Shri B S Yeddyurappa vs The State Of Karnataka
2021 Latest Caselaw 109 Kant

                             1




       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 05TH DAY OF JANUARY, 2021

                          BEFORE


       THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA

          WRIT PETITION NO.29046 OF 2017(GM-RES)


BETWEEN:
SHRI B S YEDDYURAPPA
S/O LATE SIDDALINGAPPA
AGED ABOUT 75 YEARS
NO.381, 6TH CROSS
80 FEET ROAD, RMV II STAGE
DOLLARS COLONY
BANGALORE-560094
                                            ...PETITIONER

(BY SRI:C.V. NAGESH, SR. ADVOCATE A/W
    SMT: SWAMINI GANESH MOHANAMBAL, ADVOCATE)

AND:

1.     THE STATE OF KARNATAKA
       BY THE INSPECTOR OF POLICE
       BANGALORE CITY DISTRICT
       KARNATAKA LOKAYUKTA POLICE STATION
       BANGALORE-560001

2.     SRI JAYAKUMAR HIREMATH
       NO.889/A, "JENUGUDU"
       ITI LAYOUT, PAPAREDDY PALYA
                                2



     NAGARBHAVI 2ND STAGE
     BENGALURU-560072
                                               ...RESPONDENTS

(BY SRI: VENKATESH S ARABATTI, SPL.PP FOR R1;
    SRI: ASHOK HARANAHALLI, SR. ADVOCATE A/W
    SRI: R. SHASHIDHARA, ADVOCATE FOR R2)


     THIS WRIT PETITION IS FILED UNDER ARTICLE 226 & 227

OF CONSTITUTION OF INDIA R/W. SECTION 482 CR.P.C.,

PRAYING TO QUASH THE COMPLAINT DATED 30.4.2015 FILED

BEFORE THE R-1 AT ANNEX-A; AND QUASH THE FIR DATED

5.5.2015 IN CRIME NO.27/2015 REGISTERED BY R-1 AND

CONSEQUENTLY ALL FURTHER PROCEEDINGS PENDING ON THE

FILE XXIII ADDITIONAL CITY CIVIL & SESSIONS JUDGE AND

SPECIAL    JUDGE FOR LOKAYUKTA CASES, BENGALURU AT

ANNEX-B.


     THIS    WRIT   PETITION       HAVING   BEEN   HEARD   AND

RESERVED FOR ORDERS ON 16.12.2020 AND COMING ON FOR

PRONOUNCEMENT OF ORDER, THROUGH VIDEO CONFERENCE,

THIS DAY, THE COURT MADE THE FOLLOWING:
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                                 ORDER

The petitioner claiming to be one of the prominent political

leaders of the State of Karnataka and the State President of BJP

and Chief Minister of the State has filed this petition under

Article 226 and 227 of the Constitution of India r/w section 482

of Cr.P.C. seeking to quash the complaint dated

30.04.2015(Annexure-A) and FIR dated 05.05.2015 registered

against him in Cr.No.27/2015 for the alleged offences punishable

under section 13(1)(c), 13(1) (d) r/w 13(2) of Prevention of

Corruption Act, 1988 (for short 'P.C. Act') and sections 409, 413,

420, 120(b) r/w 34 IPC and sections 3 and 4 of The Karnataka

Land (Restriction on Transfer) Act, 1991.

2. The brief facts of the case are as follows:-

Respondent No.2 Sri. Jaykumar Hiremath filed a complaint

before the Superintendent of Police, Karnataka Lokayukta

(respondent No.1) on 30.04.2015 based on which, FIR in

Cr.No.27/2015 was registered against the petitioner

Sri. B.S. Yeddyurappa (former Chief Minister)

Sri. H.D. Kumaraswamy(Former Chief Minister), Smt. Vimala,

Channappa, Sri. M. Rajashekaraiah and other officials. In the

complaint, it was alleged that the land bearing Sy.Nos.7/1B,

7/1C and 7/1D each comprising 17 guntas totally measuring

1 acre 11 guntas of Gangenahalli village was acquired for

extension of Matadahalli Layout vide preliminary notification

dated 16.03.1976 under section 4(1) of Land Acquisition Act,

1984, published in Official gazette vide No.ALQ/LAI/PR122/75-76

dated 25.03.1976. Final notification under section 6(1) of the

Land Acquisition Act dated 30.11.1977 was published on

08.12.1977. Section 5(A) proceedings were conducted and an

award in respect of the above mentioned lands was passed and

approved by the Special Deputy Commissioner on 04.11.1978.

Possession of the land bearing Sy.No.7/1B and 7/1D was taken

and handed over to engineer section on 18.01.1979. Possession

of the land in Sy.No.7/1C was taken and handed over to

engineer section on 06.03.1979, and notification under section

16(2) of Land Acquisition Act was published in Karnataka

Gazette on 21.04.1988. One Thimmappa Reddy, T. Nagappa,

Muniswamappa were shown as owners and khatedhars of the

above mentioned lands. Thus the acquisition proceedings were

completed in respect of the lands vested with the Government

free from all encumbrances, as such, it was not permissible to

denotify these lands by any authorities including the Chief

Ministers.

