Allowed

Shri.Mahadev v. the Karnataka Lokayukta

Karnataka HC5 Apr 2019WP/106055/2016

Case brief

AI extract

What is this about?

A Division Bench allowed a writ petition seeking to quash a departmental inquiry initiated by the Karnataka Lokayukta against a Deputy Tahasildar. The Court held that since the petitioner's orders were subject to statutory appeal and revision, the investigation was barred under Section 8(1)(b) of the Karnataka Lokayukta Act.

What did the court decide?

The writ petition is allowed; the departmental inquiry proceedings, including the initiation order and sanction, are hereby quashed.

Shri.Mahadev Vs the Karnataka Lokayukta — Service and Employment | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 05^{T H} DAY OF APRIL 2019

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PRESENT

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THE HON’BLE MR. JUSTICE G.NARENDAR

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AND

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THE HON’BLE MR. JUSTICE BELLUNKE A.S.

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WRIT PETITION NO.106055/2016 (GM-KLA)

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BETWEEN :

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SHRI MAHADEV MAYAGOUDA PATIL, AGED ABOUT 57 YEARS, OCC: DY TAHASILDAR (SHERISTEDAR), NAD KACHERI, YAMAKANAMARADI, R/AT CHIKODI – 591 201, DT. BELAGAVI.

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… PETITIONER

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(BY SRI ASHOK R KALYANSHETTY, ADVOCATE)

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AND :

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THE KARNATAKA LOKAYUKTA BY IT’S REGISTRAR, M.S.BUILDING, BENGALURU-560 001.

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THE STATE OF KARNATAKA BY IT’S COMMISSIONER & UNDER SECRETARY, REVENUE DEPARTMENT, M.S.BUILDING, BENGALURU-560 001.

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THE ADDITIONAL REGISTRAR OF ENQUIRIES-4, KARNATAKA LOKAYUKTA, M.S.BUILDING, BENGALURU-560 001.

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SMT.DRAKSHAYANI W/O KADAPPA HAVALDAR, AGE : MAJOR, OCC: AGRICULTURE, R/O JARAKIHOLI, TQ: HUKKERI-591 309, DIST: BELAGAVI.

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SHRI PUNDALIK BALAPPA HANAMANNAVAR, AGE : MAJOR, OCC: AGRICULTURE, R/O SHIVAPUR, TQ: GOKAK-591 307, DISTRICT : BELAGAVI.

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… RESPONDENTS

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(BY SRI M.B.HIREMATH, ADVOCATE FOR R.1 & 3.) (BY SRI RAVI V.HOSMANI, AGA FOR R2) (BY SMT.S.V.DESHPANDE, ADVOCATE FOR R4.) (NOTICE TO RESPONDENT NO.5 : SERVED.)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE DEPARTMENTAL INQUIRY BEARING NO.UPLOK-1/DE/114/2016/ARE-4 BEFORE THE 3^RD RESPONDENT IN THE ESTABLISHMENT OF RESPONDENT NO.1, COMMENCING WITH THE ORDER BEARING NO.COMPT/UPLOK/BGM-7045/2014/PP DATED 10.02.2016 AT ANNEXURE-F PASSED BY THE HON’BLE UPALOKAYUKTA, KARNATAKA LOKAYUKTA, THE 1^{S T} RESPONDENT FOR DE AGAINST THE PETITIONER ; ORDER OF SANCTION, BEARING NO.KAM.E92 BMM 2016, BANGALORE DATED 12.04.2016 AT ANNEXURE-G PASSED BY RESPONDENT NO.2, FOR DE AGAINST THE PETITIONER : ORDER NO.UPLOK-1/DE/114/2016 AT ANNEXURE-H PASSED BY UPALOKAYUKTA, KARNATAKA LOKAYUKTA, NOMINATING RESPONDENT NO.3 AS ENQUIRY OFFICER TO HOLD DE AGAINST THE PETITIONER: ARTICLES OF CHARGE ETC., DATED 30.05.2016 AT ANNEXURE-J FRAMED BY 3^RD RESPONDENT AGAINST HIM IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, BELLUNKE J., MADE THE FOLLOWING:

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ORDER

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This writ petition is filed by the petitioner seeking to quash the Departmental inquiry bearing No.UPLOK-1/DE/114/2016/ARE-4 before the 3^rd respondent in the establishment of respondent

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No.1, commencing with the order bearing No.COMPT/UPLOK/BGM-7045/2014/PP dated 10.02.2016 at Annexure-F passed by the Hon’ble Upalokayukta, Karnataka Lokayukta, the 1^st respondent for DE against the petitioner ; order of sanction, bearing No.Kam.E92 BMM 2016, Bangalore dated 12.04.2016 at Annexure-G passed by respondent No.2, for DE against him : order No.UPLOK-1/DE/114/2016 at Annexure-H passed by Upalokayukta, Karnataka Lokayukta, nominating respondent No.3 as Enquiry Officer to hold DE against the petitioner: Articles of charge etc., dated 30.05.2016 at Annexure-J framed by 3^rd respondent against him.

