Karnataka High Court
Nandakumar S/O Damodar Naidu vs The State Of Karnataka on 31 August, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC-D:12529
WP No. 107946 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 31ST DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION NO. 107946 OF 2015 (GM-RES)
BETWEEN:
1. SHRI NANDAKUMAR S/O. DAMODAR NAIDU,
AGE: 60 YEARS, OCC: BUSINESS,
R/O: 'MANJUNATH NILAYA' SAI NAGAR,
UNKAL, HUBBALLI-580031, DIST: DHARWAD.
2. KUMARI LEKHA D/O. NANDAKUMAR NAIDU,
AGE: 27 YEARS, OCC: PRIVATE SERVICE,
R/O: SAI NAGAR, UNKAL, HUBBALLI.
REPRESENTED BY HER GPA HOLDER,
SHRI NANDAKUMAR S/O. DAMODAR NAIDU,
AGE: 60 YEARS, OCC: BUSINESS,
R/O: 'MANJUNATH NILAYA' SAI NAGAR,
UNKAL, HUBBALLI-580031, DIST: DHARWAD.
...PETITIONERS
(BY SRI. SANJAY S. KATAGERI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
GIRIJA A REPRESENTED BY THE PRINCIPAL SECRETARY,
BYAHATTI DEPARTMENT OF REVENUE, VIDHAN SOUDHA,
Location: HIGH BENGALURU-580001.
COURT OF
KARANTAKA
DHARWAD
BENCH
2. THE DEPUTY COMMISSIONER,
DHARWAD DISTRICT, DHARWAD,
DHARWAD-580001.
3. SHRI K.K. NAYAKWADI,
AGED ABOUT: 35 YEARS,
OCC: SURVEYOR, (SURVEY SECTION),
TAHASILDAR'S OFFICE, LAMINGTON ROAD,
HUBBALLLI-580020.
4. SHRI M.B. BAGALKOTI,
AGED ABOUT: 48 YEARS,
OCC: IN-CHARGE SUPERINTENDENT
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NC: 2024:KHC-D:12529
WP No. 107946 of 2015
OF SURVEY DEPARTMENT,
HUBBALLI TALUKA TAHASILDAR'S OFFICE,
LAMINGTON ROAD, HUBBALLI-580020.
5. KALLANAGOUDA S. KABBUR,
AGED ABOUT: 54 YEARS,
OCC: ASSISTANT SECURITY COMMISSIONER,
RAILWAY PROTECTION FORCE,
R/O.NO.31/12 A, PARASWADI 2ND STAGE,
KESHWAPUR, HUBBALLI-580023.
6. SHRI RUDRAPPA CHANNAPPA HATTIHOLI,
AGED ABOUT: 77 YEARS, OCC: RTD. DY. S.P.,
HOUSE NO.100, 6TH CROSS,
VIJAYANAGAR, HUBBALLI-580032.
7. SMT. NAZMA PHEERJADE,
AGED ABOUT: 50 YEARS,
OCC: DY. DIRECTOR OF LAND RECORDS,
DHARWAD DISTRICT, DHARWAD.
8. SMT. G. SEEMANTINI,
AGED ABOUT: 27 YEARS,
OCC: ASST. DIRECTOR OF LAND RECORDS,
DHARWAD DIVISION, DHARWAD,
DIST: DHARWAD.
