Research › Search › Judgment

Karnataka High Court · body

2016 DIGILAW 305 (KAR)

B. M. Upendra Kumar v. State of Karnataka

2016-03-28

ANAND BYRAREDDY

body2016
ORDER : Heard the learned Senior Advocate Shri Udaya Holla appearing for the learned counsel for the petitioner and the learned Government Advocate. 2. The petitioner is said to be a member of a Hindu Undivided Family (HUF), which has been carrying on agricultural operations on agricultural lands in Koteswara village, Kundapur Taluk. The petitioner’s family is said to have purchased agricultural lands bearing Sy.Nos.13, 13/1, 14 and 15/2 of Byalalu village, Tavarekere Hobli, Bangalore South Taluk totally measuring about 17 acres 10 guntas under a registered sale deed dated 18.3.2005 in the name of the petitioner. Subsequent to the purchase, the khata of the property is said to have been transferred in the name of the petitioner. The record of rights pertaining to the property also reflected the petitioner as the owner and cultivator of the land in question. Copies of those records were annexed to the petitions. Subsequent to the purchase, the purchaser had approached M/s Karnataka Bank Limited for sanction of loan for carrying on agricultural and horticultural developments on the land in question. The petitioner had been granted a loan of Rs.35,00,000/- and the same was released in favour of the petitioner. He had utilized those funds for improving the land in question. He had constructed a farm house, labour quarters and a temple. The petitioner had also installed a bore well. Moreover, he had leveled the land and had carried extensive improvement on the land. This is sought to be demonstrated by producing photographs of the developments that have taken place on the land, over time. Before approaching the Bank for a loan, the petitioner claims that he had approached the Assistant Commissioner of the jurisdiction to ascertain whether there were any proceedings initiated against him under the Karnataka Land Reforms Act, 1961 (hereinafter referred to as ‘the KLR Act’, for brevity). It transpires that the Assistant Commissioner had assured the petitioner by issuing an endorsement dated 10.03.2006 to the effect that there were no such proceedings pending against him. It is thereafter that the petitioner is said to have been served with a notice calling upon him to show cause as to why proceedings ought not to be initiated under Section 83 of the KLR Act, for violation of Sections 79-A and 80 of the KLR Act. It is thereafter that the petitioner is said to have been served with a notice calling upon him to show cause as to why proceedings ought not to be initiated under Section 83 of the KLR Act, for violation of Sections 79-A and 80 of the KLR Act. The petitioner is said to have filed detailed objections stating that the property was purchased by the joint family and the family did not have any income in excess of Rs.2,00,000/- per year. The Assistant Commissioner, after hearing the parties, was however transferred before he could pass an order and there was another officer posted in his place, who did not choose to hear the petitioner, but proceeded to pass an order dated 26.06.2009, whereby it was opined that the purchase by the petitioner of the lands in question was in violation of the provisions of the KLR Act and had directed forfeiture of the lands in favour of the State, free from all encumbrances. The petitioner had challenged that order by way of an appeal before the Karnataka Appellate Tribunal. The Tribunal in turn, by its order dated 3.11.2009, had dismissed the appeal. It is in this background that the petitioner is before this Court. 3. The learned Senior Advocate Shri Udaya Holla appearing for the counsel for the petitioner would submit that, without entering upon the merits of the case, there is a primary ground on which the proceedings would have to be set at naught. He would point out that the sale of the land was on 18.03.2005. Thereafter, the petitioner had approached the Assistant Commissioner and had in fact sought clarification whether there were any proceedings initiated under the KLR Act and he was informed by an endorsement Annexure-“G” to the petitions, that there were indeed no such proceedings. It is thereafter that he has ventured to create a substantial loan of Rs.35,00,000/- on the security of the property, from M/s. Karnataka Bank Limited and has invested monies, with an effort in developing the land further. It is thereafter that he has ventured to create a substantial loan of Rs.35,00,000/- on the security of the property, from M/s. Karnataka Bank Limited and has invested monies, with an effort in developing the land further. In the event the petitioner had been placed on notice of the alleged violation, he would not have ventured to invest in the properties or created any interest in favour of third parties insofar as the property is concerned, thereby jeopardizing not only the interest of the third party, but he would not have also expended effort in