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Briefly stated the facts are that the petitioner herein was working as Deputy Tahasildar at Nad Kacheri, Yamakanamaradi, Hukkeri Taluk. He is the jurisdictional Sheristedar under Section 129(4) of the Karnataka Land Revenue Act, 1964 (hereinafter referred as the “KLR Act” for short) read with Rule 43 of the

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Karnataka Land Revenue Rules, 1966 (hereinafter referred as the “KLR Rules”) adjudicating the mutation dispute between respondent No.4 and respondent No.5.

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Against such order the aggrieved respondent No.5 preferred RTS Appeal and obtained stay at Annexure-C and then preferred complaint against the petitioner and others to the Lokayukta - respondent No.1, saying that his name should be entered by canceling the mutation entry made in favour of respondent No.4. Accordingly, the Lokayukta - respondent No.1 issued notice to the petitioner herein and the same came to be received by him along with complaint filed by respondent No.5 as per Annexure-E. Petitioner gave explanation to the said notice on 04.05.2015 as per Annexure-E1. But the Upa-Lokayukta recommended to the respondent No.2 for DE against the petitioner holding that his explanation is not satisfactory. The 2^nd respondent accorded sanction for DE and

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the 3^rd respondent being the officer served Articles of Charges etc., on the petitioner in Enquiry 114/2016. The inquiry initiated by the 1^st respondent in Enquiry No.114/2016, including orders of Upa-Lokayukta, sanction accorded by the State Government and issuing of Articles of charge are perverse, illegal and contrary to the Karnataka Lokayukta Act, 1984 and the Karnataka Lokayukta Rules, 1985 as there cannot be an investigation against appealable orders under Section 8(1)(b) of the Karnataka Lokayukta Act 1984 and especially when there is no grievances or allegation against the petitioner nor evident from complaint before Lokayukta at Annexure-D.

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The above said impugned orders have been challenged by the petitioner on the following grounds.

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The inquiry No.114/2016 initiated by the respondent No.1 – Lokayukta is illegal and abuse of process of law. The order passed by the petitioner is in the capacity of the Presiding officer

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of a Revenue Court in exercise of his powers under Section 129(4) of the KLR Act read with Rule 43 of KLR Rules, against which, Appeal lies and Appeal No.RTS : AP 72/2014-15 has been already filed, here a instant action is beyond the purview of the Lokayukta Act.

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Section 8(1) (b) of the Lokayukta Act bars the Lokayukta Authority from conducting any investigation, if the complainant has got any remedy by way of appeal. Therefore, the complainant could have been directed to file a revenue appeal under Section 136 of the KLR Act read with Rule 43(3) of KLR Rules against the order passed by the petitioner. The petitioner herein comes within the ambit of definition of ‘judge’ as defined under Section 19 of IPC.

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Section 9(5) of the Lokayukta Act also provides for discretion to refuse to investigate any complaint which is frivolous, vexatious or was not made in good faith. The powers exercised by the petitioner were in exercise of the quasi-

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judicial function as defined under section 2(1) of the Karnataka Lokayukta Act 1984. When the RTC proceedings were going on the complainant did not object the verdict goes against him, he files such complaint. There is no specific allegation of corruption, favoritism or nepotism against the petitioner. A mere say that the explanation of the petitioner is not satisfactory would not amount to substantiation of the allegations against the petitioner. There is no prima facie case against the petitioner. The Lokayukta authority cannot sit over the judgment of this petitioner in RTS proceedings. The rejoinder of 5^th respondent is not a complaint as nothing to do with the order passed by the petitioner. Respondent No.1 could not have taken arbitrary decision. The 2^nd respondent was not obliged to accord sanction and recommendation of DE. The petitioner has passed the judgment to the best of his knowledge by discarding both the Wills by assigning reasons. The legality of the revenue entries cannot be

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enquired into by Lokayukta, moreover, the mutation entry is neither a document of title nor a declaration of title. It does not amount adjudication of Civil and titular rights, as per Section 132 of the K.L.R. Act, it is always subject to a decree by the competent Court, which the parties may obtain. Petitioner was competent authority to preside over the revenue court. Therefore, if the impugned order is not set aside, it will affect the career of the petitioner. Hence, prayed to allow the writ petition.

