Karnataka High Court
Sri M R Seetharam vs The Additional Registrar on 16 February, 2023
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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WP No. 11793 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MS.JUSTICE JYOTI MULIMANI
WRIT PETITION NO. 11793 OF 2016 (GM-KLA)
BETWEEN:
SRI. M.R.SEETHARAM
S/O M.S.RAMAIAH,
AGED ABOUT 59 YEARS,
D-4, I FLOOR, UNITY BUILDING,
J.C.ROAD, BANGALORE - 560 002. ...PETITIONER
(BY SRI. G.KRISHNAMURTHY., SENIOR ADVOCATE FOR
SRI. PURUSHOTHAM.R., ADVOCATE)
AND:
1. THE ADDITIONAL REGISTRAR,
ENQUIRY NO.1,
KARNATAKA LOKAYUKTA,
MULTI-STORIED BUILDING,
BANGALORE - 560 001.
Digitally signed by
THEJASKUMAR N
Location: HIGH
2. BANGALORE DEVELOPMENT AUTHORITY,
COURT OF T.CHOWDAIAH ROAD,
KARNATAKA
KUMARA PARK WEST,
BANGALORE - 560 020.
3. ASSISTANT EXECUTIVE ENGINEER,
NO.1, PLANNING SUB DIVISION,
BDA COMMERCIAL COMPLEX,
BSK II STAGE,
BANGALORE - 560 070.
4. TOWN PLANNING MEMBER,
TOWN PLANNING DIVISION,
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WP No. 11793 of 2016
BANGALORE DEVELOPMENT AUTHORITY,
T.CHOWDAIAH ROAD,
KUMARA PARK WEST,
BANGALORE - 560 020.
5. SRI.K.N.SHARATH BABU
S/O D.K.NAGARAJ,
AGED ABOUT 35 YEARS,
NO. 53, GURUJI NIVAS,
5TH MAIN ROAD, ADITHYANAGAR,
J.P.NAGAR, 8TH PHASE,
BANGALORE - 560 062. ...RESPONDENTS
(BY SRI. ASHWIN.S.HALADY., ADVOCATE FOR R1;
SRI. K.KRISHNA., ADVOCATE FOR R2-R4;
SRI. B.J.KRISHNA., ADVOCATE FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, SEEKING CERTAIN
RELIEFS.
THIS PETITION, COMING ON FOR, PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Sri.G.Krishnamurty., learned Senior counsel on behalf of Sri.Purushotham.R., for the petitioner, Sri.Ashwin S.Halady., learned counsel for respondent No.1 and Sri.K.Krishna., learned counsel for respondents 2 to 4 have appeared in person.
2. The brief facts are these:
The petitioner is the owner of the property bearing Sy.No.88(P) and Sy.No.97(P) measuring 32 Acres situated at -3- WP No. 11793 of 2016 Kothanuru Village, Uttarahalli Hobli, Bangalore South Taluk. On 22.02.2002, the residential layout plan submitted by the petitioner was approved and a work order was issued by the BDA. The sanctioning of the layout plan was in conformity with the Comprehensive Development Plan 1995 and the Zoning of Land Use and Regulations was approved on 05.01.1995. After an inspection, the BDA released the sites in favor of the petitioner. Thereafter, the petitioner executed a relinquishment deed in favor of the Town Planning Authority (BDA) in respect of 7 parks and 2 civic amenity sites, before the layout was sanctioned. The roads were not relinquished since they were not formed. The BDA passed a resolution allowing 55% of the area to be used for residential purposes from 50%. The BDA while passing the resolution allowed the petitioner to form an additional site No.469B.
As things stood thus, the fifth respondent got allotted a Civic Amenity site from the BDA in favor of a Trust in which he had an interest. The site was reserved for educational purposes but was used to erect a temple. This was opposed by the residents of the layout and the petitioner did not support the unauthorized act of the fifth respondent. The fifth respondent -4- WP No. 11793 of 2016 to wreck vengeance against the residents of the layout and the petitioner, submitted a complaint before the Lokayukta on 16.10.2015 alleging the violation of the layout plan. The main allegation is that the petitioner has formed a layout without providing 18.28 meters of road between 1st main and 1st crossroad as per CDP and has encroached 10 meters of the road for which the officials were also involved. The petitioner received notice from the Lokayukta along with the complaint submitted by the fifth respondent and the petitioner was asked to submit a reply. The petitioner suitably replied. The notice issued by Lokayukta is called into question in this Writ Petition on several grounds as set out in the Memorandum of Writ Petition.
3. Learned Senior counsel for the petitioner and respondents 1 to 4 have urged several contentions.
4. Heard, the contentions urged on behalf of the respective parties and perused the Writ papers and also the Annexures with utmost care.
