The State Of Karnataka vs Sri M P Dheeraj
2022 Latest Caselaw 1266 Kant

                                 1


 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 28TH DAY OF JANUARY, 2022

                             BEFORE

     THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV

           REVIEW PETITION No.395/2021
                         IN
        WRIT PETITION No.10467/2020 (LA-RES)

BETWEEN:

1.     The State of Karnataka,
       Represented by its
       Principal Secretary,
       Revenue Department,
       Vidhana Soudha,
       Dr.Ambedkar Veedhi,
       Bengaluru - 560 001.

2.     The Deputy Commissioner.
       B.M.Road,
       Hassan District,
       Hassan - 573 201.

3.     The Special Land Acquisition Officer,
       Yettinahole Project,
       4th Cross,
       Masti Iyengar Road,
       Kuvempu Nagara,
       Hassan - 573 201.                       ... Petitioners

(By Sri R. Subramanya, Additional Advocate General a/w
    Sri G.V. Shashi Kumar, HCGP)

AND:

1.     Sri.M.P.Dheeraj,
       Aged 42 years,
                                     2


        Son of Sri Palaksha.M.B.
        Mugali Village - 573 214.
        Belagodu Hobli,
        Sakaleshpura Taluk,
        Hassan District.

2.      Visveshwaraya Jala Nigama Niyamitha,
        Yettinahole Project,
        Yettinahole Project Sub Division,
        No.9, Aluru - 573213.
        Hassan District
        Represented by
        Special Administrative Officer.           ... Respondents

(By Sri H.N. Shashidhar, Senior Advocate for
    Sri Suhas H.S., Advocate for R1;
    R2 - Served)

       This Review Petition is filed under Section 114 read with
Order XLVII Rule 1 of the Code of Civil Procedure, 1908, praying
to allow the Review Petition and consequently review the order
dated 25.01.2021 passed by this Hon'ble Court in Writ Petition
No.10467/2020 and pass such other order/s as the Hon'ble Court
deems fit in the circumstances of the case, in the interest of
justice and equity.

      This Review Petition coming on for orders this day, the
Court, made the following:

                              ORDER

This Review Petitioners have sought for review of the

order dated 25.01.2021 passed by this Court in

W.P.No.10467/2020.

2. The parties are referred to by their ranks in the

writ petition for the purpose of convenience.

3. The facts would reveal that this Court by order

dated 25.01.2021 had disposed off the petition filed seeking

for a direction to the respondents to include the name of the

petitioner in respect of the schedule property at Sl.No.36 of

the preliminary notification. The petition was disposed off

taking note of the stand as reflected in the affidavit of the

Special Land Acquisition Officer. Paragraph No.4 of the said

affidavit reproduced in the order of the writ petition reads

as follows:

"4. I state that pursuant to the grant of the said lands by Deputy Commissioner to the Petitioner, they are entitled for compensation to the extent of 2 acre 37 guntas which is acquired for the Yettinahole Drinking Water Project. To enable the Petitioner to receive compensation as per acquisition, the Land Acquisition Officer has to send proposal for issuance of corrigendum to the Preliminary Notification dated 28.02.2019 and Final Notification dated 03.09.2020 accordingly. The same has to be approved by the State Government for issuance of appropriate gazette notification. After the above said procedure the Deputy Commissioner will issue

award notice and compensation will be paid to the Petitioner in accordance with law."

4. It is to be noticed that in the preliminary

notification at Annexure-A of the writ petition at Sl.No.36,

the land that was sought to be acquired was described as

"Gramatana". Petitioner had stated in the petition filed by

him that the original beneficiary of the grant was one Smt.

Gangamma, who was the grantee of an extent of 5 acres 37

guntas which was granted as per the land grant proceedings

dated 11.07.1961. It is further submitted that the petitioner

derived rights through subsequent transactions and

accordingly possessed rights in the land that was granted.

