Allowed

T S Vijay Kumar v. the Commissioner

Karnataka HC15 Jan 2021WP/2743/2017

Case brief

AI extract

What is this about?

The petitioner, a licensed surveyor acquitted of corruption charges, challenged an endorsement refusing license renewal due to a pending government appeal. The court quashed the endorsement, holding a pending appeal does not justify refusal, and directed the department to consider the petitioner's representations and verify procedural compliance before deciding.

What did the court decide?

Annexure-A endorsement quashed. Mandamus issued for respondents to consider representations dated 07.04.2015 and 28.07.2016 and pass suitable orders within three months of fresh representation.

T S Vijay Kumar Vs the Commissioner — Service and Employment | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF JANUARY, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR

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WRIT PETITION NO.2743 OF 2017 (GM-RES)

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BETWEEN:

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T.S. VIJAYAKUMAR S/O SHIVANNA AGED ABOUT 36 YEARS LICENSED LAND SURVEYOR DODDABALLAPURA TALUK OFFICE BENGALURU RURAL DISTRICT – 561 203

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R/AT THAVADEHALLI VILLAGE ALILUGATTA POST, HAGALAVADI HOBLI GUBBI TALUK, TUMKURU – 572 216

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... PETITIONER

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(BY SRI KALYAN R, ADVOCATE)

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AND:

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THE COMMISSIONER LAND SURVEY AND RECORDS DEPARTMENT OF REVENUE K.R. CIRCLE, BENGALURU – 01

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THE ASSISTANT DIRECTOR (ADMIN) C/O OF THE COMMISSIONER LAND SURVEY AND RECORDS K.R CIRCLE,BENGALURU – 01

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THE ASSISTANT DIRECTOR LAND SURVEY, PROJECT MONITORING UNIT, K.R CIRCLE, BENGALURU – 01.

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... RESPONDENTS (BY SRI ACHAPPA P.B, AGA FOR R1 TO R3)

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***

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 & 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ENDROSEMENT DATED 26.08.2016 PASSED BY THE R-3 VIDE ANNEXURE-A TO THE W.P.AND ISSUE A WRIT OF MANDAMUS TO THE R1 AND TO DIRECT THEM TO RENEW THE LICENSE OF THE PETITIONER BY CONSIDERING THE REPRESENTATIONS OF THE PETITIONER DT. 07.04.2015 AND 28.07.1016 AS PER ANN. E & F TO THE WRIT PETITION, ETC.,

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THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Petitioner has sought to quash the endorsement dated 26.08.2016 issued by the respondent No.3 as per Annexure-A to the writ petition. He has also sought for a direction to respondent No.1 to renew his license by considering his representations dated 07.04.2015 and 28.07.2016 as per Annexure-E and F to the writ petition.

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It is the case of the petitioner that he is a Licensed Surveyor and his license was issued by the Department of Land Survey and Records commencing from 01.07.2002 bearing license No. 310/2014/1031.

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The said license was renewed from time to time. On 29.11.2008 a complaint came to be filed by one Sonnegowda to the Lokayuktha Police. A trap was conducted in connection with preparation of survey sketch. Based on which, petitioner was arrested and FIR came to be registered for the offences punishable under Sections 7, 13(a) (3)(d) r/w Section 3(2) of Prevention of Corruption Act, 1988. After investigation charge sheet came to be filed by the Lokayuktha Police against the petitioner. The license of the petitioner was not renewed on the ground that the case is pending against the petitioner.

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After the trial, petitioner came to be acquitted for the aforesaid offences in SC No.583/2010. Thereafter, petitioner approached respondent and submitted a copy of the Judgment of the Sessions Court and sought to restore the license by renewing the same in accordance with law. Petitioner submitted two representations as per Annexure-E dated 07.04.2015 and Annexure-F dated 28.07.2016 for renewal of his license. Respondent No.3 issued an endorsement to the

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effect that the Government has filed an appeal before the High Court of Karnataka and on that ground refused to renew the license of the petitioner. It is submitted by both the counsel that the said appeal filed by the Government is still pending adjudication.

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It is further pleaded that Petitioner was leading his livelihood by working as licensed Surveyor. Now, in view of the cancellation of the license and nonrenewal of the same by the respondent caused great hardship to the petitioner and his family members. Therefore, petitioner has approached this Court seeking to quash the endorsement dated 26.08.2016 as per Annexure-A and to direct the respondent No.1 to consider his representations as per Annexures-E & F.

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Learned Addl. Government Advocate filed statement of objections today after serving a copy of the same on the learned counsel for petitioner.

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Heard Learned Counsel for Petitioner and learned Additional Government Advocate.