3. When position stood thus, one Rajashekaraiah made an

application dated 28.02.2007 addressed to the Chief Minister

seeking de-notification of the above lands claiming that he was

in possession of the lands. Accused No.2 Sri. H.D. Kumaraswamy

who happened to be the Chief Minister at that point of time

directed his personal secretary to put up the file. Accordingly, file

was put up. However, the concerned officials promptly reported

that the land acquisition proceedings having already been

completed and notification under section 16(2) of the Land

Acquisition Act having been issued, the law do not permit de-

notification of the lands. Inspite of the said notings, accused

No.2 Sri. H.D. Kumaraswamy directed the authorities to enquire

into the matter and ascertain whether actual possession was

taken or not. The then Joint secretary put up a note reiterating

that the possession was already taken and notification under

section 16(2) of the Land Acquisition Act has been published and

this aspect be brought to the notice of the Governor and the

matter be closed. In the mean-time, Sri. H.D. Kumaraswamy

ceased to be the Chief Minister and the petitioner Sri. B.S.

Yeddyurappa occupied the position of Chief Minister of Karnataka

and file was put up before him and instantly, he passed an order

directing to de-notify the lands in question. Following this order,

the authorities published a notification dated 07.06.2010 de-

notifying the lands vide notification in No.UDD/424/MNX/2007

dated 07.05.2010.

4. It was further averred in the complaint that soon after

de-notification, Smt. Vimala(accused No.3) W/o Late

T.C. Seetharam who is none other than the mother-in-law of

Sri. H.D. Kumaraswamy-the Ex.Chief Minister claiming herself as

Power of Attorney holder of the owners of the land executed sale

deed in favour of her son Sri. T.S. Channappa. Rajashekaraiah

claiming to be in possession of the land filed a civil suit in

O.S.No.6165/1994 claiming that he had acquired title to the

properties from one Mr. Ameer Jan. Said suit came to be

dismissed. Against the dismissal order, an appeal was filed and

this Court allowed the appeal and set-aside the judgment and

decree of the trial Court and remanded the matter for fresh

disposal. According to the complainant, the above facts clearly

reveal that Sri. H.D. Kumara Swamy, the Ex-Chief Minister of

Karnataka conspired with all concerned such as M.

Rajashekaraiah, B.S. Yeddiyurappa the then Chief Minister of

Karnataka and Prl. Secretary, Government of Karnataka,

Department of Housing and Urban Development, his mother-in-

law Smt. Vimala and his own brother-in-law Channappa to knock

off the valuable property belonging to the Government and

adopted back door methods taking advantage of their official

position. It was also alleged that though the properties were

purchased by T.S. Channappa, they were actually purchases

made for and on behalf of Sri. H.D. Kumaraswamy, the then Ex-

Chief Minister of Government of Karnataka.

5. Sri. C.V. Nagesh, learned Senior counsel appearing for

the petitioner at the outset submitted that the prosecution

launched against the petitioner is illegal and an abuse of process

of Court; that the allegations made in the complaint even if

accepted on their face value do not constitute the ingredients of

the offences insofar as the petitioner is concerned. The petitioner

ordered for de-notification based on the notings put up by the

officials pursuant to the powers vested in him under section 48

of the Land Acquisition Act and as such no illegalities or

malafides could be imputed to the petitioner especially when the

facts disclose that order was made in discharge of the official

duties and the power vested with the petitioner.

6. Referring to the averments made in the complaint that a

suit was filed by the aforesaid Rajashekariah claiming possession

of the land in question, learned Senior counsel would submit that

there being no material to show that the possession of the land

was taken over by the Department and the land had vested with

the Government, no fault could be found with the orders passed

by the petitioner so as to fasten criminal liability on him. In

support of his submission, learned Senior Counsel has placed

reliance on the decisions of the Hon'ble Supreme Court in

SPECIAL LAND ACQUISITION OFFICER, BOMBAY AND OTHERS v.

M/S. GODREJ AND BOYCE, (1988) 1 SCC 50 and RAGHBIR

SINGH SEHRAWAT v. STATE OF HARYANA AND OTHERS, (2012)

1 SCC 792 and the decision of this Court in Crl.P.No.7274/2012

and connected matters dated 18.12.2015.

7. To bolster up his submission that the order of

de-notification passed by the petitioner is an administrative

order which by itself does not give rise to any criminal action,

much less for an offence under section 409 IPC, learned Senior

Counsel has placed reliance on the decision of the Hon'ble Apex

Court in COMMON CAUSE, A REGISTERED SOCIETY v. UNION OF

INDIA AND OTHERS, (!999) 6 SCC 667, while setting aside the

observations made by the High Court that the Minister who is

the executive head of the Department is elected by the people

and is elevated to a position where he holds sacred trust on

behalf of the people, the Hon'ble Apex Court in para 159 of the

above judgment held that it is only a philosophical concept and

reflects the image of virtue in its highest conceivable perfection.

This philosophy cannot be employed for determination of the

offence of 'criminal breach of trust' which is defined in the Indian

Penal Code. Whether the offence of 'criminal breach of trust' has

been committed by a person has to be determined strictly on the

basis of definition of that offence set out in the Penal Code.

8. The learned Senior Counsel has also pointed out that

the "Doctrine of Public Trust", though enjoins upon the

Government, to protect resources for the enjoyment of the

general public and to permit their use for providing ownership or

commercial purpose, but this Doctrine cannot be invoked to

fasten criminal liability against the ministers and public servants

entrusted with public duties. In other words, it is the submission

of the learned Senior Counsel that in order to fix criminal

liability, the whole matter will have to be decided on the

principles of criminal jurisprudence and an offence could be said

to have been committed only when the ingredients of that

offence as defined in the statute are stated to have been

satisfied. It is the submission of the learned Senior Counsel that

there being no material to show that by the act of de-

notification, the petitioner has derived any pecuniary advantage,

the basic ingredients constituting the offences under section

13(1) (c) and 13 (1) (d) of PC Act are not made out and

therefore, initiation of criminal action against the petitioner is

illegal, baseless and fraught with malafides and vindictiveness.

