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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. COMMISSIONERBELLARY 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 THECOMPANIES ACT HAVING ITS
REGISTERED OFFICE ATUPPAL 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:
O R D E R
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
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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
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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
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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
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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
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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
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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.
: 10 :
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
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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
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submission, the learned Counsel for the petitioner placed
reliance on the following decisions:
(1) 2009(10) SCC 388Zenit Mastaplast Pvt Ltd. Vs. State of
Mahaharashtra and Others.
(2) LAWS(SC) 2010-9-41Kalabharati 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)-2006-9-71Star Paper Mills Ltd. Vs. State of Uttar Pradesh.
(6) LAWS (SC)-2009-9-85
Santoshkumar Shivgonda Patil vs. BalasahebTukaram 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. Stateof 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
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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.
: 19 :
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/