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The learned counsel for the petitioner relying on the orders passed in W.P.Nos.2507880/2016 (GM-KLA) by this Hon’ble Court submitted that the order of the Upalokayukta is unsustainable in the eye of law. Repeating the writ petition grounds, the learned counsel submitted that the petitioner has passed order while sitting as a revenue Court. He was competent to pass such orders. The orders are appealable under the relevant provision section

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136 of the KLR Act. Therefore, the learned counsel prayed to allow the writ petition.

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The learned counsel for respondent Nos.1 and 3 have filed their objections contending that the petition is not maintainable either in law or on facts and also in circumstances of the case. The conduct of the petitioner disentitles him to seek any relief in this case. After due enquiry, the learned Upalokayukta has passed an order recommending for DE. Consequently a detailed charge has been framed against him. Therefore, the petitioner has to face the enquiry. The petitioner was not competent to decide the rights of the parties, when two separate Wills were presented by claiming rights on the respective Wills by the parties concerned. Therefore, he should not have decided the case in favour of one party.

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Section 8(1)(b) of the of the Karnataka Lokayukta Act has no application to the case in hand. The report is filed under section 12(1) of

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the Karnataka Lokayukta Act and it is not under challenge by him. The petitioner has challenged the report made under section 12(3) of the Lokayukta Act. Therefore section 8 (1) (b) of the Karnataka Lokayukta Act has no application to the present set of facts. The allegation is towards committing misconduct and dereliction of the duty that was found to be proved during the course of investigation. Therefore, the petitioner cannot invoke section 9(5) (c) of the Karnataka Lokayukta Act.

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The respondent Nos.1 and 3 have relied on certain authorities in support of their statement of objections.

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1) (2018) SCC Online 1015) (Fayaz Ahmed Shaikh Vs. State of Karnataka & others.

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2) 2018(2) KCCR 1457 (T.N.Ravi Prakash Vs. State of Karnataka)

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3) W.P.Nos.25078-80/2016 (GM-KLA) (Sri Subhindra A Gumaste and others Vs. The State of Karnataka & others)

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4) W.P.Nos.104460/2018 C/w 104461/2018 and 104462/2018 (Vijay Kumar G Sulakhe Vs. State of Karnataka.

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5) (2006) 12 SCC 28 (Union of India and Another Vs. Kunishetty Satyanarayana.

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6) JT 1995 (8) SC 331 (Executive Engineer, Bihar State Housing Board Vs. Ramdesh Kumar singh and others)

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7) AIR 2004 SC 1467 (Special Director and another Vs. Mohd. Ghulam Ghouse and another)

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8) 2001 (10) SCC 639 (State of U.P Vs. Brahm Datt Sharma and another)

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The order passed by the Upa-lokayukta is based on relevant documents. The finding is recorded on independent examination of the documents sent to it. Therefore, the enquiry was entrusted. It is wrong to contend that in effecting the mutation entry in the name of a person is quasi judicial function. The petitioner in the present case has not at all considered the rival contentions raised by the complainant. Therefore

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the allegation regarding same entails this institution to investigate the matter.

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The promotion aspect of the petitioner is nothing to do with respondent Nos.1 and 3. The entrustment order has not at all caused any injustice or prejudice to the petitioner. It is only order for enquiry. Sufficient opportunity is given to the petitioner to defend himself. Therefore there is no cause of action to question the same. On all these grounds, the respondents have prayed to dismiss the writ petition.

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We have heard the learned counsel for the petitioner and as well as the learned counsel for the respondents and perused the documents available on record.

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On the basis of the pleadings of both the parties, the points that would arise for consideration of this Court are as follows:

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1. Whether the complainant had an efficacious remedy by way of an appeal

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and therefore the order of respondent No.1 authority is hit by section 8(1)(b) of the Karnataka Lokayukta Act?

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2. Whether the first respondent authority has failed to exercise the discretion vested in it under Section 9(5) of the Karnataka Lokayukta Act?

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3. What order?