9. In support of the above submission, learned Senior

Counsel has referred to the decision of the Hon'ble Supreme

Court in A. SUBAIR v. STATE OF KERALA, (2009) 6 SCC 587

to drive home the point that by the act of de-notified, the

petitioner has acted in best interest of the public and the public

revenue and therefore his decision cannot be faulted with.

10. On behalf of Respondent No.1 Sri. Venkatesh. S

Arabatti, learned Spl. PP countered the above submissions

pointing out that the complaint in question is demonstrative of

abuse of power by two Chief Ministers who not only ignored the

law and the legal principles, but also deliberately and with

dishonest intention de-notified the lands which had been

acquired by the Government decades ago and which had vested

with the State in terms of Land Acquisition Act, 1984. He pointed

out that the de-notification order was made on the request of

Rajashekariah who had no right to the lands. The de-notified

lands were sold by the mother-in-law of Sri. H.D. Kumaraswamy

to her own son and brother-in-law of Sri. H.D. Kumaraswamy

based on the de-notified ordered by the petitioner which smacks

of a well designed conspiracy to make unlawful gain. Even

though the aforesaid Rajashekaraiah had no title whatsoever to

the lands in question, he filed a civil suit showing one Ameer Jan

as the land owner. But the said Ameer Jan had earlier made an

application for de-notification which was rejected by the

concerned authorities. After such rejection, Rajashekariah made

an application showing Ameer Jan as the owner in connivance

with Sri. H.D. Kumaraswamy and members of his family and

managed to de-notify the lands in collusion with the petitioner

which squarely attract the offence under section 13(1) (c), 13(1)

(d) r/w 13(2) of PC Act and sections 409, 418, 420, 120(b) and

section 24 of IPC. During the course of arguments learned

Spl.PP for respondent No.1 has made available the copies of the

note sheets in UDD No.424/2007 and copies of the orders in

Misc. No.472/98, O.S.No.6163/1994 and MFA No. 5835/2005.

11. On behalf of respondent No.2, initially a statement of

objections was filed, strongly opposing the petition interalia

contending that the petition is not at all maintainable either

under law or on facts of the case, and the same is filed with the

sole intention of protracting and stalling the proceedings.

Respondent No.1 took up a plea that the acquisition proceedings

in relation to the lands in question were completed on

21.04.1988 and the land had vested with the State Government.

A person by name Sri. Ameer Jan claiming to have purchased

the same from the original owners had made application seeking

de-notification of the said lands. Said application was rejected on

the ground that the lands had been acquired by the State in

accordance with the provisions of Land Acquisition Act, 1894 and

therefore there was no scope to de-notify the same after

publishing the notification under section 16(2) of the Land

Acquisition Act, 1894.

12. In his objection statement, respondent No.2

elaborately narrated the sequence of events leading to

de-notification of the lands based on the application filed by

accused No.5 Sri. Rajashekaraiah and contended that the above

events clearly disclosed cognisable offences and therefore the

FIR was rightly registered in accordance with the law laid down

by the Hon'ble Supreme Court in the case of LALITHA KUMARI v.

GOVERNMENT OF UTTAR PRADESH AND OTHERS, AIR 2014 SC

187 and further contending that the grounds urged by the

petitioner do not fall within any of the categories specified by the

Hon'ble Supreme Court in STATE OF HARYANA AND OTHERS V.

BHAJAN LAL AND OTHERS, AIR 1992 SC 604, justifying

quashment of the proceedings, sought for dismissal of the

petition.

13. When the matter was listed for hearing, learned

Senior Counsel for petitioner moved an application seeking

amendment of the petition so as to urge a further ground to

quash the criminal proceedings in view of the insertion of section

17A to the PC Act. The respondent No.1 opposed the application

contending that section 17A of the amended PC Act was not

applicable to the facts of the case since the case was registered

much prior to the amended PC Act came into force. However,

after hearing the parties, the amendment was allowed and the

petitioner was permitted to urge additional ground based on the

amended provision of section 17A of the PC Act and accordingly

amended petition was filed.

14. On the heel of filing the amended petition, learned

counsel for respondent No.2 came up with a memo dated

09.12.2020 seeking leave to withdraw the petition on the ground

that in view of the insertion of section 17A of the PC Act,

respondent No.2 is left with no other option than to concur with

the claim of the petitioner that the investigation/inquiry/ enquiry

cannot be undertaken in the absence of an appropriate

permission / approval / sanction / consent by the appropriate

authority as the subject matter relates to an order passed by the

public servant in discharge of his duties as a public servant.

Further in the memo, he asserted that "The respondent No.2

who has been able to lay his hands upon the documents relating

to the subject matter in question which event happened

subsequent to the filing of the complaint do demonstrably

indicated that the petitioner has acted on the basis of the

recommendations which came to be made by the Officers

concerned."

15. Since the averments made in the Memo were

obviously contrary to the allegations found in the complaint and

the second respondent being only an informant having no locus

standi whatsoever to withdraw the criminal prosecution launched

against the petitioner, he was directed to appear before the

Court to explain the circumstances of filing the said memo. In

response to this order, respondent No.2 engaged Senior Counsel

Sri.Ashok Haranahalli and filed an affidavit reiterating the

averments made in the memo and further asserted that as on

the date of filing the complaint, he was not having materials as

were necessary that would connect the accused with commission

of the offence and that subsequently, he was able to advert to

the relevant documents which had come on record in the course

of investigation of the crime to prima facie establish the offence

said to have been committed by the accused and that the

documents that were looked into by the second respondent

related to de-notification of 17 guntas of land in each of

Sy.Nos.7/1B, 7/1C and 7/1D of Gangenahalli village, Kasaba

hobli, Bengaluru North Taluk. He further stated that,

"As is evident from the case file maintained by the State relating to the de-

notified of the aforementioned lands, it is apparently evident that on 01.10.2007, Sri.H.D.Kumaraswamy has directed those who are concerned in the matter to examine the issue with regard to the Bangalore Development Authority having really taken possession of the aforementioned lands in view of the law laid down not only by this Hon'ble Court but also by the Apex court and to submit a report therefrom."