5. In light of the stand taken by the Land

Acquisition Officer to the effect that there was no dispute in

respect of the order of grant and that preliminary

notification dated 23.02.2019 and the final notification

dated 03.09.2020 would be corrected by way of

corrigendum to the notifications to include the name of the

petitioner, this Court taking note of such affidavit and also

the undertaking of the Additional Government Advocate,

disposed off the writ petition. The observations of this court

in paragraph Nos. 5 and 6 are as follows:

"5. Learned counsel for the petitioner during the course of hearing has clarified that his claim is being restricted only to compensation as regards the acquired land and to enable such claim of said compensation he has sought rectification of the Preliminary Notification and Final Notification. In light of the same, learned counsel appearing on behalf of the respondent No.4 submits that as the execution of project would not be affected there is no grievance from their side for disposal of the petition in light of the affidavit that is filed.

6. Taking note of the stand of the learned Additional Government Advocate that they would carry out the correction within six months and the affidavit filed, petition is disposed off as requiring no further orders while recording the undertaking. It is needless to state that the time requested by the respondent - State of six months to rectify the Preliminary and

Final Notification so as to show name of the petitioner is to be strictly adhered to.

In the meanwhile, no further proceedings as regards passing of award to be made till such rectification in the notification as observed above is made.

Accordingly, the petition is disposed off."

6. The writ petition was disposed off on

25.01.2021. The present review petition came to be filed on

10.12.2021 seeking for review of the order passed.

7. Learned Additional Advocate General appearing

on behalf of the review petitioners has submitted that

during the pendency of the writ petition, on 06.10.2020 as

per the document at Annexure-R1 filed along with the

statement of objections, permanent grant in favour of the

katha holder, i.e., writ petitioner was made with respect to

the land in question, which order of grant dated 06.10.2020

was illegal and contrary to Rule 23 of the Karnataka Land

Grant Rules, 1969. It is further submitted that the said

permanent grant could not have been made and that on

02.12.2021, a show cause notice was issued to the Special

Land Acquisition Officer as to why disciplinary proceedings

are not to be initiated. It is further submitted that by order

dated 07.01.2022, the grant upon which the petitioner had

relied upon and was taken note of by this Court has been

eventually cancelled. It is submitted that the petitioner was

ineligible to claim benefit of the permanent grant made on

06.10.2020 as the same was not permissible under law and

officers have colluded with the petitioner in conferring rights

that were non-existent eventually causing prejudice to the

interests of the State.

8. It is submitted that fraud has been played and

reliance is placed on the judgment of the Apex Court in the

case of A.V.Papayya Sastry and others vs. Government

of A.P. and others - (2007) 4 SCC 221 and in particular

to the observations made in paragraph No.22 as regards

fraud avoiding all acts. Reliance is also placed on the

judgment of this court in the case of Assistant

Commissioner and Land Acquisition Officer vs.

Subashchandra - ILR 2001 KAR 3532 and attention is

drawn to the observations made at paragraph No.11(a)

relating to fraud and its consequences.

9. Sri. H. N. Shashidhar, learned Senior counsel

appearing for the respondent has sought for dismissal of the

writ petition as being abuse of process of Court. It is

submitted that the cancellation of the permanent grant on

07.01.2022 is in fact after filing of the review petition and is

a subsequent event and if at all the State seeks to rely upon

the subsequent orders, that would not be a ground for

review of the order passed, when such subsequent orders

were not in existence. Reliance is placed on the judgment of

the Apex Court in the case of State of West Bengal and

others vs. Kamal Sengupta and another - (2008) 8

SCC 612. Attention of the Court is drawn to paragraph

No.35(vii) wherein there is an observation that subsequent

event or developments cannot be taken note of for

declaring the initial order/decision as being vitiated by an

error apparent. It is also pointed out that after the initial

grant to the predecessor of the petitioner in the year 1961,

revenue entries were there in the name of the petitioner as

well as his predecessor-in-title and records were also

produced in the writ petition to demonstrate continuation of

such revenue entries. Attention of the Court is drawn to the

RTCs and other revenue records produced along with the

writ petition. It is also contended that the cancellation of

permanent grant on 07.01.2022 would not take away

rights, if any conferred on the predecessor-in-title of the

petitioner by virtue of the temporary grant in the year

1961. It is submitted that action of the State after an

inordinate delay of more than 50 years since the date of

temporary grant cannot have the effect of prejudicing the

rights of the petitioner at this point of time. It is also

contended that the allegation of fraud is a bald allegation

bereft of any particulars.