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Before adverting to the merits of the case it is necessary to refer the order passed by the petitioner in his official capacity as a Deputy Tahasildar, Nad Kacheri, Yamakanamaradi, Hukkeri Taluk dated 11.07.2014. On perusal of the said order there were rival claimants claiming to make entry in the revenue records in respect of the property.

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The applicant in the said case was claiming right over the property on the basis of a Will said to have been executed by the deceased owner of the property on 01.02.1985. Respondent No.1(a) has also contended that the deceased Bayavva had executed a Will on 14.05.1982 on a

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Rs.10/- stamp paper in the name of his father. Therefore, he has objected to the claim of the applicant namely Drakshayini. After hearing, the Deputy Tahasildar passed order with following reasons:

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G¨sÀAiÀÄ PÀQÌUÁgÀgÀ ªÁzÀ «ªÁzÀUÀ¼À£ÀÄß D°¹vÀÄ, ºÁUÀÆ ¥ÀæPÀgÀtzÀ°è ºÁdgÀ ¥Àr¹gÀÄªÀ zÁR¯ÉUÀ¼À£ÀÄß ¥Àj²Ã°¹vÀÄ. G¨sÀAiÀÄvÀgÀgÀÄ ªÀÄÈvÀÄå ¥ÀvÀæUÀ¼À£ÀÄß ºÉÆA¢gÀÄªÀÅzÁV, zÁR¯É ºÁdgÀ ªÀiÁrgÀÄvÁÛgÉ. »ÃUÁV AiÀiÁªÀ ªÀÄÈvÀÄå ¥ÀvÀæ ¤dªÁzÀÄzÀÄ CAvÁ RavÀªÁUÀÄwÛ®è. G¨sÀAiÀÄvÀgÀgÀÄ ªÀÄÈvÀ ¨sÀÆªÀiÁ°ÃPÀ¼À 1£ÉÃ ªÀUÀðzÀ ªÁgÀ¸ÀÄzÁgÀgÀÄ DVgÀÄªÀÅ¢®è. ¥ÀæPÀgÀtzÀ «ZÁgÀuÉ PÁ®PÉÌ CfðzÁgÀgÀÄ zÁªÁ d«ÄÃ¤£À PÀ¨ÁÓ ªÀ»ªÁlzÀ°è EgÀÄªÀÅzÁV ºÁUÀÆ ¸ÀzÀjÃAiÀÄªÀgÀÄ CzÀgÀ°è ªÀÄ£É PÀnÖPÉÆAqÀÄ ªÁ¸ÀªÁVgÀÄªÀÅzÁV w½zÀÄ §gÀÄvÀÛzÉ. DzÀÝjAzÀ CfðzÁgÀgÀ ºÉ¸ÀgÀ£ÀÄß zÁªÁ d«ÄÃ£ÀPÉÌ zÁR°¸ÀÄªÀÅzÀÄ ¸ÀÆPÀÛ CAvÁ PÀAqÀÄ §gÀÄvÀÛzÉ. JzÀÄgÀÄzÁgÀgÀÄ ¸ÀPÀëªÀÄ ¢ªÁtÂ £ÁåAiÀiÁ®AiÀÄ¢AzÀ ¥ÀjºÁgÀ PÀAqÀÄPÉÆ¼Àî§ºÀÄzÁVzÉ. PÁgÀt F PÉ¼ÀV£ÀAvÉ DzÉÃ±À ºÉÆgÀr¹vÀÄ.

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DzÉÃ±À

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¥Àæ¸ÁÛªÀ£ÉAiÀÄ°è «ªÀj¹gÀÄªÀ PÁgÀtUÀ½UÁV JzÀÄgÀÄzÁgÀgÀ vÀPÀgÁgÀÄUÀ¼À£ÀÄß vÀ½î ºÁQvÀÄ ºÁUÀÆ ªÀAlªÀÄÆj UÁæªÀÄzÀ ºÀPÀÄÌ zÁR¯É ¸ÀA.JZï.06/2013-14 EzÀ£ÀÄß ªÀÄAdÆgÀ ªÀiÁrvÀÄ. JzÀÄgÀÄzÁgÀgÀÄ vÀªÀÄä ºÀPÀÌ£ÀÄß ¸ÀPÀëªÀÄ ªÀiÁ£Àå ¢ªÁtÂ £ÁåAiÀiÁ®AiÀÄ¢AzÀ ¸Á©ÃvÀÄ¥Àr¹PÉÆ¼Àî§ºÀÄzÁVzÉ.