Further, in para 8 of the affidavit, respondent No.2 averred thus:

"I respectfully submit that a careful examination of the record of the case would reveal that the petitioner while placing reliance on the notings put up by the officials concerned in the matter, which in a nutshell, indicated that the Bangalore Development Authority has not been able to have the advantage of the possession of the notified lands and that fact of taking possession of the lands has remained only on paper though not actually taking of physical possession of the said lands and

that a private layout has also been formed and that number of unauthorized structures have also come into existence over the lands notified for acquisition etc., has ordered de-notified of the said lands."

16. The contents of the above affidavit, I may hasten to

add, when compared with the facts and events narrated by

respondent No.2 in the complaint lodged by him in the year

2015, make it evident that an ingenious attempt has been made

to bail out the petitioner and other accused persons named in

the FIR. Though respondent No.2 has no legal right or locus-

standi to seek withdrawal of the complaint or to enter into

composition with accused, yet, the hidden motive of respondent

No.2 is glaringly evident from the manner in which he has made

audacious statements in the affidavit contrary to the records

which he claimed to have been "able to advert' and "which had

come on record in the course of investigation" and sought to

justify them by engaging a Senior counsel on his behalf. It is

really preposterous and disgusting to note that in his eagerness

to justify the acts of the petitioner, he has even gone to the

extent of taking upon himself the role of an investigator,

prosecutor and the Judge, making a grand declaration on oath

that "a careful examination of the record of the case" indicated

to him that "possession of the land has remained only on paper"

and that "number of un-authorised structures have also come

into existence over the lands notified for acquisition etc". If so, it

is not explained by him as to why accused No.3 claiming to be

the power of attorney of fictitious owners would execute

registered sale deeds in favour of accused No.4 and deliver

physical possession to him immediately after de-notification

ordered by the petitioner, if infact the "acquired land" was in the

possession of encroachers as contended by respondent No.2 in

his affidavit.

17. From the reading of the above affidavit and the memo,

one can readily draw an inference that respondent No.2 has

either fallen a prey to the allurements or has yielded to the

pressure of the petitioner or other accused persons named in the

FIR, as it is evident that at the instance of the petitioner, petition

was amended solely with a view to create a ruse for respondent

No.2 to seek withdrawal of the complaint. There is much to be

said about the dubious conduct of respondent No.2, but it may

not be appropriate for me to discuss in detail the falsity of the

assertions made on oath by respondent No.2 at this stage, as

the matter is still under investigation and therefore I refrain from

discussing the matter further except to direct the investigating

agency as well as the trial Court which is seized of the matter, to

take note of the unscrupulous, immoral and unholy nexus

between the petitioner and respondent No.2 and other offenders

and take suitable action as per law at appropriate stage.

18. Insofar as the locus-standi of respondent No.2 to

intermeddle with the course of criminal justice by entering into

illegal composition with accused No.2 is concerned, suffice it to

note that the Apex Court in GIAN SINGH v. STATE OF PUNJAB,

(2012) 10 SCC 303, has cautioned that; "in respect of serious

offences like murder, rape, dacoity, etc; or other offences of

mental depravity under IPC or offences of moral turpitude under

special statutes, like Prevention of Corruption Act or the offences

committed by public servants while working in that capacity, the

settlement between offender and victim can have no legal

sanction at all."

19. In STATE OF MADHYA PRADESH v. LAXMI NARAYAN

AND OTHERS, (2019) 5 SCC 688, the Hon'ble Supreme Court

has further observed thus:-

"Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc., cannot provide for any basis for quashing criminal proceedings involving such offences."

20. In the light of this legal and factual position, the memo

filed by respondent No.2 seeking to withdraw the complaint is

rejected.

21. Now coming to the central issue, it is relevant to note

that the petitioner has approached this Court seeking quashment

of the proceedings at the initial stage of commencement of

investigation. Law is now well settled that the inherent powers

under section 482 of Cr.P.C. can be exercised to give effect to an

order under the Code to prevent abuse of process of the court or

to otherwise secure the ends of justice. Though the petitioner

has also invoked Article 226 and 227 of the Constitution of India,

the reliefs claimed in the petition fell within the ambit of section

482 Cr.P.C and the inherent powers under this section cannot be

exercised to stifle a legitimate prosecution. The High Court

should normally refrain from giving a prima facie decision in a

case where all the facts are incomplete and hazy; more so, when

the evidence has not been collected and produced before the

Court and the issues involved, whether factual or legal, are of

such magnitude that they cannot be seen in their true

perspective without full material.

22. In RISHIPAL SINGH v. STATE OF UTTAR PRADESH AND

ANOTHER, (2014) 7 SCC 215, it is held by the Hon'ble Apex

Court as under:-

"What emerges from the above judgments is that when a prosecution at the initial stage is asked to be quashed, the tests to be applied by

the Court is as to whether the uncontroverted allegations as made in the complaint prima facie establish the case. The Courts have to see whether the continuation of the complaint amounts to abuse of process of law and whether continuation of the criminal proceeding results in miscarriage of justice or when the Court comes to a conclusion that quashing these proceedings would otherwise serve the ends of justice, then the Court can exercise the power under Section 482 Cr.P.C. While exercising the power under the provision, the Courts have to only look at the uncontroverted allegation in the complaint whether prima facie discloses an offence or not, but it should not convert itself to that of a trial Court and dwell into the disputed questions of fact."

