Basavaraj vs The State Of Karnataka
2021 Latest Caselaw 2921 Kant

        IN THE HIGH COURT OF KARNATAKA
                DHARWAD BENCH
       DATED THIS THE 22ND DAY OF JULY 2021
                            PRESENT
     THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
                               AND
THE HON'BLE MR.JUSTICE PRADEEP SINGH YERUR

   WRIT PETITION NO.100553/2021 (S-KAT)
C/W. WRIT PETITION NO.148128/2020 (S-KAT),
   WRIT PETITION NO.148775/2020 (S-KAT)
  & WRIT PETITION NO.100982/2021 (S-KAT)

In W.P. No.100553/2021:
Between:

1.     Shri Basavaraj
       S/o.Somarayappa Badiger,
       Age 45 years, Occ: Surveyor,
       O/o.: Tahsildar, Dhrwad District,
       Dharwad-580 001.

2.     Shri K.H. Ramesh
       S/o. K.H. Hanumantharayappa,
       Age 48 years, Occ: Surveyor,
       Taluka Office, Gubbi, Tq.: Gubbi,
       Dist.: Tumakuru.
                                           ... Petitioners
(By Shri Shivaraj S. Ballolli, Adv.)

And:

1.     The State of Karnataka,
       Department of Higher Education,
       6th Floor, M.S. Building,
       Bengaluru-560 001,
       Rep. by its Principal Secretary.

2.     The Karnataka Lokayukta,
       Multi-Storied Building,
                                :2:



       Ambedkar Veedhi, Bengaluru-560001,
       Rep. by its Registrar.
                                                  ... Respondents
(By Shri Vinayak S. Kulkarni, AGA for R1;
Shri Santosh Malagoudar, Adv. for R2)

       This writ petition is filed under Articles 226 & 227 of the
Constitution of India, praying to issue a writ of certiorari
quashing the impugned order dated 11.12.2019, passed by the
learned Karnataka Administrative Tribunal, Bengaluru in
A.Nos.2647 and 2648/2017 vide Annexure-B and consequently
allow the applications bearing Nos.2647/2017 and 2648/2017
filed by the petitioners vide Annexure-A.


In W.P. No.148128/2020:
Between:

1.     Shri Shrinivas Murthy,
       S/o. Shri Venkateshwar Rao,
       Aged about 42 years,
       Occ: Tahsildar, Gadag,
       Office of the Tahsildar, Gadag,
       Dist. Gadag.

2.     Shri Prakash Naik,
       S/o. Shri BAsanna,
       Aged about 40 years,
       Occ: Deputy Tahsildar,
       Siddapur, Karatagi Taluka,
       Dist.: Koppal.

3.     Shri Gururaj,
       S/o. Shri Channappa Noolvi,
       Aged about 40 years,
       Occ: Revenue Inspector,
       Tahsildar Office, Karatagi,
       Dist.: Koppal.
                                                    ... Petitioners
(By Shri Gangadhar J. M., Adv.)

And:

1.     The State of Karnataka,
       Rep. by its Secretary to Government,
       Revenue Department, M.S. Building,
       Bengaluru-560 001,
                                :3:



2.     The Karnataka Lokayukta,
       Rep. by its Registrar,
       Multi-Storied Building,
       Bengaluru-560001,
                                                   ... Respondents
(By Shri Vinayak S. Kulkarni, AGA for R1;
Shri Santosh Malagoudar, Adv. for R2)

       This writ petition is filed under Articles 226 & 227 of the
Constitution of India, praying to issue an appropriate writ, order
or direction in the nature of certiorari quashing the impugned
order dated 11.12.2019 in application Nos.536-538/2017 insofar
as petitioners are concerned passed by the Hon'ble Karnataka
Administrative Tribunal, Bengaluru vide Annexure-A and
consequently allow the applications bearing Nos.536-538/2017
insofar as the petitioners are concerned in the interest of justice
and equity.


In W.P. No.148775/2020:
Between:

Shri Gangappa S/o. Markandappa,
Age 37 years, OcC: Special Land
Acquisition Officer, Now at U.K. P.
Navanagar, Dist.: Bagalkot-587103.
                                                      ... Petitioner
(By Shri Gangadhar J.M., Adv. )

And:

1.     The State of Karnataka,
       Rep. by its Secretary to Government,
       Revenue Department,
       M.S. Building, Bengaluru-560001.