...RESPONDENTS
(BY SRI. PRAVEEN K. UPPAR, AGA FOR R1 & R2;
SRI. SANTOSH B. MANE, ADV. FOR R3, R4 & R8;
SRI. R.G. KODLI, ADV. FOR R5 & R6;
SRI. D.L. LADKHAN, ADV. FOR R7)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI BY QUASHING THE PROCEEDINGS IN ¥ÀPæ g
À t
À
¸ÀASÉå: ¹§âA¢/zÀÆgÀÄ/Cfð 2/2013-14 FROM 22.08.2013 TO 19.12.2013
AS PER ANNEXURE-Z HEREIN CONDUCTED BY RESPONDENT NO.7
HEREIN; ISSUE A WRIT OR ORDER OF DIRECTION IN THE NATURE
OF MANDAMUS TO THE RESPONDENT NO.1 HEREIN TO REFER THIS
CASE TO THE PROPER INVESTIGATION AUTHORITY THROUGH THE
CBI OR THROUGH THE KARNATAKA LOKAYUKTA, BENGALURU OR
THROUGH THE COD, SO AS TO HOLD DETAIL ENQUIRY IN THIS
CASE AS AGAINST THE RESPONDENTS NO.3 TO 8 HEREIN RESPECT
OF FORGERY, FRAUD, DESTROYING DOCUMENTS, CRIMINAL BREACH
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NC: 2024:KHC-D:12529
WP No. 107946 of 2015
OF TRUST AND PRACTICING CORRUPTION, CREATING THE
DOCUMENTS, MANIPULATION OF THE APPLICATION, PREPARATION
OF SURVEY MAP ETC IN RESPECT OF PLOTS NO.7 & 8 OF SY NO.202
OF UNKAL VILLAGE, HUBBALLI MEASURING TO AN EXTENT OF 27
GUNTAS, AND THEREBY DIRECTING TO TAKE ACTION IN
ACCORDANCE WITH LAW.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH) Heard the petitioner's counsel, learned AGA for respondent Nos.1 and 2 and counsels for respondent Nos.3, 4, 7 and 8. Counsel for the respondent Nos.5 and 6 is absent.
2. The prayer sought in this petition is to issue writ in the nature of certiorari by quashing the proceedings in ¥ÀPæ g À t À ¸ÀASÉå: ¹§âA¢/zÀÆgÀÄ/Cfð 2/2013-14 from 22.08.2013 to 19.12.2013 as per Annexure-Z herein conducted by respondent No.7 herein and to issue a writ or order of direction in the nature of mandamus to the respondent No.1 herein to refer this case to the proper investigation authority through the CBI or through the Karnataka Lokayukta, Bengaluru or through the COD, so -4- NC: 2024:KHC-D:12529 WP No. 107946 of 2015 as to hold detail enquiry in this case as against the respondents No.3 to 8 herein in respect of forgery, fraud, destroying documents, criminal breach of trust and practicing corruption, creating the documents, manipulation of the application, preparation of survey map etc. in respect of plots No.7 & 8 of Sy.No.202 of Unkal Village, Hubballi measuring to an extent of 27 guntas and thereby directing to take action in accordance with law and grant such other relief as this Court deems fit in the circumstances of the case.
3. The factual matrix of case of this writ petition is that the petitioners herein are the owners in possession of plot bearing No.4 measuring 2 guntas 5 anas in RS No.202 of Unkal village as the said plot is a layout approved by the Hubballi-Dharwad Urban Development Authority. The measurement of the property is 15x50 feet. That prior to this approval of layout plan, the petitioner No.1 and his brother were in possession and occupation of the land with the consent and knowledge of its owner to the extent of -5- NC: 2024:KHC-D:12529 WP No. 107946 of 2015 75 feet x 50 feet in RS No.202. The earlier Naik family are the owners. The petitioners herein are having common right and interest over the said properties and as such this petition is filed by paying separate Court fee. It is also contended that petitioner No.1 is the GPA holder of petitioner No.2 herein. It is also the contention that petition No.2 is also the owner of plot No.4 measuring 2 guntas 5 anas. The Hubballi-Dharwad Municipal Corporation (for short, 'HDMC') issued notice to the uncle of petitioner No.2 herein to pay the tax, fees etc. in respect of the land in possession of the said survey number and so also in respect of plot No.4 on 31.12.1991. The respondent No.6 herein purchased the remaining plots in Sy.No.202 on 13.11.2007 from some of the members of the original land owners by way of registered sale deed, even though FDP filed by the original owners is pending for adjudication of the proceedings. The respondent No.6 alerted the plots to his daughter by way of registered relinquishment deed dated 27.05.2008. The uncle of the petitioner No.2 herein was the owner of the said plot No.4 -6- NC: 2024:KHC-D:12529 WP No. 107946 of 2015 in the said Sy.No.202 and also executed the registered sale deed in favour of the