23. Tested on the touchstone of the above principles, the

allegations made in the complaint and the material produced in

support thereof, in my view, prima facie disclose the ingredients

of the offences alleged against the petitioner warranting a

thorough investigation.

24. Learned Senior Counsel appearing for petitioner does

not dispute the fact that acquisition proceedings initiated in

respect of the lands bearing Sy.Nos.7/1B, 7/1C and 7/1D of

Gangenahalli village, Kasaba hobli, Bengaluru North Taluk,

measuring 1 acre 11 guntas along with surrounding properties

had reached finality and final notification under section 6(2) of

the Land Acquisition Act, 1894 was published on 8.12.1977. The

only contention set up by the petitioner is that possession of the

land was not taken and handed over to the Engineering Section

of Bangalore Development Authority and therefore the petitioner

was empowered to de-notify the lands in terms of Section 48 of

the Land Acquisition Act. But a perusal of the case file clearly

discloses that the file was reopened by accused No.2 -

Sri.H.D.Kumaraswamy after he became the Chief Minister. The

Joint Secretary of Urban Development Department after

summarising the details of all the earlier proceedings in para 17

has recorded thus:-

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¥ÀæzsÁ£À PÁAiÀiðzÀ²ðAiÀĪÀgÀÄ} The High Court order dated 17.7.07 in Writ Petition No.3415 of 2005 may please be perused. In the High Court order Para "A" of its page 11 may please be perused.

19. PÀArPÉ-17 gÀ°è «ªÀj¸À¯ÁzÀAvÉ ¥Àæ²ßvÀ d«ÄäUÉ ¨sÀÆ ¸Áé¢Ã£À ¥ÀæQæAiÉÄà ¥ÀÆtðUÉÆArgÀĪÀ »£É߯ÉAiÀÄ°è PÀqÀvÀ ªÀÄÄPÁÛAiÀÄUÉƽ¸ÀĪÀ §UÉÎ DzÉñÀ PÉÆÃj ªÀiÁr¹zÉ.

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21. PÀqÀvÀªÀ£ÀÄß PÀ¼ÉîzÀ ªÀµÀð ªÀiÁ£Àå gÁdå¥Á®gÀ ¸À®ºÉUÁgÀjUÉ ¸À°è¸À¯ÁVvÀÄÛ. PÀArPÉ-18 gÀ°è ¥Àæ.PÁ. gÀªÀgÀ ¸À» E®èzÉ PÀqÀvÀªÀ£ÀÄß ±ÁSÉUÉ »A¢gÀÄV¸À¯ÁVgÀÄvÀÛzÉ.

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13.02

23. PÀArPÉ 22gÀAvÉ PÀqÀvÀªÀ£ÄÀ ß '¹' ªÀUÀðzÀ°è ªÀÄÄPÁÛAiÀÄUÉƽ¸À§ºÀÄzÀÄ.

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02.03.09

From the above notings, it is clear that De-notification

Committee had rejected the proposal for de-notification and the

issue had come to an end as back as in 1988 and it was

ultimately reported by the concerned officials that there was no

scope for reopening the file or to de-notify the lands.

25. It is also pertinent to note that eventhough learned

Senior Counsel has vehemently argued that the civil litigations

initiated by one Sri.Rajashekaraiah indicated that possession of

the subject properties was still with the land owners and

unauthorized structures had come in the said properties and

therefore, the petitioner in his capacity as Chief Minister was well

within his powers to denotify the lands in respect of which

possession was not obtained by the Government is falsified from

the following notings at para 27, 28, 29 which read as under:-

27. G¥À DAiÀÄÄPÀÛgÀÄ (¨sÀÆ. ¸Áé), ¨ÉAUÀ¼Æ À gÀÄ C©ªÀÈ¢Ý ¥Áæ¢PÁgÀ, ¨ÉAUÀ¼ÀÆgÀÄ EªÀgÀÄ ¢£ÁAPÀ: 7-5-2010 gÀAzÀÄ ¸ÀPÁðgÀPÌÉ ¸À°è¹gÀĪÀ ªÀgÀ¢AiÀÄ°è ¨ÉAUÀ¼ÀÆgÀÄ GvÀÛgÀ vÁ®ÆèPÀÄ, PÀ¸À¨Á ºÉÆç½, UÀAUÉãÀºÀ½î UÁæªÀÄzÀ ¸ÀªÉð £ÀA.7/1©, 7/1¹ ªÀÄvÀÄÛ 7/1r gÀ°è vÀ¯Á 17 UÀÄAmÉAiÀÄAvÉ MlÄÖ 1 JPÀgÉ 11 UÀÄAmÉ d«ÄãÀ£ÀÄß ªÀÄoÀzÀºÀ½î ªÀÄÄAzÀĪÀjzÀ §qÁªÀuÉUÁV ¢£ÁAPÀ: 30-11-1977 gÀAzÀÄ CAwªÀÄ C¢¸ÀÆZÀ£É ºÉÆgÀr¸À¯ÁVgÀÄvÀÛzÉ. ¸ÀzÀj d«ÄãÀÄUÀ½UÉ LwÃ¥ÀÄð, gÀa¹, ¨sÀÆ«ÄAiÀÄ ¸Áé¢Ã£ÀªÀ£ÀÄß PÀæªÀĪÁV ¢£ÁAPÀ: 18-1-1979, 6-3-1982 ªÀÄvÀÄÛ 18-1- 1983gÀAzÀÄ vÁAwæPÀ «¨sÁUÀPÌÉ ªÀ»¹PÉÆqÀ¯ÁVzÉ. ¨sÀƸÁé¢Ã£À PÁAiÉÄÝ PÀ®A

16(2)gÀ C¢¸ÀÆZÀ£ÉAiÀÄ£ÀÄß ¢£ÁAPÀ: 21-4-1988 gÀAzÀÄ PÀ£ÁðlPÀ gÁdå ¥ÀvæÀzÀ°è ¥ÀæZÀÄgÀ ¥Àr¸À¯ÁVgÀÄvÀÛzÉ.