2.     The Karnataka Loakyukta,
       Rep. by its Deputy Registrar,
       Multistoried Buildng,
       Bengaluru-560001.
                                                   ... Respondents
(By Shri Vinayak S. Kulkarni, AGA for R1;
Shri Santosh Malagoudar, Adv. for R2)

       This writ petition is filed under Articles 226 & 227 of the
Constitution of India, praying to issue an appropriate writ, order
or direction in the nature of certiorari quashing the impugned
                                 :4:



order dated 11.12.2019 in application Nos.535-538/2017 insofar
as petitioner is concerned passed by the Hon'ble Karnataka
Administrative Tribunal, Bengaluru vide Annexure-A and
consequently allow the application bearing Nos.535-538/2017
insofar as the petitioner is concerned.


In W.P. No.100982/2021:
Between:

Shri Gangappa S/o. Shri Markandappa,
Age 40 years, Occ: Tahsildar,
Kushtgi Taluk, Dist.: Koppal.
                                                     ... petitioner
(By Shri Shivaraj S. Balloli, Adv. )

And:

1.     The State of Karnataka,
       Department of Higher Education,
       6th Floor, M.S. Building,
       Bengaluru-560 001.
       Rep. by its Prl. Secretary.

2.     The Karnataka Lokayukta,
       Multi-Storied Building,
       Ambedkar Veedhi, Bengaluru-560001,
       Rep. by its Registrar.
                                                 ... Respondents
(By Shri Vinayak S. Kulkarni, AGA for R1;
Shri Santosh Malagoudar, Adv. for R2)

      This writ petition is filed under Articles 226 & 227 of the
Constitution of India, praying to issue a writ of certiorari
quashing the impugned order dated 11.12.2019 passed by the
learned Karnataka Administrative Tribunal, Bengaluru in
A.No.3302/2017 vide Annexure-B insofar as the petitioner is
concerned.


       These Writ Petitions coming on for Preliminary Hearing,
this day, Krishna S.Dixit, J, made the following:
                                 :5:



                              ORDER

The writ petitioners, who happen to be the public

servants, are knocking at the doors of the Writ Court for

assailing the common Judgment & Order dated

11.12.2019 made by the Karnataka Administrative

Tribunal at Bengaluru, whereby their Application

Nos.536-538 of 2017 wherein a challenge was laid to the

proceedings under the Karnataka Lokayuktha Act, 1984,

have been negatived. After service of notice, the

respondent-State Government is represented by the

learned Additional Government Advocate and the

respondent-Lokayuktha is represented by its Sr. Panel

Counsel; both they vehemently oppose the writ petitions

making submission in justification of the impugned order

of the KAT.

2. Brief facts of the case:

(a) The Lokayuktha proceedings were triggered by the

complaint of one Mr. Gavisiddappa Saloni, an advocate

from Gangavathi; the allegation was that certain land

records were meddled with and phodi of lands was made

unlawfully; the said complaint was referred to the

Assistant Commissioner, Koppal, for preliminary inquiry

in terms of Section 9(3) of the Act; the Assistant

Commissioner, in turn, forwarded a copy of the complaint

to the petitioners who had filed the objections; he had

submitted his Preliminary Inquiry Report dated

25.06.2015 recommending for the investigation.

(b) The Hon'ble Upa-Lokayuktha, having investigated

into the matter, submitted to the Government Section

12(3) Report dated 28.03.2016 recommending a

Disciplinary Enquiry; accordingly, the Government vide

order dated 09.12.2016 entrusted the enquiry under Rule

14A of KCS (CCA) Rules, 1957; the Upa-Lokayuktha, vide

order dated 23.12.2016 authorised the Additional

Registrar (Inquiries-10) who issued the Charge Memo

dated 05.01.2017; therefore, the petitioner had

approached the Karnataka Administrative Tribunal

seeking quashment of the entire Lokayukta proceedings

culminating into issuance of Charge Memo; the Tribunal

having rejected their cases, petitioners are before us.

3. Having heard the learned counsel for the

parties and having perused the petition papers and also

the original file produced & taken back by the Panel

Counsel for the Lokayuktha, we are inclined to grant

indulgence in the matter as under & for the following

reasons:

(a) The only question that was canvassed before this

Court is as to who should forward a copy of the

complaint to the delinquent officials; the learned

Advocates for the petitioners argue that it is only the

Lokayuktha/Upa-Lokayuktha, after the Preliminary

Inquiry, should do this; in support of this, he banks upon

a decision of a learned Single Judge (K.A.Swami, J) of

great repute in N.Gundappa Vs. State of Karnataka, ILR

1990 KAR 223 which is affirmed in appeal in State of

Karnataka Vs. N.Gundappa ILR 1990 KAR 4188; per

contra, learned panel counsel for the Lokayuktha joined

by the learned AGA vehemently contends that, if the

officer who is entrusted with the Preliminary Inquiry

forwards a copy of the complaint to the delinquents, the

requirement of law is satisfied;