petitioner herein on 15.11.2010. The petitioners herein obtained building construction permission from the HDMC for residential purpose and the same was permitted on 20.07.2011. The petitioners and respondent No.6 herein agreed for mutual settlement of dispute in respect of the plot Nos.4, 7 and 8 of the said Sy.No.202 and undertook the same by the respondent No.6 before the witnesses and surveyor on 23.08.2011. The petitioners requested the Tahasildar (ADLR) Hubli to make an entry regarding destroying the boundaries and stone marks over the plot Nos.7 and 8 after the undertaking given by the respondent No.6 herein on 23.08.2011 and thus sought for appropriate action in this regard as per the law on 25.08.2011. The petitioners were informed by respondent No.2 herein regarding manipulation and creation of the documents and maps by the influential persons in respect of the said Sy.No.202 and creation of PT sheet and KJP map on 13.09.2011. The respondent Nos.5 and 6 herein have illegally created the -7- NC: 2024:KHC-D:12529 WP No. 107946 of 2015 PT sheet/KJP in respect of the said Sy.No.202 and have started influencing the authorities and as such the notice was issued to the petitioners herein to clarify the stand in respect on 17.09.2012. In pursuance of the notice issued by the HDMC officials to the petitioner No.1, he had furnished all the information with the documents over the plot No.4 in respect of said survey number and the allegations made regarding the encroachment by the petitioners were denied and further stated that the respondent Nos.5 and 6 are the real culprit in creating and manipulating the KJP map as the boundaries and measurements mentioned in the KJP and layout plan varies and as such allegations are without substance. Further, the petitioner and family members are in possession of the said land for more than 30 years to the extent of 75x50 of the said Sy.No.202. It is contended that respondent Nos.5 herein, who was not having any authorization as such in respect of the plots other than plot NO.4 of the said survey number, gave application by mentioning his wife's name to conduct the survey of the -8- NC: 2024:KHC-D:12529 WP No. 107946 of 2015 plots in the said survey number, the application made before the respondent No.3 is also marked as Annexure K. The respondent Nos.5 and 6 have manipulated the application submitted to the respondent No.3 herein by endorsing the name of the owner of the plots as per Annexure-M. The respondent No.3 herein created the alleged map by stating that the petitioners, as a owner of the plot No.4 has encroached over the plot No.7 and prepared the map on 29.01.2013. The respondent No.3 intimated that the measurement regarding hadbasta plots in Sy.No.202 has been carried out on 01.02.2013. The petitioner No. herein fired objections to the said measurement and no notice is issued to the adjoining owners and measurement is illegal and the same are not carried out. Respondent No.5 herein filed a suit for the relief of declaration and injunction, by alleging the encroachment over the plot No.7 and 8 belonging to him by the plot No.4 petitioners in the state survey number. The suit is also numbered as OS NO.154/2013. The petitioner No.1 herein filed the statutory appeal before the -9- NC: 2024:KHC-D:12529 WP No. 107946 of 2015 Tahasildar, Hubballi challenging the said creation of map with respondent No.3 and interim order of stay was granted by staying the map created on 29.01.2013 vide order dated 20.03.2013. The petitioner No.1 herein made complaint to the Tahasildar regarding the creation of documents etc. by the respondent Nos.3, 5 and 6 and sought for action in this regard. The temporary injunction sought in the sid suit in O.S.No.154/2013 came to be rejected by the civil Court on the ground that the respondent No.5 herein has not approached the Court with clean hands and the alleged creation of map by the surveyor is stayed in the Appeal filed by the petitioner herein. The petitioner No.1 herein gave representation/ complaint in regarding manipulation of the application, records etc. by the respondent Nos.3 to 6 herein and as such sought for enquiry. Respondent No.1 herein forwarded the complaint of the petitioner No.1 to the respondent No.2 herein to take appropriate action. The respondent No.2 herein appointed the respondent No.7, DDLR, Hubballi to make enquiry regarding the allegations