28. ¸ÀªÉð £ÀA.7/1© gÀ°è£À 17 UÀÄAmÉ d«ÄäUÉ ²æÃ. f. wªÀÄägÉrØ, 7/1¹ gÀ°è£À 17 UÀÄAmÉ d«ÄäUÉ ²æÃ. n. £ÁUÀ¥àÀ ªÀÄvÀÄÛ ªÀÄÄ£À±ÁªÀÄ¥Àà ªÀÄvÀÄÛ 7/1r gÀ°è£À 17 UÀÄAmÉ d«ÄäUÉ ²æÃ. ªÀÄÄ£À±ÁªÀÄ¥À £ÀªÀgÄÀ £ÉÆÃn¥sÉÊqï SÁvÉzÁgÀgÁVgÀÄvÁÛgÉ. ¨sÀƪÀiÁ¥ÀPÀgÀ ¸ÀܼÀ vÀ¤SÉ ªÀgÀ¢AiÀÄAvÉ F d«ÄãÀ£À°è ZÀzÄÀ jzÀAvÉ C£À¢PÀÈvÀ PÀlÖqÀUÀ½zÀÄÝ, ¥À²ÑªÀÄ ¨sÁUÀzÀ°è zÉÆqÀØzÁzÀ M¼ÀZÀgÀAr ªÀÄvÀÄÛ UÁæªÀÄoÁt ¥ÀæzÉñÀªÁVzÀÄÝ, G½zÀAvÉ F d«ÄäUÉ ºÉÆA¢PÉÆAqÀAvÉ gÉ«£ÀÆå SÁ¸ÀV §qÁªÀuÉ gÀZÀ£ÉAiÀiÁVzÀÄÝ, F d«ÄãÀÄ ºÁ° ¨sÀƪÀiÁ°ÃPÀgÀUÀ¼ÀÄ C£À¢PÀÈvÀªÁV ¸Áé¢Ã£Á£ÀĨsÀªÀzÀ°gÀĪÀÅzÀÄ PÀAqÀÄ §A¢zÀÄÝ ªÀÄvÀÄÛ CPÀÌ¥ÀPÀÌ ¥Áæ¢PÁgÀ¢AzÀ §qÁªÀuÉ gÀZÀ£ÉAiÀiÁVgÀĪÀÅzÀÄ PÀAqÀÄ §gÀĪÀÅ¢®è.

29. ¢£ÁAPÀ: 13.6.2005 gÀ°è ¤ÃrgÀĪÀ DzÉñÀzÀ ¥ÀæPÀgÀt ¸ÀASÉå: Misc 472/1998UÉ ¸ÀA§AzsÀ¥ÀnÖzÄÀ Ý, F ¥ÀæPÀgÀtzÀ°è ¨sÀƪÀiÁ°ÃPÀgÀÄUÀ¼ÀÄ CfðzÁgÀgÁVzÀÄÝ, £ÁåAiÀiÁ®AiÀÄzÀ DzÉñÀzÀAvÉ F d«Ää£À°ègÄÀ ªÀ PÀlÖqÀUÀ¼À£ÀÄß £É®¸ÀªÀÄUÉƽ¸À¨ÁgÀzÉAzÀÄ ªÀÄvÀÄÛ ¨sÆÀ ªÀiÁ°ÃPÀgÄÀ UÀ¼À ¸Áé¢Ã£Á£ÀĨsÀªÀªÀ£ÀÄß CrØ ¥Àr¸À¨ÁgÀzÉAzÀÄ ¥Áæ¢PÁgÀPÉÌ ¸ÀÆa¹gÀĪÀÅzÀÄ PÀAqÀÄ §A¢gÀÄvÀÛzÉ. F DzÉñÀzÀ «gÀÄzÀÞ ¨ÉAUÀ¼ÀÆgÀÄ C©ªÀÈ¢Þ ¥Áæ¢PÁgÀªÅÀ MFA 5835/05 gÀAvÉ GZÀÒ £ÁåAiÀiÁ®AiÀÄzÀ°è ªÉÄîä£À«AiÀÄ£ÀÄß ¨sÀÆUÀ±À: ¥ÀÄgÀ¸ÀÌj¹ Misc 472/1998UÉ ¢£ÁAPÀ: 13.6.2005gÀ DzÉñÀªÀ£ÀÄß ªÀeÁPÀj¹ ¨sÀƪÀiÁ°ÃPÀgÀ °TvÀ ªÀÄ£À«AiÀÄ£ÀÄß ¥ÀqÉAiÀÄzÉ DzÉò¹gÀĪÀ ¥ÀæPÀgÀt ¸ÀASÉå: N.J¸ï. 6163/94, ¢£ÁAPÀ: 31-3-1994, ¢£ÁAPÀ: 31- 3-1998gÀ £ÁåAiÀiÁ®AiÀÄzÀ DzÉñÀªÀ£ÀÄß ªÀeÁPÀj¹ F ¥ÀæPÀgÀtªÀ£ÀÄß ºÉƸÀzÁV ªÀÄÄAzÀĪÀj¸À®Ä DzÉò¹gÀĪÀÅzÀÄ PÀAqÀÄ §gÀÄvÀÛzÉ. ¹«¯ï £ÁåAiÀiÁ®AiÀÄzÀ ¥ÀæPÀgÀt ¸ÀASÉå: N.J¸ï. 6163/94gÀ ºÁ°Ã ªÀ¸ÀÄÛ ¹ÜwAiÀÄ£ÀÄß ¤ÃqÀ®Ä ¥Áæ¢PÁgÀzÀ PÁ£ÀÆ£ÀÄ C¢PÁjUÀ½UÉ PÉÆÃjzÀÄÝ, CzÀgÀAvÉ ¢£ÁAPÀ: 4-5-2010gÀ PÁ£ÀÆ£ÀÄ C¢PÁjUÀ¼À ªÀgÀ¢ F PɼÀPÀAqÀAvÉ EgÀÄvÀÛzÉ.