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Against the said order admittedly a revenue appeal has been filed before the Assistant Commissioner, Belagavi by respondent No.5. A stay order has been issued by the Assistant Commissioner in respect of the order passed by the petitioner. Annexure-D is the copy of the complaint filed by respondent No.5. In the said complaint, in column No.6 he disputes the Will alleged to have been executed by the deceased and relied on by respondent No.4 of the writ petition. In column No.10 he has prayed to cancel the mutation entry and relying on the Will executed by his aunt in favour of his father on 14.05.1982 and to enter his name in the revenue records. Further he has prayed to take action against the officials for having troubled him.

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On perusal of the above said admitted facts on record, we find that the complaint was an outcome of adverse orders passed by the petitioner in his official capacity. Prima facie that cannot be categorized or classified as any

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maladministration or misconduct on the part of the government servant in the discharge of his official duties.

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The revenue records are made in accordance with the provision of section 129(4) of the KLR Act. The same will be certified by prescribed officer under Section 129(6) of the KLR Act. The aggrieved person is provided with an efficacious relief of an appeal under section 136(2) of the KLR Act. The person aggrieved by the entries in the revenue records prepared and maintained as required under Section 127 of KLR Act. Regarding registration of mutation under Section 129 of KLR Act one can also prefer a revision petition before the Deputy Commissioner. Even the Deputy Commissioner can suo-muto revise such order under Sections 127 and 129 of the KLR Act, after hearing the parties. Section 8(1) of the Karnataka Lokayukta Act reads as under:

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“8. Matters not subject to investigation-. (1) Except as hereinafter provided, the Lokayukta or an Upalokayukta shall not conduct any investigation under this Act in the case of a complaint involving a grievance in respect of any action.-

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(a) if such action relates to any matter specified in the Second Schedule; or

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(b) if the complainant has or had, any remedy by way of appeal, revision, review or other proceedings before any Tribunal, Court, Officer or other authority and has not availed of the same.”

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On perusal of the said provision it is clear that if the complaint has or had any remedy by way of appeal, revision, review or any other proceedings before any Tribunal or authority and if he had not availed the same, it is not open for the Lokayukta or Upa-lokayukta to conduct investigation under the Act in such cases. In this case the parties have already preferred an appeal and had obtained a stay order as per Annexure-C.

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The position of law is well settled by a Coordinate Bench of this Court in W.P.Nos.2507880/2016 rendered in the case of Sri Subhindra A Gumaste & others and The State of Karnataka and others.

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We have also gone through the authorities relied on by the respondents in statement of objections, we find that the said authorities are not applicable to case in hand.

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Moreover officer in question was not debarred from holding any enquiry with regard to effecting mutation entries. Ultimately the same is required to be certified by the jurisdictional Tahasildar. Therefore, it cannot be said that the act of the petitioner attracted any disciplinary action as held in the impugned order passed by respondent No.1.

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Therefore in view of the aforesaid admitted facts that emerge from the records and the law laid down by a Co-ordinate Bench of this

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Court, we find that the impugned order passed by the learned Lokayukta is not sustainable in law and facts on record. Therefore, it is liable to be quashed. Accordingly point Nos.1 and 2 are answered in the affirmative. Hence this court proceed to pass the following :

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ORDER

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The Writ petition is allowed.

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The Departmental inquiry bearing No.UPLOK-1/DE/114/2016/ARE-4 before the 3^rd respondent in the establishment of respondent No.1, commencing with the order bearing No.COMPT/UPLOK/BGM7045/2014/PP dated 10.02.2016 at Annexure-F passed by the Hon’ble Upalokayukta, Karnataka Lokayukta, the 1^st respondent for DE against the petitioner ; order of sanction, bearing No.Kam.E92 BMM 2016, Bangalore dated 12.04.2016 at Annexure-G passed by

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respondent No.2, for DE against him : order No.UPLOK-1/DE/114/2016 at Annexure-H passed by Upalokayukta, Karnataka Lokayukta, nominating respondent No.3 as Enquiry Officer to hold DE against the petitioner: Articles of charge etc., dated 30.05.2016 at Annexure-J framed by 3^rd respondent against him are hereby quashed.

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Sd/JUDGE

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Sd/JUDGE

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Shri.Mahadev v. the Karnataka Lokayukta

Case brief

What is this about?

What did the court decide?

Shri.Mahadev v. the Karnataka Lokayukta

Case brief

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