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NC: 2024:KHC-D:12529 WP No. 107946 of 2015 made by the petitioners herein. Respondent No.7 also conducted an inquiry appointing the respondent No.8 to make spot inspection of the said plots and also respondent No.8 visited this plot and allegedly submitted the report stating that survey is conducted properly by the respondent Nos.3 and 4. The respondent No.7 considered the report of the respondent No.8 and closed the inquiry proceedings whereas in the order sheet it is stated the proceedings is adjourned. The petitioner No.1 filed objections for holding of spot inspection by the respondent No.8 herein and contended that it is beyond the scope of enquiry conducted by the respondent No.7. The petitioners were informed that enquiry is completed by the respondent No.7 by holding the enquiry proceedings from 22.08.2013 till 19.12.2013. The petitioner No.1 filed application under Right To Information Act and sought the documents regarding action taken as against the respondent Nos.3 and 4 on the basis of the enquiry report on 09.06.2014 and the same was intimated that no map or measurement is carried out during the spot inspection
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NC: 2024:KHC-D:12529 WP No. 107946 of 2015 conducted by the respondent No.8 and as directed by the respondent No.7 during the enquiry proceedings. The petitioners got measurement and other inspection of the plot No.4 of the said survey number through the Civil Engineer and in the said inspection it is stated specifically that no encroachment in the plot No.7 by the petitioner herein. The Joint Director of Land Records, Bengaluru intimated the petitioner that the allegation made by the petitioner in respect of manipulation of the original records is not forthcoming and as such no action can be initiated. And once again the petitioner No.1 given representation to the Karnataka Lokayukta, Bangalore to hold an enquiry as against respondent Nos.3, 4, 7 and 8 in regarding the manipulation of the revenue records and the Lokayukta, Bangalore passed the order stating that the remedy to the petitioner is elsewhere as there is no such facility to investigate with it and as such issued the endorsement on 07.07.2015 to the petitioner herein and hence, this petition is filed before this Court challenging the Annexure- Z.
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NC: 2024:KHC-D:12529 WP No. 107946 of 2015
4. It is the contention of the counsel appearing for the petitioners that the very closing of the proceedings of respondent NO.7 without concluding the same is nothing but it clearly discloses that there is a clear collusion between the respondent Nos.3, 4, 7 and 8 along with respondent Nos.5 and 6. The counsel would vehemently contend that respondent Nos.5 and 6 have deliberately and intentionally manipulated the application, records, etc. in respect of holding the survey of the said plots situated in Sy.No.202 of Unkal village Hubballi and also there is a clear case of forgery, fraud, destroying the documents and also the criminal breach of trust and practicing corruption etc. has been committed by the respondent No.3 to 6 and an erroneous report is given that there is an encroachment by the petitioner herein and all of them have colluded with each other and created the documents and hence it requires detailed enquiry with regard to the criminal offences committed by them only to favour the respondent Nos.5 and 6. The counsel also brought to notice of this Court the additional facts and also produced the
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NC: 2024:KHC-D:12529 WP No. 107946 of 2015 documents before the Court vide Annexure-J and content that it is a fit case to initiate appropriate proceedings as sought in the petition. The counsel would also submit that the rectification made by the respondents were also challenged before the DDLR and the same was also set aside and the same also clearly evidence the fact that all of them have colluded and prepared the document and created the document for counter.