26. These facts clearly disclose that there was no challenge

to the acquisition proceedings and no orders were passed by any

Court setting aside the acquisition that had attained finality in

1988.

What is relevant to be noted is that respondent No.2 who

claims to have obtained copy of the proceedings through R.T.I.

did not produce two pages of the file which contained the notings

made by the concerned officials immediately preceding the order

made by the petitioner. They are extracted herebelow:

33. ¥ÀÄlÀ 32 gÀ°è÷ ¥Áæ¢üPÁgÀªÀÅ ¥Àæ²ßvÀÀ d«ÄäUÉ DªÁqïð gÀa¹, ¨sÀÆ«ÄAiÀÄ ¸Áé¢üãÀªÀ£ÀÄß ¢£ÁAPÀ 18-1-1979, 6-3-1982 ªÀÄvÀÄÛ 18-1-1983gÀ°è ««zsÀ ¢£ÁAPÀUÀ¼ÀAzÀÄ ¸Áé¢üãÀPÉÌ vÉUÉzÀÄPÉÆAqÀÄ vÁAwæPÀ «¨sÁUÀPÉÌ ªÀ»¹ PÉÆqÀ¯ÁVzÉ JAzÀÄ ºÁUÀÆ ¨sÀƸÁé¢üãÀ PÁAiÉÄÝ ¸ÉPÀë£ï. 16(2)gÀ C¢ü¸ÀÆZÀ£ÉAiÀÄ£ÀÄß PÀ£ÁðlPÀ gÁdå¥ÀvÀæzÀ°è ¢£ÁAPÀ. 21.4.1988gÀAzÀÄ ¥ÀæZÀÄgÀ¥Àr¸À¯ÁVzÉ JAzÀÄ ªÀgÀ¢ ¤ÃqÀ¯ÁVgÀĪÀ »£É߯ÉAiÀÄ°è, ¥Àæ²ßvÀÀ ¨ÉAUÀ¼ÀÆgÀÄ GvÀÛgÀ vÁ®ÆèPÀÄ, PÀ¸À¨Á ºÉÆç½, UÀAUÉãÀºÀ½î UÁæªÀÄzÀ ¸ÀªÉð £ÀA.2/1©, 1¹, 1r gÀ°è£À MlÄÖ 1 JPÀgÉ 11 UÀÄAmÉ d«ÄãÀ£ÀÄß ¨sÀƸÁé¢üãÀ¢AzÀ PÉå©qÀ®Ä PÁ£ÀƤ£À CqÀZÀuÉ EgÀÄvÀÛzÉ. ¥Áæ¢üPÁgÀzÀ G¥À DAiÀÄÄPÀÛgÀÄ vÀªÀÄä ªÀgÀ¢AiÀÄ°è F d«ÄäUÉ ¸ÀA§A¢ü¹zÀAvÉ ¨sÀƪÀiÁ°ÃPÀgÀÄ £ÁåAiÀiÁ®AiÀÄzÀ°è Cfð ¸ÀASÉå Misc.472/1998£ÀÄß ¸À°è¹zÀÄÝ, ªÀiÁ£Àå £ÁåAiÀiÁ®AiÀĪÀÅ ¥Àæ²ßvÀÀ ¥ÀæzÉñÀzÀ°ègÀĪÀ PÀlÖqÀUÀ¼À£ÀÄß £É®¸ÀªÀÄUÉƽ¸À¨ÁgÀzÉAzÀÄ ªÀÄvÀÄÛ ¨sÆ À ªÀiÁ°ÃPÀgÀ ¸Áé¢üãÀ C£ÀĨsÀªÀªÀ£ÀÄß CqÀØ¥Àr¸À¨ÁgÀzÉAzÀÄ ¥Áæ¢üPÁgÀPÉÌ ¸ÀÆa¹gÀĪÀÅzÁV w½¸ÀÄvÁÛ, F DzÉñÀzÀ «gÀÄzÀÝ ¥Áæ¢üPÁgÀªÀÅ MFA.5835/05£ÀÄß ªÀiÁ£Àå GZÀÒ £ÁåAiÀÄ®AiÀÄzÀ°è ªÉÄîä£À« ¸À°è¹zÀÄÝ, ¢£ÁAPÀ. 3-8-2005gÀ°è £ÁåAiÀiÁ®AiÀĪÀÅ ªÉÄîä£À«AiÀÄ£ÀÄß ¨sÁUÀ±À: ¥ÀÄgÀ¸ÀÌj¹, CfðzÁgÀgÀ Misc.472/1998PÉÌ C£ÀÄUÀÄtªÁV ¢£ÁAPÀ. 13-6-2005gÀAzÀÄ ¤ÃrzÀÝ DzÉñÀªÀ£ÀÄß ªÀeÁ ªÀiÁr ¨sÀƪÀiÁ°ÃPÀgÀ °TvÀ ªÀÄ£À«AiÀÄ£ÀÄß ¥ÀqÉAiÀÄzÉ DzÉò¸À¯ÁVgÀĪÀ ¥ÀæPÀgÀt ¸ÀASÉå. O.S.6163/1994 ¢£ÁAPÀ. 31-3-1994 ºÁUÀÆ ¢£ÁAPÀ. 31-3-1998gÀ £ÁåAiÀiÁ®AiÀÄzÀ DzÉñÀªÀ£ÀÄß ªÀeÁUÉƽ¹, F ¥ÀæPÀgÀtªÀ£ÀÄß ºÉƸÀzÁV ªÀÄÄAzÀĪÀgɸÀ®Ä DzÉò¹gÀĪÀÅzÁV w½¹gÀÄvÁÛgÉ. ¹«¯ï £ÁåAiÀiÁ®AiÀÄzÀ ¥ÀæPÀgÀt ¸ÀASÉå. O.S.6163/1994gÀ ºÁ° ªÀ¸ÀÄÛ¹Üw §UÉÎ «ªÀgÀuÉ ¤ÃqÀ®Ä ¥Áæ¢üPÁgÀzÀ PÁ£ÀÆ£ÀÄ C¢üPÁjUÀ¼À£ÀÄß PÉÆÃgÀ¯ÁV, ¢£ÁAPÀ. 4-5-2010 gÀAzÀÄ PÁ£ÀÆ£ÀÄ C¢üPÁjUÀ¼ÀÄ F PɼÀPÀAqÀAvÉ ªÀgÀ¢ ¤ÃrgÀĪÀÅzÁV w½¹gÀÄvÁÛgÉ:-