the development by further investment and labour. In this regard, he would submit that the law is well-settled. The impugned order passed by the Assistant Commissioner directing forfeiture of the land to the State Government, is in exercise of revisional power. The section as it reads, does not indicate the time limit within which such an order could be passed and the law is well-settled that in respect of such proceedings which do not provide for a period of limitation within which such power could be exercised, it ought to be done within a reasonable time and in the case on hand, the proceedings have been initiated by issuing a notice to the petitioner after two years and three months from the date of the sale deed. This is not within reasonable time. For, it is demonstrable that third party interest has intervened by way of the security having been created on the strength of the land in question, in favour of the Bank and in which event, the exercise of such power to the detriment not only of the petitioner, but also to such third party, apart from the substantial loss that would occasion and would be rendered a waste, on account of such delayed proceedings, is well-settled. In this regard, the learned Senior Advocate would draw attention to a Division Bench judgment of this Court in W.A.No.8643/1996 Saroj Agencies vs. State of Karnataka, decided on 9.2.1998, where this Court, after referring to several judgments of the Supreme Court, has opined that delay, even of one year would be fatal to proceedings initiated in exercise of power such as the very provisions Sections 79-A and 79-B, that are invoked in the present case on hand. The Division Bench had opined that the Apex Court in a decision reported in State of Gujarat vs. Patel Raghav Natha AIR 1969 SC 1297 , while considering the suo motu power under the Bombay Revenue Code, has held that the revisional power has to be exercised within a reasonable time, which means not more than a few months. That judgment, it is pointed out by the Division Bench, has been followed in the case reported in Ramjas Foundation vs. Union of India AIR 1993 SC 852 . The Supreme Court again, in Ram Chand vs. Union of India 1994 (1) SCC 44 , has affirmed the same. In Mohamad Kavi Mohamad Amin vs. Fatmabai Ibrahim 1997(6) SCC 71 , the Supreme Court’s view is that there is no limitation prescribed for exercising revisional suo motu power and the same has to be exercised within a reasonable time. Having regard to the facts of that case, it was observed that the case involved a time period of more than one year and it was held to be unreasonable. The Division Bench therefore had concluded that for exercising suo motu powers, the authorities would have to exercise such powers within a reasonable time, which ought not to be more than one year. In a later decision in Joint Collector Ranga Reddy District and Another vs. D. Narsing Rao and Others (2015) 3 SCC 695 , the entire case law on this point has been reviewed by the Supreme Court and the learned Senior Advocate would point out that the Supreme Court has laid down that as to what is reasonable time, could vary from case to case and even a period of nine months could be fatal in a given case. Given the facts and circumstances of the present case on hand, it certainly would jeopardize not only the interest of the petitioner, but a third party as well, which is one of the reasons why it is insisted that such power should be exercised within a reasonable time. And therefore, would contend that on this primary issue, the petitions would have to be allowed and the impugned order quashed. 4. And therefore, would contend that on this primary issue, the petitions would have to be allowed and the impugned order quashed. 4. The learned Government Pleader on the other hand would point out that when a person contravenes the law, he is required to furnish to the Tahsildar having jurisdiction where the land is acquired, containing particulars of the lands, average annual income of himself and his family and such other particulars. The Tahsildar on receipt of the declaration and on such enquiry, send the same to the Deputy Commissioner who shall, by notification, declare that the land stands transferred to and vests in the State. It is pointed out that the petitioner had not complied with this requirement of reporting to the Tahsildar that he had contravened the provisions of the KLR Act and had failed to furnish the particulars. In the present case on hand, the authorities have realized that there was contravention of the law, in the petitioner who had an income exceeding Rs.2,00,000/-, having purchased agricultural land on 18.3.2005, and a notice in this regard had been issued to the petitioner in June 2006. Though the learned Government Pleader would submit that proceedings had been initiated as early as on 22.06.2006, there is no material produced along with the statement of objections in this regard. However, the learned Government Pleader would seek to place reliance on a