10. Heard both sides.

11. It must be noted that admittedly, the Court has

relied on the affidavit of the officer of the State wherein

statement was made in paragraph No.4 to the effect that

petitioner is entitled for compensation and that the proposal

was sent by the Land Acquisition Officer for issuance of

corrigendum to the preliminary and final notifications. The

Court also took note of the stand of the Additional

Government Advocate who submitted that correction in the

notifications would be carried out within six months as is

evident from the observations made at paragraph No.6.

12. Clearly, the initiation of proceedings by the State

by way of show cause notice to the Special Land Acquisition

Officer to show cause as to why disciplinary proceedings

cannot be initiated was only on 02.12.2021 while the order

passed by this Court was on 25.01.2021. It is submitted

that the cancellation of permanent grant was made on

07.01.2022 which again is an order passed subsequent to

filing of the review petition. All these proceedings relating to

cancellation of grant are subsequent to the order passed by

this Court. Taking note of the observations of the Apex

Court in the case of State of West Bengal and others vs.

Kamal Sengupta (supra) at paragraph No.35 it is clear

that the happening of some subsequent event or

development cannot be taken note of for declaring the

initial order passed by the Court as being vitiated by an

error apparent. If according to the State the temporary

grant of 1961 could not be regularised as per the

permanent grant as per the relevant land grant rules, then

under what circumstances permanent grant was made on

06.10.2020 is a matter for the State to explain. The

question as to whether officers of the State have played

fraud, is a matter open to the State to take action as per

law. As to when the fraud was discovered is also a question

that the State will have to address in appropriate

proceedings. The allegation of fraud is a vague allegation

bereft of particulars. In the present case, affidavit relied on

by the Court is by an officer of the State. The Government

Advocate at the relevant point of time has also made

submissions on the basis of such affidavit. Whether the

grant made on 06.10.2020 was invalid as being against law

is a matter that remains open for adjudication in light of the

order of cancellation of grant on 07.01.2022. All these

subsequent developments cannot be grounds for review of

the order passed by this Court on the material available

before the Court and put forth by the State itself pursuant

to the order of grant that was passed. Whatever the legal

right the State seeks to assert is a matter left open to the

State in accordance with law.

13. The scope of review proceedings is limited and

the Court cannot reopen the matter which strikes at the

very sanctity of finality of proceedings and must be

exercised with great circumspection.

14. The judgments relied on by the learned

Additional Advocate General would not enure to the benefit

of the State as the judgment in the case of Assistant

Commissioner and Land Acquisition Officer vs.

Subashchandra (supra) deals with a different factual

matrix in which the notification passed was as regards a

person who had no right to the land in question. The

judgment relied on by the State in the case of

A.V.Papayya Sastry (supra) would also not come to the

rescue of the State in the present case as all documents

were in possession of the State and the State had the

knowledge of temporary grant in the year 1961 and still

went ahead and has passed an order of permanent grant on

06.10.2020. Whether the State at this point of time can

turn back and plead fraud is a matter to be dealt with in an

appropriate proceedings as grant has been cancelled on

07.01.2022. The legal attack to such grant and its

culmination in cancellation are the subject matters of

separate proceedings and this Court cannot take note of

any such proceedings to grant relief in the present review

petition.

15. Accordingly, the review petition is dismissed as

being devoid of merits.

I.A.1/2021 for condonation of delay is disposed off as

not requiring any order in light of the order passed by the

Apex Court extending time for limitation. I.A.2/2021 filed

for stay does not survive for consideration and the same is

also dismissed, as not calling for any further orders.

Sd/-

JUDGE

VP