated suo motu or on a request made by the aggrieved party. But however, such : 21 : initiation of proceedings under Section 79-
A is required to be done within a reasonable time. Indeed, the Act does not provide as to the limitation when the proceedings are required to be initiated. In the absence of any period of limitation, the requirement is that initiation of the proceedings will have to be within reasonable time. What is reasonable time is a matter, which is required to be considered with reference to the violation of the statute.
18. In the case on hand, it is to be noticed that the sale has taken place in the year 1980 and confirmation has taken place in the year 1982. But however, the proceedings are initiated in the year 1994, which would be after nearly 12 years. Indeed, in such circumstances, where limitation is not provided or not prescribed the general rule, which is applicable would be the initiation of proceedings within a period of one or two years at the maximum.": 22 :
24. In the case relied upon by the learned Counsel for the 4th respondent reported in AIR 2000 Raj. 206 (Chiman Lal vs. State of Rajasthan and Others), the Hon'ble Supreme Court has observed as follows:
"27. Accordingly, we answer the reference that when no period of limitation is provided either under the Act or the Rules then the same has to be exercised within a reasonable time and reasonable time will depend upon the facts and circumstances of each case."
25. In Civil Appeal No.1958/2003 (Vikram Singh & Anr. Vs. State of Rajasthan & Ors), the Hon'ble Supreme Court has observed as follows at para-15:
"....However, we also restrain ourselves from making any comment with regard thereto. The point of limitation also can be urged by the appellant before the said authorities."
26. From the above decisions, it is clear, this court has considered Sections 79A, 79B, 79C and 80 of the Land : 23 : Reforms Act and has held that reasonable time will not exceed more than one or two years. In fact, this court has followed the judgment in W.A.No.8643/1996, disposed of on 9.2.1998, in the case of Sri.R.Sathyanarayana Raju Vs. The Assistant Commissioner. Similarly, in J. Rama Vs. M. Vittal Bhat & Others, reported in CDJ 2012 Kar HC 059, it has been held, when no period of limitation is provided either under the Act or Rules the power has to be exercised within a reasonable time i.e., one or two years at the maximum. I prefer to rely upon the judgment of this court in WP.Nos.30545-546/2009, disposed of on 6.7.2012, in the case of R.Sathyanarayana Raju Vs. The Assistant Commissioner and J. Rama vs. Vittal Bhat and Others, reported in CDJ 2012 Karn.HC. Page 059. It is clear, the initiation of proceedings by the 2nd respondent after a lapse of nearly five years is vitiated in law.
27. In so far as the submission of the learned Counsel for the 4th respondent and the learned AGA that alternative remedy is available and therefore, the writ petition cannot be : 24 : entertained is concerned, it is appropriate to refer to the decision of the Hon'ble Supreme Court reported in LAWS (SC)-2006-9-71 in the case of Star Paper Mills Ltd. Vs. State of Uttar Pradesh, wherein the Hon'ble Supreme Court has observed at para-6 as follows:
"...the appeal is from "Caeser to Caeser's wife" the existence of alternative remedy would be a mirage and an exercise in futility. There are two well recognized exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the forum under a provision of law which is ultra vires, it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to await until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. We may add that where the proceedings itself are an abuse of process of law the High Court in an appropriate case can entertain a writ petition.": 25 :
In the present case, the proceedings are initiated in a haste and the order is also passed in a haste. Having regard to the circumstances of the case, alternative remedy is not a bar to entertain the writ petition. Therefore, I do not find any merit in the contention that the writ petition is not maintainable in view of alternative remedy.
28. In the circumstances of the case and for the reasons stated above, the impugned order cannot be sustained in law. Accordingly, the writ petition is allowed and the impugned order passed by the 2nd respondent in case No.REV/LRM/199/2012-13 vide annexure-'F' is hereby quashed.
IA.No.1 does not survive for consideration and accordingly, it is disposed of.
Sd/-
JUDGE Sub/