Sri.G.Krishnamurthy., learned Senior counsel submitted that the petitioner is not a public servant hence, Lokayukta -5- WP No. 11793 of 2016 could not have issued a notice to the petitioner. Learned senior counsel in presenting his argument vehemently contended that the initiation of proceedings by Lokayukta is contrary to Section 8(2)(c) & (d) of the Karnataka Lokayukta Act, 1984. He argued by saying that the layout was formed and the sites were released way back in the year 2002 and the complaint is filed in the year 2015 i.e., after a long lapse of thirteen years. The complainant has not shown sufficient cause for the delay. Therefore, he submitted that the proceedings initiated by the Lokayukta are liable to be quashed.
Learned Senior counsel placed reliance on the following decisions:
1. M.A.PARTHASARATHY VS. THE SPECIAL DEPUTY COMMISSIONER AND OTHERS - (2009) 5 KAR.L.J. 203.
2. KUMARASWAMY MINERAL EXPORTS PVT. LTD., VS. STATE OF KARNATAKA AND ORS. - (2015) 6 KAR.L.J. 381.
3. M/S HAPPY HOME BUILDERS (KARNATAKA) PVT.
LTD., VS. CORPORATION OF THE CITY OF BANGALORE - AIR 1990 KAR 56.-6-
WP No. 11793 of 2016
4. SRI M.R.SEETHARAM VS. STATE BY SPECIAL PUBLIC PROSECUTOR AND OTHERS IN WP NO.8470/2020 DATED: 10.06.2022.
Sri.Ashwin S.Halady., learned counsel appearing on behalf of Lokayukta vehemently contended that the Writ Petition is premature. He argued by saying that based on the complaint given by the fifth respondent, Lokayukta has issued a notice. He drew the attention of the Court to the written complaint given by the fifth respondent to contend that the fifth respondent has given a written complaint on 16.10.2015 and Lokayukta issued notice on 30.11.2015 and the petitioner has suitably replied to the notice. Learned counsel also drew the attention of the Court to Proviso to Section 8 to contend that the issue about the delay would be looked into at the investigation stage not earlier. Hence, the petitioner cannot contend that there is a delay and Lokayukta has no jurisdiction to initiate the proceedings. Hence, he submitted that the Writ Petition may be dismissed.
Sri.K.Krishna., learned counsel appearing on behalf of BDA submits that the fifth respondent has given a complaint to the BDA. He further submits that the Lokayukta has issued -7- WP No. 11793 of 2016 notice to the Commissioner of the BDA and the Commissioner has issued notice to the petitioner. Learned counsel also submits that the petitioner has moved an application for modification of the layout plan but the same is not considered by the BDA since cases are pending before various Courts. Accordingly, he submits that appropriate order may be passed.
Heard, the rival contentions urged on behalf of the respective parties.
5. The following point would arise for my consideration:
Could the alleged action be a subject matter of investigation?
The facts are sufficiently stated and the same does not require reiteration. It is not in dispute that the petitioner owns the land in question and has formed the layout. It is also not in dispute that he has moved an application for modification of the layout plan which is yet to be considered by the BDA.
Suffice it to note that the fifth respondent filed a complaint and a true copy of the complaint is filed and the -8- WP No. 11793 of 2016 same is at Annexure-E. I have perused the same with utmost care. It is dated 16.10.2015. A perusal of the same depicts that it has been addressed right from the President of India to the Commissioner of the BDA. The allegation is that the petitioner has formed a road contrary to the CDP and RMP 2015, without forming 18.28 meters road.
A good deal of argument is addressed about the action taken by the Lokayukta in respect of a person who is not a public servant and also on Section 8 of the Karnataka Lokayukta Act, 1984.
To answer the point let me consider the statement of objects and reasons for passing the Lokayukta Act. The Bill provides for the appointment of a Lokayukta and one more Upa-Lokayukta to investigate and report on allegations or grievances relating to the conduct of public servants.
The Act sets out definitions. Section 2(2) defines "Allegation"; (12) defines "Public Servant"; Section 7 provides for the matters which may be investigated by the Lokayukta and an Upa-Lokayukta; Section 8 provides for matters that are not subject to investigation.-9-
WP No. 11793 of 2016
The provisions of the Act make it clear that in respect of a complaint involving an allegation concerned, it is an allegation against a public servant alleging that, such a public servant has abused his position to obtain any gain or favor to himself or any other person or to cause undue harm or hardship to any other person or he was actuated in the discharge of his functions as a such public servant by personal interest or improper or corrupt motive or is guilty of corruption, favoritism, nepotism or lack of integrity in his capacity as a such public servant or has failed to act in accordance with the norms of integrity in his capacity as a such public servant or has followed by public servants of the class to which he belongs. Therefore, it is clear that under the scheme of the Act, the Lokayukta or the Upa-Lokayukta are conferred power to investigate into a complaint involving a grievance or allegation against a public servant.