5. The counsel appearing for the respondents would contend that respondent Nos.3, 4 and 8 would vehemently contend that when the action taken by the respondents are in pursuance of the direction given and they conducted the survey and also given the report and if there is any grievance on the said report, they have to challenge the same before the appropriate forum. The counsel would also submit that it is not in dispute that before the DDLR, proceedings was also taken place and the same has been quashed and also the very contention that all of them have colluded each other in order to
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NC: 2024:KHC-D:12529 WP No. 107946 of 2015 favour the respondent Nos.5 and 6 cannot be accepted as they have discharged their duties in discharge of public duty. The petitioners have not made out any case to initiate any criminal action or by referring the matter to the CBI or to the COD or even to the Lokayukta to investigate the matter. The counsel would also submit that a suit is also filed by the respondent Nos.5 and 6 and the same is pending before the Court. If any violation of their rights or any encroachment, the matter will be decided in civil Court and not by initiating any criminal action against the respondents.
6. Learned AAG would submit that when the issue between the parties with regard to the civil rights, question of referring the matter to the CBI or to the COD does not arise.
7. The counsel appearing for the respondent No.7 would vehemently contend that when the work was entrusted to the respondent No.7, she conducted the enquiry in discharge of public duty and submitted the
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NC: 2024:KHC-D:12529 WP No. 107946 of 2015 report. There is no any specific allegation against this respondent with regard to initiation of criminal action and hence this writ petition is liable to be dismissed.
8. Having heard the petitioner's counsel and also the counsel appearing for the respondents as well as the learned AGA and having taken note of the material on record and also the allegations made in the complaint, it is not in dispute that petitioners claim that they are the owners of plot No.4 and 2 guntas and 5 anas was claimed that they are the owners and also petitioner No.2 claims that he is also the owner to the extent of 75 x 50 and also power of attorney is given in favour of the petitioner No.1 to agitate the matter. The main grievance of the petitioners before this Court that the respondent Nos.5 and 6 also claim that they also purchased the property.
9. The counsel also brought to the notice of this Court Annexure-N2 which is clear that property is not handed over to the HDMC and question of creating document is very clear that all of them have indulged in
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NC: 2024:KHC-D:12529 WP No. 107946 of 2015 creation of document. It is also not in the petitioner also challenged the survey report before the DDLR and the same is also quashed. The counsel brought to the notice of this Court that a suit is filed and temporary injunction is sought, the said application was dismissed in coming to the conclusion that plaintiff has not made out prima facie case.
10. It is important to note that when the dispute between the parties is with regard to allotment of the plot Nos.4 as well as with regard to the encroachment in respect of plot Nos.7 and 8 and the same has to be decided in Civil Court and already a suit is also filed and the same is pending before the Trial Court. When such being the case, if any error on the part of discharging of duties by the Government Officials and if any favor is made in favour of the respondent Nos.5 and 6 as contended in the writ petition, the same has to be urged before the Civil Court and the very allegation of the creation of document in collusion with the respondent
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NC: 2024:KHC-D:12529 WP No. 107946 of 2015 Nos.5 and 6, the same cannot be urged before this Court for referring the matter to the CBI or to the COD or any other authority including Lokayukta. Further, the records disclose that when the complaint was given before the Lokayukta, the same was considered and given the endorsement in terms of Annexure-AH. When such being the material on record, even petitioner also challenged the survey records before the ADLR, order has been passed. In view of these allegations of collusion, it is not a case for referring the matter to the CBI or to the COD or to any other authorities to conduct any enquiry and submit the report. The main contention of the petitioners before this Court Annexure-Z is questioned.
11. On perusal of order sheet at page Nos.142 to 147, it discloses that enquiry was concluded. Having taken note of the fact that based on Annexure-Z, it is not a case for referring the matter to the CBI. If any grievance against Annexure Z, if the same is not concluded, the same has to be questioned before the appropriate forum
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NC: 2024:KHC-D:12529 WP No. 107946 of 2015 and the same has not been questioned before this Court as contended by the respondent No.7. When such being the case, it is not a fit case for granting the relief as sought in the writ petition.
12. In view of the discussions made above, I pass the following :
ORDER Writ Petition is dismissed.
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(H.P.SANDESH) JUDGE NAA CT-MCK List No.: 1 Sl No.: 36