Karnataka High Court
Nagaraj S/O Ramkrishna Kamat vs The State Of Karnataka on 12 April, 2023
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WP No. 101801 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.101801 OF 2023 (GM-RES)
BETWEEN:
1. NAGARAJ S/O. RAMKRISHNA KAMAT,
AGE: 50 YEARS, OCC: SERVICE,
R/O. AROLLI, MUNDGOD,
TQ: HONNAVAR, DIST: KARWAR-581 334.
2. VITTAL S/O. PUNDLIK KAMAT,
SINCE DECEASED BY HIS LRS.
SANTHOSH VITTAL KAMAT
AGE: 42 YEARS, OCC: AGRICULTURIST,
R/O. AROLLI, MUNDGOD,
TQ: HONNAVAR, DIST: KARWAR-581 334.
...PETITIONERS
(BY SRI S.V. YAJI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
YASHAVANT
NARAYANKAR
REPRESENTED BY THE SECRETARY,
Digitally signed by
DEPARTMENT OF REVENUE,
YASHAVANT
NARAYANKAR
Location: High
VIKAS SOUDHA, BENGALURU-560 001.
Court of Karnataka,
Dharwad Bench
2. THE TAHSILDAR HONNAVAR,
HONNAVAR, DIST: KARWAR-581 334.
...RESPONDENTS
(BY SRI PRASHANT V. MOGALI, HCGP)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING THIS COURT TO ISSUE A
WRIT IN THE NATURE OF CERTIORARI AND QUASH THE NOTICE
ISSUED BY THE RESPONDENT NO.2-TAHSILDAR HONNAVAR UTTAR
KANNADA DISTRICT AT NO.LND/VIVA/151/2022-23 DATED
04/03/2023 VIDE ANNEXURE-K TO THE WRIT PETITION.
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WP No. 101801 of 2023
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned writ petition is filed by the petitioners assailing the impugned recovery notice issued by respondent No.2/Tahasildar vide Annexure-K, based on a report of the Geologist.
2. The grievance of the petitioners is that the impugned notice is in the form of a final order. The petitioners claim that they were never heard and no opportunity was afforded while issuing impugned notice calling upon the petitioners to deposit Rs.3,22,980/- as royalty for having illegally removed soil (murram). The petitioners claim that the Revenue Inspector's report would clinch the issue in regard to utilization of soil for the purpose of formation of a road.
3. The petitioners have placed reliance on the report submitted by the Revenue Inspector before respondent No.2/Tahasildar. Placing reliance on the -3- WP No. 101801 of 2023 report, the petitioners claim that the allegations are against one Sri Kantappa Shyanbagh. The recovery is challenged on the ground that it is initiated not only against petitioner No.1 but also against father of petitioner No.2 who is no more. Therefore petitioners claim that the recovery notice which in the form of final order is in gross violation of principles of natural justice.
4. Heard learned counsel for the petitioners and learned High Court Government Pleader.
5. On perusal of a report submitted by the Revenue Inspector addressed to respondent No.2/Tahasildar, vide Annexure-F, gives an indication that the soil in Sy.No.62 T1 totally measuring 2 acres 19 guntas 06 annas is utilized for formation of road. Specific allegations are attributed against one Sri Kantappa Shyanbagh for having used JCB to remove the soil from Sy.No.62 T1.
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6. The Geologist report which is placed on record as per Annexure-G also does not indicate that the petitioners were heard before submitting the report to respondent No.2/Tahasildar. The report of Geologist does not indicate that mahazar was conducted in presence of petitioners, though in paragraph No.2 of the report by the Geologist vide Annexure-G refers to spot inspection in the presence of petitioners. However, this Court is not inclined to place total reliance on the Geologist report that the petitioners were heard.
7. Be that as it may, respondent No.2 on receipt of report from the Geologist, the least he could have done is to serve a copy of the report and to issue a show cause notice before initiating recovery proceedings. Since the order violates the principles of natural justice, I am of the view that the same is not sustainable. The impugned notice which is in the form of final order has caused serious prejudice to the petitioners. The recovery notice is issued against father of petitioner No.2, who is no more. -5- WP No. 101801 of 2023 To substantiate the said fact, the petitioners have placed reliance on record, the death certificate.
8. The contention of the learned High Court Government Pleader that the report submitted by the Revenue Inspector cannot be looked into as he is not competent to submit a report to the Tahasildar and the notice calling upon the petitioners to deposit Rs.3,22,980/- is based on a report submitted by the Geologist cannot be acceded to. If the report of Revenue Inspector, indicates that the soil is removed by several persons that to for the formation of the road, then there has to be fair enquiry by issuing notice to all persons against whom recovery of royalty is initiated.
9. Natural justice is an expression of English common law. It involves procedural requirement of fairness. The principles of natural justice are not embodied rules and are not codified. They are judge made rules. Essentially, the natural justice requires that a person receives fair and unbias hearing before a decision is made -6- WP No. 101801 of 2023 that will negatively affect them. The three requirement of natural justice that must be met in every case are :
adequate notice, fair hearing and no bias. The material on record clearly demonstrates that the order suffers from bias. If an explanation is offered and that the authority was in receipt of an explanation, the authority was not justified in passing the impugned order on the ground that, the petitioner and other concerned have failed to reply to the show cause notice.
10. In that view of the matter, the impugned order is not sustainable. For the foregoing reasons, I proceed to pass the following;
ORDER
(i) The writ petition is hereby allowed.
(ii) The impugned recovery notice dated 04.03.2023 vide Annexure-K is hereby quashed.
(iii) Respondent No.2 shall issue notice calling upon the petitioners to offer an explanation -7- WP No. 101801 of 2023 to the report submitted by the Geologist vide Annexure-J.
(iv) On receipt of notice, petitioners shall offer their explanation and also place on record all relevant documents to substantiate their defence that they have not contravened any provisions of Mineds and Minerals (Regular and development) Act, 1957.
(v) Respondent No.2 after affording an opportunity to all the interested persons shall pass a fresh order in accordance with law.
SD/-
JUDGE EM List No.: 1 Sl No.: 22