Section 7 deals with the power and the subject matter of investigation by the Lokayukta and Upa- Lokayukta. The grievance or the allegation should be in respect of an action as defined under the Act. The jurisdiction of Lokayukta and Upa- Lokayukta does not extend beyond what is specified in Section
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7 of the Act. They have no jurisdiction to entertain a complaint against a person other than a public servant as defined under the Act. The investigation to be conducted is only with reference to the action of the public servant, and the abuse of such office, alleging corruption, nepotism, lack of integrity on the part of the public servant, and any illegal gains made by such a public servant.
Reverting to the facts of the case, the petitioner is not a public servant. Since the petitioner is a private individual hence, the initiation of investigation proceedings against him is unsustainable.
Furthermore, Section 8 expressly sets out the matters not subject to investigation. Sub-section (2)(c) provides that the Lokayukta or the Upa-Lokayukta shall not investigate any complaint involving a grievance made after the expiry of a period of six months from the date on which the action complained against becomes known to the complainant. Clause
(d) of sub-section 2 of Section 8 provides that the Lokayukta or the Upa-Lokayukta shall not investigate any complaint involving an allegation after the expiry of five years from the date on
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WP No. 11793 of 2016which the action complained is alleged to have taken place. The proviso to the aforesaid two provisions makes it clear that if the complainant satisfies that he had sufficient cause for not making the complaint within the period specified in those clauses, the Lokayukta or the Upa-Lokayukta may entertain a complaint that has been made beyond the aforesaid period of limitation prescribed. Hence, what is required to be considered is whether the complaint made by the fifth respondent was on time. The answer is no. The reason is simple. The petitioner being a private individual formed the layout a decade ago i.e., way back in the year 2002. The complaint is made in the year 2015 i.e., after a lapse of 13 years. Suffice it to note that the complainant did not even satisfy the sufficient cause for not making the complaint within time. Hence, the action complained of against the petitioner cannot be the subject matter of an investigation.
Sri.Ashwin S.Halady., learned counsel in presenting his argument strenuously urged that under the proviso clause, the Lokayukta or the Upa-Lokayukta may entertain any complaint referred to in Clauses (c) and (d) provided the complainant satisfies that he had sufficient cause for not making the
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WP No. 11793 of 2016complaint within the period specified in those clauses. He argued by saying that the issue relating to delay would be considered at the time of the investigation.
I have considered the contention with utmost care. In my opinion, the said contention is satisfactorily hopeless for two reasons; one the complaint against the petitioner itself is not sustainable since he is not a public servant, and second that the complainant has not shown sufficient cause for not making the complaint within the period specified in Clauses (c) and (d) of Section 8 of the Act.
In my view, there is a failure to comply with the procedural requirements and the provisions of the Act. The action initiated against the petitioner is outside the powers of the Act. The whole scope and the purpose of the enactment have been nullified. I may venture to say that the Additional Registrar Inquiry No.1, Karnataka Lokayukta has failed to have regard to relevant considerations and disregarded relevant matters. Hence, I deem it proper to issue a Writ of Certiorari to quash the inquiry proceedings against the petitioner for excess of jurisdiction.
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WP No. 11793 of 2016The result is that the Writ Petition will be allowed. This Court orders a Writ of Certiorari. The Notice dated 30.11.2015 issued by the Addl.Registrar, Enquiry No.1, Karnataka Lokayukta, Bengaluru - first respondent in No:PÀA.¯ÉÆÃPï.©¹r/3884/2015 vide Annexure-F in so far as the petitioner is concerned is quashed. Consequently, the letter dated:08.02.2016 bearing No.BDA/AEE-1 (Planning)/D/T- 681/2015-16 vide Annexure-O and letter dated:20.02.2016 bearing No.BDA/AEE-1 (Planning)/D/T-700/2015-16 vide Annexure-Q are also quashed.
In the last resort, Sri.G.Krishnamurthy., learned Senior counsel appearing for the petitioner submits that in view of the quashing of the notice issued by Lokayukta, BDA may be directed to consider the application for modification of the layout plan submitted by the petitioner which is pending before the office of the BDA.
Submission is noted.
In view of the quashing of the notice issued by the Lokayukta to the petitioner, this Court orders a Writ of Mandamus, directing the BDA to consider the application
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WP No. 11793 of 2016submitted by the petitioner for modification of the layout plan in accordance with the law.
Resultantly, the Writ Petition is allowed.
Sd/-
JUDGE TKN List No.: 1 Sl No.: 6