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7. It is the contention of the learned counsel

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for petitioner that endorsement at Annexure-A issued by the respondent No.3 is arbitrary and illegal. He contends that there is no provision where merely because an appeal is pending, license can not be renewed. Further, it is contended that in view of the representations given by the learned counsel for petitioner as per Annexures-E and F, the respondents are duty bound to consider the same and in view of petitioner being acquitted in criminal case, the renewal deserves to be granted. Non consideration of the representations has caused great hardship to the petitioner.

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Per contra, learned AGA contends that if the license is to be renewed, the petitioner ought to have filed an application within one month from the date of expiry of license as per Section 46-C of the Karnataka Land Revenue Rules, 1966. He further contends that the renewal of license is not automatic or mechanical process and there is requirement of an application being filed by the petitioner one month from the date of expiry. He further contends that every renewal of

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license is subject to satisfaction of the service rendered by the licensed Surveyor, which is assessed by the concerned Deputy Director of Land Records of the District or through continuous evaluation mechanism prescribed by the Department.

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Learned AGA further contends that as per Rule 46-K, license issued under Rule 46-A shall be kept under suspension if the licensed Surveyor contravenes any of the provisions of the Act or rules, circulars and directions issued by the Government / Commissioner / Director, Survey Settlement and Land Records after giving the show cause notice and/or opportunity of being heard.

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Learned AGA further contends that if the Licensed Surveyor contravenes any of the Act, Rules, Circulars, directions issued by the Government, Commissioner, SSLR or abstains from using the license continuously for a period of 4 months demands or accepts illegal gratification, is under investigation by any Government agency for misconduct, his license

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shall be cancelled. In the instant case, it is averred that the petitioner has got his license renewed as per as per provisions of Section 46-C since 2011 and thereafter petitioner has not appeared before the authority to show any satisfactory explanation as to his absence from April 2010 to 15.12.2012. He contends that absence of the petitioner to renew his license contravenes the provisions of Rule 46-K and admittedly in the present case there was an investigation by the Lokayuktha for misconduct, which entails cancellation of license.

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Learned AGA further contends that the outcome of the investigation is not a condition precedent for the cancellation of a license. A mere investigation would suffice for the cancellation of the license. The petitioner could not get inherent vested right to seek renewal of license as the very issue of license surveyor being temporary in nature.

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Though the petitioner has made a representation as per Annexures-E & F during 2015 and

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2016, no reply or renewal was made by respondent No.3. Respondent No.3 got issued Annexure-A stating that since the appeal is filed against the Judgment of acquittal passed by the Sessions Court, the renewal could not be entertained. I am of the considered view that Annexure-A issued by respondent No.3 is without any basis and against any provisions of law. As merely because appeal is filed against the order of acquittal the respondent is not absolved from considering the request for renewal of licence. Therefore, Annexure-A deserves to be quashed. Accordingly, the endorsement dated 26.08.2016 bearing No. SSLR/PMU/LS-003/15-16 issued by respondent No.3 as per Annexure-A to the writ petition is quashed .

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The second prayer sought for by the petitioner is to issue a direction to the respondent No.1 to renew his license by considering his representations dated 07.04.2015 and 28.07.2016 at Annexures-E & F. As contended by the learned AGA as per Rule 46-K when the Licensed Surveyor has abstained himself continuously for a period of four months, demands or

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accepts illegal gratification, is under investigation by the Government agency for misconduct, his license shall be cancelled. It is also seen that as per Rule 46-C no document has been produced by the petitioner that he has filed necessary application for renewal of his license one month from the date of expiry of the license.

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Learned counsel for petitioner is not sure whether such application is made by the petitioner before the respondent No.3.

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Considering the submission of the learned counsel for petitioner and learned AGA, I am of the considered opinion that respondent No.3 could verify that if any such an application is made by the petitioner one month from the date of expiry of his license. Further respondent No.1 shall consider the representations dated 07.04.2015 and 28.07.2016 made by the petitioner as per Annexures-E & F and also verify all other legal requirements mandated to consider the representation of petitioner in accordance with law and pass necessary suitable orders in that regard.

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Accordingly, a writ in the nature of

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mandamus issues to the respondent No.1 to consider the representations dated 07.04.2015 and 28.07.2016 at Annexures-E & F made by the petitioner and pass suitable orders in accordance with law. Petitioner is at liberty to file fresh representation, if necessary, by producing the copy of this order. The same shall be considered by the respondent No.3 in accordance with law within a period of three months from the date of such representation. It is made clear that this Court has not expressed any opinion on merits and de-merits of the petition .This order will not give any fresh cause of action for the petitioner for his entitlement for grant of license. Respondents shall strictly follow the procedure as per law.

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17. The writ petition is accordingly allowed.

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The learned AGA is permitted to file memo of appearance within ten days.

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SD/JUDGE

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T S Vijay Kumar v. the Commissioner

Case brief

What is this about?

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T S Vijay Kumar v. the Commissioner

Case brief

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