MFA 5835/05 was disposed on 03-08-2005 allowing the appeal in part, and impugned order in IA III in Misc. 478 was set aside the suit O.S.6163/94 was restored. There is an order to be effected that in the meanwhile authority shall not demolish the construction if any in the suit schedule property nor shall interfere with the possession of the respondents pending disposal of the suit. The suit is pending.

34. F d«ÄãÀ£ÀÄß ¸ÀPÁðgÀzÀ DzÉñÀ ¸ÀASÉå. £ÀCE 576 ¨ÉA¨sÀƸÁé 98, ¢£ÁAPÀ. 8-10- 1999gÀAzÀÄ ¸ÀªÀÄƺÀ ªÀ¸Àw AiÉÆÃd£ÉAiÀÄr C©üªÀȢݥÀqÀ¸À®Ä DzÉò¸À¯ÁVzÀÄÝ, F DzÉñÀªÀ£ÀÄß wgÀ¸ÀÌj¹ CfðzÁgÀgÁzÀ ²æà C«ÄÃgï eÁ£ï gÀªÀjUÉ ¢£ÁAPÀ. 12-7-2001gÀAzÀÄ »A§gÀºÀ ¤ÃqÀ¯ÁUÀzÀÄÝ, F §UÉÎ ¢£ÁAPÀ. 23-12-2005gÀ°è ¸ÀPÁðgÀPÉÌ ¥ÀvÀæ §gÉAiÀįÁVgÀÄvÀÛzÉ JAzÀÄ w½¸ÀÄvÁÛ, ªÉÄð£À ªÁ¸ÀÛªÁA±ÀUÀ¼À£ÀÄß ¸ÀPÁðgÀzÀ CªÀUÁºÀ£ÉUÉ vÀA¢gÀÄvÁÛgÉ.

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27. In the light of the notings at paras 33 to 37, the

petitioner could not have ordered for de-notification of the

subject lands. The order at para 39 on the face of it is

indefensible. There is nothing in para 39 to suggest that the

petitioner had ordered for de-notification based on the notings

put up by the officials in exercise of the power under section 48

of the Land Acquisition Act on satisfaction that the land has not

vested with the Government as vehemently contended by the

learned Senior Counsel for the petitioner. The question as to

whether the said order was passed by the petitioner by abuse of

power or in furtherance of the common object of the conspiracy

need to be ascertained only after a thorough investigation. Since

the allegations made in the complaint and the documents

produced in support thereof prima-facie disclose the ingredients

of the alleged offences under P.C. Act as well as under IPC, the

investigation therein cannot be stalled as sought for by the

petitioner.

28. Amended Section 17A of the P.C. Act does not

preclude respondent No.1 from investigating into the alleged

offences as contended by the petitioner. The Co-ordinate Bench

of this Court in the case of T.N. Bettaswamaiah v. State of

Karnataka (W.P.No.29176/2019 (GM-RES)) dated 20.12.2019

has considered the application of Section 17A and section 19 of

P.C. Act to the pending proceedings and by following the

decisions of the Hon'ble Supreme Court, has held that section

17A is prospective in nature and therefore section 19 also is held

as prospective. I am in respectful agreement with the view taken

in the above decision. As a result, the contention urged by the

counsel for the petitioner based on Section 17A of P.C. Act also

does not help the petitioner. Even otherwise, the order of de-

notification passed by the petitioner in the circumstances

discussed above, cannot be construed as "any recommendation

made" or "decision taken" by the petitioner in discharge of his

official duty so as to attract section 17A of the P.C.Act.

For all the above reasons, the petition is liable to be

dismissed and is accordingly dismissed with cost of Rs.25,000/-

(Rupees Twenty Five Thousand only).

Sd/-

JUDGE

Bss/mn/-