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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.

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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.

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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

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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

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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

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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,

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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

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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.

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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

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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

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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.”

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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

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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

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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.”

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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/