(b) Both the sides heavily bank upon their own

interpretation of Clauses (a) & (b) of sub-section (3) of

Section 9 of the Act which read as under:

"9. Provisions relating to complaints and investigations.- (1)xxxxx

(3) Where the Lokayukta or an Upa- lokayukta proposes, after making such preliminary inquiry as he deemed fit, to conduct any investigation under this Act, he,-

(a) shall forward a copy of the complaint [and in the case of an investigation initiated suo moto by him, the opinion recorded by him to initiate the investigation under sub-section (1) or (2), as the case may be, of Section 7] to the public servant and the competent authority concerned;

(b) shall afford to such public servant an opportunity to offer his comments on such complaint [or opinion recorded under sub-section (1) and (2) of Section 7 as the case may be];

In the aforesaid decisions, the above provisions have

been held to be mandatory and therefore, their violation,

if any would arguably invalidate the Lokayuktha

proceedings, is broadly true; the requirement of serving

a copy of the complaint alone was the subject matter of

the said decisions; however, the precise question as to

who should provide a copy of the complaint to the

delinquent and at what stage, had not fallen for

consideration; therefore, the ratio that the subject

provisions are mandatory would throw but only a little

light on the "Road to Justice".

(c) Even from the days of Lord Macaulay, it was felt

necessary that the public servants in the discharge of

their official duties should be protected from vexatious

proceedings, lest the public interest should suffer,

otherwise; similar protective provisions are found in

Sections 196 & 197 of Criminal Procedure Code, (old &

new), and in Section 19 of the Prevention of Corruption

Act, (old & new); such provisions are there in several

State Legislations too like the Police Acts, etc.; the

Lokayuktha proceedings have a tinge of quasi-criminal

nature; a learned Single Judge of yester-years in

Prof. S.N.Hegde Vs. The Lokayukta, 2004(3) Kar.L.J.

505 has rightly held that the reputation of a man being

precious to his soul an adverse report submitted under

Section 12 of the Act may put the same at stake;

keeping this in view, the subject provisions need to be

construed, the dignity of offices/designations of the

concerned delinquents, also cannot be lost sight of.

(d) In Prof. S.N.Hegde (supra), the principles of natural

justice have been read inter alia into the provisions of

Section 9 and rightly so; as already mentioned above,

the text of Section 9(3)(a) & (b) have to be construed

with their professed object that the scrupulous public

servants need protection even when they err in the

discharge of their official duties; that is the reason why

the legislature, in its wisdom, provides for holding of a

Preliminary Inquiry which may be followed by an

'Investigation' in the event a case worthy of Investigation

is made out; when the Lokayuktha/Upa-Lokayuktha

direct a Preliminary Inquiry, the delinquents are not in

the picture; the reasons for this are not far to seek;

whether there is an Investigation-worthy case or not is to

be found out on the basis of prima facie material

available on record and not on the basis of the defence

that may be set up later; that being the position, there is

an error on the part of the Assistant Commissioner, in

forwarding a copy of the complaint to and calling for the

response of the delinquents; an argument to the contrary

cannot be countenanced save by straining the language

of this provision; this aspect has been lost sight of by the

learned Upa-Lokayuktha.

(e) The text & context of Section 9 make it clear that

the Lokayukta/Upa-Lokayuktha shall hold or cause a

Preliminary Inquiry and thereafter, decide as to

desirability of the investigation into the matter; when he

forms an opinion on the basis of a Preliminary Inquiry

that there is a case for investigation, it is he who shall

forward a copy of the complaint to the public servant and

also to the competent authority concerned; the public

servant shall then have an opportunity to offer his

comments on the complaint; this is the legislative

scheme and an otherwise interpretation would bruise it

to the prejudice of delinquent public servant, to say the

least; as already discussed above, the provision imposes

a duty on the Lokayuktha/Upa-Lokayuktha to apply his

mind to what emerges from the Preliminary Inquiry and

only then to take a decision; this duty is not discharged

when the Officer of Preliminary Inquiry forwards a copy

of complaint to the public servant; if the legislature

intended that a copy of the complaint should be

forwarded by the Officer of Preliminary Inquiry and that

there is no such requirement qua the Lokayukta, the text

of the provision would have been different;

In the above circumstances, these writ petitions are

allowed in part; the impugned order of the KAT is set at

naught; a Writ of Certiorari issues quashing the

Lokayukta proceedings and all other consequential

proceedings as well; the matter is remitted for de novo

consideration from the stage of processing the subject

complaint, in the manner discussed above; all

contentions of the parties are kept open.

Costs made easy.

Sd/-

JUDGE

SD/-

JUDGE Vnp*