document in the record, according to which a notice was issued to the petitioner calling upon him to show cause as to why the land should not be forfeited for the sale in respect of the same being in contravention of the aforesaid provisions. This document on verification, is found never to have been served on the petitioner, though it contains an endorsement that the addressee could not be traced in Katriguppe village. Thereafter, yet another order has been passed dated 1.9.2006, without serving a notice on the petitioner and in his absence, imposing fine for violating Section 79-C of the KLR Act. The said order however was never served on the petitioner though there was internal correspondence within the Department to take action against the petitioner. It is only on 18.06.2007 that a notice issued to the petitioner has been duly served on him. Therefore, the initiation of proceedings could be said to have been commenced on 18.06.2007. The said order however was never served on the petitioner though there was internal correspondence within the Department to take action against the petitioner. It is only on 18.06.2007 that a notice issued to the petitioner has been duly served on him. Therefore, the initiation of proceedings could be said to have been commenced on 18.06.2007. However, the learned Government Pleader would insist that it cannot be said that initiation of proceedings is therefore fatal to the proceedings, especially when the contravention is in respect of proceedings of a social beneficial legislation and in order to ensure that agricultural lands are not purchased by one wealthy and that it should be utilized by the landless tiller of the land and having regard to such a noble object under the KLR Act, it ought not to be defeated by invoking the rule of law that suo motu powers should be exercised within reasonable time. As regards the opinion expressed by the Supreme Court, there are no hard and fast rules laid down as to what would be reasonable time. It shall vary from case to case. In the present case on hand, if it is to be held that the period of little more than one year is fatal, it would result in a miscarriage of justice and hence, the learned Government Pleader would submit that the primary point raised on behalf of the petitioner should be turned down and the matter considered on merits. For otherwise, it would result in a wrong precedent being set, which would encourage other persons seeking to violate the law doing so with impunity. The present petitioner is said to be a film-star who is in the eye of the public and any publicity to the present case on hand would give a wrong signal as to the object and implementation of the law, in letter and spirit and hence, would submit that the petitions ought to be dismissed with costs. 5. In the above circumstances of the case, the primary question as raised by the learned Senior Advocate is whether the suo motu proceedings initiated against the petitioner are belated and that therefore, the exercise of such power is contrary to the settled principles of law. 6. 5. In the above circumstances of the case, the primary question as raised by the learned Senior Advocate is whether the suo motu proceedings initiated against the petitioner are belated and that therefore, the exercise of such power is contrary to the settled principles of law. 6. As discussed by the Supreme Court in the case of Joint Collector Ranga Reddy District (supra), it is to be noticed that the Supreme Court has taken note of the decision in State of Gujarat vs. Patel Raghav Natha 1969 (2) SCC 187 (supra) in a case under the provisions of the Bombay Land Revenue Code, 1879 and in the facts of that case, the power came to be exercised more than one year after the order and that was held to be too late. In yet another case in Mohd. Kavi Mohamad Amin vs. Fatmabai Ibrahim 1997 (6) SCC 71 (supra), it was a case under the Bombay Tenancy and Agricultural Lands Act, 1976. Even there, on facts, it was found that the proceedings had been initiated after a period of 9 months, which was held to be beyond reasonable time. In Santoshkumar Shivgonda Patil vs. Balasaheb Tukaram Shevale (2009) 9 SCC 352 , in a matter under the provisions of the Maharashtra Land Revenue Code, 1966, it was found that the Supreme Court has observed that, where the Legislature does not provide for any length of time within which the power of revision is to be exercised by the authority, suo motu or otherwise, it is plain that exercise of such power within reasonable time is inherent therein. In that particular case, it was opined that it ought to have been exercised within three years. In yet another case in State of Punjab vs. Bhatinda District Coop. Milk Producers Union Ltd. 2007 (11) SCC 363 , it was again opined that revisional jurisdiction should ordinarily be exercised within a period of three years, having regard to the purport in terms of the said Act and that it should be not exceed the period of five years. In Ibrahimpatnam Taluk Vyavasaya Coolie Sangham vs. K. Suresh Reddy 2003 (7) SCC 667 , it was opined that exercise of suo motu power ‘at any time’ would only mean that no specific period such as days, months or years are prescribed reckoning from a particular date. In Ibrahimpatnam Taluk Vyavasaya Coolie Sangham vs. K. Suresh Reddy 2003 (7) SCC 667 , it was opined that exercise of suo motu power ‘at any time’ would only mean that no specific period such as days, months or years are prescribed reckoning from a particular date. But, that shall not mean that ‘at any time’ should be unguided and arbitrary. ‘At any time’, must be understood as being within a reasonable time depending on the facts and circumstances of each case, in the absence of prescribed period of limitation. It was affirmed that suo motu revision undertaken after a long lapse of time even in the absence of any period of limitation, would be arbitrary and opposed to the concept of rule of law. Therefore, the law is settled that suo motu power should be exercised within a reasonable time and what is reasonable time would depend on the facts and circumstances of each case. 7. In the present case on hand, it is clear that the period within which the suo motu power has been exercised is at least 2 years and 3 months from the date of the alleged contravention. Whether this period could be said to be unreasonable, would have to be tested in the manner in which the petitioner has conducted himself in taking further steps pursuant to the purchase. In that, he has at the very first instance, got the khatha transferred, approaching the very Tahsildar of the jurisdiction who would have been fully aware of the material documents under which the petitioner was claiming the property and admittedly, the petitioner is a well-known film star and therefore, if there was contravention of the provisions of the KLR Act, it is a glaring circumstance which would have come to the attention of the said authority. The learned Government Pleader’s endeavour to contend that it is only upon the authorities becoming aware of the contravention that steps could be taken, is therefore diluted by the fact that in the very first instance, the petitioner has brought it to light that he has purchased agricultural land. The learned Government Pleader’s endeavour to contend that it is only upon the authorities becoming aware of the contravention that steps could be taken, is therefore diluted by the fact that in the very first instance, the petitioner has brought it to light that he has purchased agricultural land. Consequently, after having got the khatha transferred in his favour, he has approached a Bank seeking to develop the land and at the instance of the Bank, he has approached the Assistant Commissioner and has sought clarification as to whether there were any proceedings pending against him under the Land Reforms Act, particularly, with reference to Sections 79-A and 80. An endorsement has been issued by the very authority, informing him that there are no such proceedings, but the very authority has later thought it fit to direct the forfeiture of the lands. This would indicate that the State and its officers were made aware of the transaction in more ways than one. It is thereafter that he has proceeded to obtain a substantial loan of Rs.35,00,000/- and has created a security of the land in favour of the M/s. Karnataka Bank Ltd., which has provided the loan and the petitioner has expended time and effort in developing the land. It is after expiry of two years and three months that proceedings have been initiated and brought to the attention of the petitioner for the first time. The fervent plea on behalf of the State that the noble object of the KLR Act would be defeated if the transaction is not set at naught, is not a contention that can be appreciated. If the State was passionate in upholding the rigour of the law, its officers are required to jealously guard against such transactions and should act with greater expedition. 8. Therefore, if the petitioner had created interest of a third party and had invested monies and effort in the land in question, the same then being sought to be taken away by recourse to proceedings under the Land Reforms Act, as aforesaid, would result in a miscarriage of justice. 8. Therefore, if the petitioner had created interest of a third party and had invested monies and effort in the land in question, the same then being sought to be taken away by recourse to proceedings under the Land Reforms Act, as aforesaid, would result in a miscarriage of justice. Therefore, applying the law as laid down by the Supreme Court and as followed by this Court and referred to hereinabove, it can safely be said that suo motu power exercised by the authorities in this case is certainly barred by time, which is to the prejudice of the petitioner and as a result, jeopardizes his interest. Consequently, the action initiated by the respondents is bad in law and hence, the petitions are allowed. The impugned orders are quashed.